ANY LOAN DOCUMENT OR OTHERWISE IN CONNECTION WITH THIS LOAN
TRANSACTION, THE PROVISIONS OF THIS SECTION SHALL GOVERN AND PREVAIL AND NEITHER
THE BORROWER NOR THE SURETIES, GUARANTORS, SUCCESSORS, OR ASSIGNS OF THE
BORROWER SHALL BE OBLIGATED TO PAY THE EXCESS AMOUNT OF SUCH INTEREST OR ANY
OTHER EXCESS SUM PAID FOR THE USE, FORBEARANCE, OR DETENTION OF SUMS LOANED
PURSUANT HERETO.
IN THE EVENT BANK EVER RECEIVES, COLLECTS, OR APPLIES AS
INTEREST ANY SUCH SUM, SUCH AMOUNT WHICH WOULD BE IN EXCESS OF THE MAXIMUM
AMOUNT PERMITTED BY APPLICABLE LAW SHALL BE APPLIED AS A PAYMENT AND REDUCTION
OF THE PRINCIPAL OF THE INDEBTEDNESS EVIDENCED BY THE NOTE; AND, IF THE
PRINCIPAL OF THE NOTE HAS BEEN PAID IN FULL, ANY REMAINING EXCESS SHALL
FORTHWITH BE PAID TO THE BORROWER.
IN DETERMINING WHETHER OR NOT THE INTEREST
PAID OR PAYABLE EXCEEDS THE HIGHEST LAWFUL RATE, THE BORROWER AND BANK SHALL, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, (A) CHARACTERIZE ANY NON-PRINCIPAL
PAYMENT AS AN EXPENSE, FEE, OR PREMIUM RATHER THAN AS INTEREST, (B) EXCLUDE
VOLUNTARY PREPAYMENTS AND THE EFFECTS THEREOF, AND (C) AMORTIZE, PRORATE,
ALLOCATE, AND SPREAD IN EQUAL OR UNEQUAL PARTS THE TOTAL AMOUNT OF INTEREST
THROUGHOUT THE ENTIRE CONTEMPLATED TERM OF THE INDEBTEDNESS EVIDENCED BY THE
NOTE SO THAT INTEREST FOR THE ENTIRE TERM DOES NOT EXCEED THE HIGHEST LAWFUL
RATE.
SECTION 7.10.
NO COURSE OF DEALING.
NO COURSE OF DEALING BY BORROWER WITH
BANK, NO COURSE OF PERFORMANCE AND NO TRADE PRACTICES OR OTHER EXTRINSIC
EVIDENCE OF ANY NATURE MAY BE USED TO CONTRADICT, VARY, SUPPLEMENT OR MODIFY ANY
TERM OF THIS AGREEMENT.
SECTION 7.11.
JURY TRIAL WAIVER.
TO THE EXTENT NOT PROHIBITED BY
APPLICABLE LAW, BORROWER AND BANK HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY THAT BORROWER OR BANK MAY HAVE IN
ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS AGREEMENT
OR THE OBLIGATIONS. BORROWER REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE OR
AGENT OF BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BANK WILL NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS RIGHT TO JURY TRIAL WAIVER.
BORROWER ACKNOWLEDGES THAT BANK HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION.
14
SECTION 7.12.
NO ORAL AGREEMENTS.
THIS AGREEMENT, THE NOTE AND THE OTHER
LOAN DOCUMENTS REFERRED TO HEREIN REPRESENT THE FINAL AGREEMENT AMONG THE
PARTIES HERETO AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES HERETO.
THERE ARE
NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO.
SECTION 7.13.
USA PATRIOT ACT NOTIFICATION. THE FOLLOWING NOTIFICATION IS
PROVIDED TO BORROWER PURSUANT TO SECTION 326 OF THE USA PATRIOT ACT OF 2001, 31
U.S.C. SECTION 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. TO HELP THE
GOVERNMENT FIGHT THE FUNDING OF TERRORISM AND MONEY LAUNDERING ACTIVITIES,
FEDERAL LAW REQUIRES ALL FINANCIAL INSTITUTIONS TO OBTAIN, VERIFY, AND RECORD
INFORMATION THAT IDENTIFIES EACH PERSON OR ENTITY THAT