PARTICIPANT IN, OR ANY PROSPECTIVE ASSIGNEE OF OR
PARTICIPANT IN, ANY OF ITS RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT, (F) WITH
THE WRITTEN CONSENT OF BORROWER OR (G) TO THE EXTENT SUCH INFORMATION
(I) BECOMES PUBLICLY AVAILABLE OTHER THAN AS A RESULT OF A BREACH OF THIS
SECTION OR (II) BECOMES AVAILABLE TO LENDER ON A NONCONFIDENTIAL BASIS FROM A
SOURCE OTHER THAN BORROWER, ANY OF ITS SUBSIDIARIES OR ANY OTHER OBLIGOR.
FOR
PURPOSES OF THIS SECTION, "INFORMATION" MEANS ALL INFORMATION RECEIVED FROM
BORROWER, ANY OTHER OBLIGOR OR ANY SUBSIDIARY RELATING TO BORROWER, ANY OTHER
OBLIGOR OR ANY SUBSIDIARY OR ANY OF THEIR RESPECTIVE BUSINESSES, OTHER THAN ANY
SUCH INFORMATION THAT IS AVAILABLE TO LENDER ON A NONCONFIDENTIAL BASIS PRIOR TO
DISCLOSURE BY BORROWER, ANY OTHER OBLIGOR OR ANY SUBSIDIARY, PROVIDED THAT, IN
THE CASE OF INFORMATION RECEIVED FROM A BORROWER, ANY OTHER OBLIGOR OR ANY
SUBSIDIARY AFTER THE DATE HEREOF, SUCH INFORMATION IS CLEARLY IDENTIFIED AT THE
TIME OF DELIVERY AS CONFIDENTIAL.
ANY PERSON REQUIRED TO MAINTAIN THE
CONFIDENTIALITY OF INFORMATION AS PROVIDED IN THIS SECTION SHALL BE CONSIDERED
TO HAVE COMPLIED WITH ITS OBLIGATION TO DO SO IF SUCH PERSON HAS EXERCISED THE
SAME DEGREE OF CARE TO MAINTAIN THE CONFIDENTIALITY OF SUCH INFORMATION AS SUCH
PERSON WOULD ACCORD TO ITS OWN CONFIDENTIAL INFORMATION.
9.9
COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED IN ANY NUMBER OF COUNTERPARTS, INCLUDING VIA FACSIMILE, EACH OF WHICH
SHALL BE DEEMED TO BE AN ORIGINAL, BUT ALL SUCH SEPARATE COUNTERPARTS SHALL
TOGETHER CONSTITUTE BUT ONE AND THE SAME INSTRUMENT.
9.10
SEVERABILITY.
ANY PROVISION OF THIS AGREEMENT
WHICH IS FOR ANY REASON PROHIBITED OR FOUND OR HELD INVALID OR UNENFORCEABLE BY
ANY GOVERNMENTAL AUTHORITY SHALL BE INEFFECTIVE TO THE EXTENT OF SUCH
PROHIBITION OR INVALIDITY OR UNENFORCEABILITY WITHOUT INVALIDATING THE REMAINING
PROVISIONS HEREOF IN SUCH JURISDICTION OR AFFECTING THE VALIDITY OR
ENFORCEABILITY OF SUCH PROVISION IN ANY OTHER JURISDICTION.
48
9.11
INTEREST AND CHARGES.
IT IS NOT THE INTENTION OF
ANY PARTIES TO THIS AGREEMENT TO MAKE AN AGREEMENT IN VIOLATION OF THE LAWS OF
ANY APPLICABLE JURISDICTION RELATING TO USURY.
REGARDLESS OF ANY PROVISION IN
ANY LOAN DOCUMENT, LENDER SHALL NEVER BE ENTITLED TO RECEIVE, COLLECT OR APPLY,
AS INTEREST ON THE OBLIGATIONS, ANY AMOUNT IN EXCESS OF THE MAXIMUM AMOUNT.
IF
LENDER EVER RECEIVES, COLLECTS OR APPLIES, AS INTEREST, ANY SUCH EXCESS, SUCH
AMOUNT WHICH WOULD BE EXCESSIVE INTEREST SHALL BE DEEMED A PARTIAL REPAYMENT OF
PRINCIPAL BY BORROWER.
IN DETERMINING WHETHER OR NOT THE INTEREST PAID OR
PAYABLE, UNDER ANY SPECIFIC CONTINGENCY, EXCEEDS THE MAXIMUM AMOUNT, BORROWER
AND LENDER SHALL, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW,
(A) CHARACTERIZE ANY NONPRINCIPAL PAYMENT AS AN EXPENSE, FEE OR PREMIUM RATHER
THAN AS INTEREST, (B) EXCLUDE VOLUNTARY PREPAYMENTS AND THE EFFECT THEREOF, AND
(C) AMORTIZE, PRORATE, ALLOCATE AND SPREAD IN EQUAL PARTS, THE TOTAL AMOUNT OF
INTEREST THROUGHOUT THE ENTIRE CONTEMPLATED TERM OF THE OBLIGATIONS SO THAT THE
INTEREST RATE IS UNIFORM THROUGHOUT THE ENTIRE TERM OF THE OBLIGATIONS;
PROVIDED, HOWEVER, THAT