WITH THE NEGOTIATION
AND DRAFTING OF THE LOAN DOCUMENTS AND THAT THE LOAN DOCUMENTS SHALL NOT BE
SUBJECT TO THE PRINCIPLE OF CONSTRUING THEIR MEANING AGAINST THE PARTY THAT
DRAFTED THEM.
10.19
NO THIRD PARTY BENEFICIARIES.
THE LOAN DOCUMENTS ARE SOLELY FOR THE
BENEFIT OF LENDER AND BORROWER AND NOTHING CONTAINED IN ANY LOAN DOCUMENT SHALL
BE DEEMED TO CONFER UPON ANYONE OTHER THAN THE LENDER AND BORROWER ANY RIGHT TO
INSIST UPON OR TO ENFORCE THE PERFORMANCE OR OBSERVANCE OF ANY OF THE
OBLIGATIONS CONTAINED THEREIN.
10.20
SPREAD MAINTENANCE PREMIUM.
BORROWER ACKNOWLEDGES THAT (A) LENDER IS
MAKING THE LOAN IN CONSIDERATION OF THE RECEIPT BY LENDER OF ALL INTEREST AND
OTHER BENEFITS INTENDED TO BE CONFERRED BY THE LOAN DOCUMENTS AND (B) IF
PAYMENTS OF PRINCIPAL ARE MADE TO LENDER PRIOR TO JUNE 14, 2008, FOR ANY REASON
WHATSOEVER, WHETHER VOLUNTARY, AS A RESULT OF LENDER'S ACCELERATION OF THE LOAN
AFTER AN EVENT OF DEFAULT, BY OPERATION OF LAW OR OTHERWISE, LENDER WILL NOT
RECEIVE ALL SUCH INTEREST AND OTHER BENEFITS AND MAY, IN ADDITION, INCUR COSTS.
FOR THESE REASONS, AND TO INDUCE LENDER TO MAKE THE LOAN, BORROWER AGREES THAT,
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 2.2.5, SECTION 2.3.2 AND SECTION 2.3.4
OF THIS AGREEMENT, ALL PREPAYMENTS, IF ANY, WHETHER VOLUNTARY OR INVOLUNTARY,
WILL BE ACCOMPANIED BY THE SPREAD MAINTENANCE PREMIUM.
SUCH SPREAD MAINTENANCE
PREMIUM SHALL BE REQUIRED WHETHER PAYMENT IS MADE BY BORROWER, BY A PERSON ON
BEHALF OF BORROWER, OR BY THE PURCHASER AT ANY FORECLOSURE SALE, AND MAY BE
INCLUDED IN ANY BID BY LENDER AT SUCH SALE.
BORROWER FURTHER ACKNOWLEDGES THAT
(A) IT IS A KNOWLEDGEABLE REAL ESTATE DEVELOPER AND/OR INVESTOR; (B) IT FULLY
UNDERSTANDS THE EFFECT OF THE PROVISIONS OF THIS SECTION 10.20, AS WELL AS THE
OTHER PROVISIONS OF THE LOAN DOCUMENTS; (C) THE MAKING OF THE LOAN BY LENDER AT
THE INTEREST RATE AND OTHER TERMS SET FORTH IN THE LOAN DOCUMENTS ARE SUFFICIENT
CONSIDERATION FOR BORROWER'S OBLIGATION TO PAY A SPREAD MAINTENANCE PREMIUM (IF
REQUIRED); AND (D) LENDER WOULD NOT MAKE THE LOAN ON THE TERMS SET FORTH HEREIN
WITHOUT THE INCLUSION OF SUCH PROVISIONS.
BORROWER ALSO ACKNOWLEDGES THAT THE
PROVISIONS OF THIS AGREEMENT LIMITING THE RIGHT OF PREPAYMENT AND PROVIDING FOR
THE PAYMENT OF THE SPREAD MAINTENANCE PREMIUM AND OTHER CHARGES SPECIFIED HEREIN
WERE INDEPENDENTLY NEGOTIATED AND BARGAINED FOR, AND CONSTITUTE A SPECIFIC
MATERIAL PART OF THE CONSIDERATION GIVEN BY BORROWER TO LENDER FOR THE MAKING OF
THE LOAN EXCEPT AS EXPRESSLY PERMITTED HEREUNDER.
10.21
ASSIGNMENT.
THE LOAN, THE NOTE, THE LOAN DOCUMENTS AND/OR LENDER'S
RIGHTS, TITLE, OBLIGATIONS AND INTERESTS THEREIN MAY BE ASSIGNED BY LENDER AND
ANY OF ITS SUCCESSORS AND ASSIGNS TO ANY PERSON AT ANY TIME IN ITS DISCRETION,
IN WHOLE OR IN PART, WHETHER BY OPERATION OF LAW (PURSUANT TO A MERGER OR OTHER
SUCCESSOR IN INTEREST) OR OTHERWISE.
UPON SUCH ASSIGNMENT, ALL
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REFERENCES TO LENDER IN THIS AGREEMENT AND IN ANY LOAN DOCUMENT SHALL BE DEEMED
TO REFER TO SUCH ASSIGNEE OR