PARTICIPANT WERE A LENDER; PROVIDED
THAT, IN THE CASE OF SECTION 2.10, SUCH PARTICIPANT SHALL HAVE COMPLIED WITH THE
REQUIREMENTS OF SAID SECTION, AND PROVIDED, FURTHER, THAT NO PARTICIPANT SHALL
BE ENTITLED TO RECEIVE ANY GREATER AMOUNT PURSUANT TO SECTION 2.10 THAN THE
TRANSFEROR LENDER WOULD HAVE BEEN ENTITLED TO RECEIVE IN RESPECT OF THE AMOUNT
OF THE PARTICIPATION TRANSFERRED BY SUCH TRANSFEROR LENDER TO SUCH PARTICIPANT
HAD NO SUCH TRANSFER OCCURRED.
(B)
LENDER MAY FROM TIME TO TIME ELECT TO ENTER
INTO A SERVICING AGREEMENT WITH A SERVICER, PURSUANT TO WHICH THE SERVICER SHALL
BE APPOINTED TO SERVICE AND ADMINISTER THE LOAN AND THE ACCOUNT COLLATERAL IN
ACCORDANCE WITH THE TERMS HEREOF AND TO EXERCISE ANY AND ALL OTHER RIGHTS OF
LENDER WITH RESPECT TO THE LOAN AS SET FORTH IN SUCH SERVICING AGREEMENT.
LENDER SHALL PROMPTLY NOTIFY BORROWER IF LENDER SHALL ELECT TO APPOINT OR CHANGE
THE SERVICER, AND ALL NOTICES AND OTHER COMMUNICATIONS FROM BORROWER TO LENDER
SHALL BE DELIVERED TO THE SERVICER WITH A COPY CONCURRENTLY DELIVERED TO THE
LENDER, AND ANY NOTICE, DIRECTION OR OTHER COMMUNICATION FROM THE SERVICER TO
BORROWER SHALL HAVE THE SAME FORCE AND EFFECT AS A NOTICE, DIRECTION OR
COMMUNICATION FROM LENDER.
THE SERVICER SHALL BE ENTITLED TO BE REIMBURSED FOR
ANY COST, EXPENSE OR LIABILITY WHICH IS INCURRED BY THE SERVICER PURSUANT TO
SUCH SERVICING AND ADMINISTRATIVE DUTIES AND WHICH WOULD OTHERWISE BE
REIMBURSABLE TO LENDER UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN THE
SAME MANNER AND TO THE SAME EXTENT AS IF LENDER INCURRED SUCH COST, EXPENSE OR
LIABILITY IN THE FIRST PLACE.
THE PARTIES HERETO ACKNOWLEDGE AND
109
AGREE THAT THE SERVICER SHALL BE A THIRD PARTY BENEFICIARY TO THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS.
SECTION 9.10.
SEVERABILITY.
WHEREVER POSSIBLE, EACH
PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED IN SUCH MANNER AS TO BE
EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY PROVISION OF THIS AGREEMENT
SHALL BE PROHIBITED BY OR INVALID UNDER APPLICABLE LAW, SUCH PROVISION SHALL BE
INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT
INVALIDATING THE REMAINDER OF SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS
AGREEMENT.
SECTION 9.11.
PREFERENCES.
LENDER SHALL HAVE NO
OBLIGATION TO MARSHAL ANY ASSETS IN FAVOR OF BORROWER OR ANY OTHER PARTY OR
AGAINST OR IN PAYMENT OF ANY OR ALL OF THE OBLIGATIONS OF BORROWER PURSUANT TO
THIS AGREEMENT, THE NOTE OR ANY OTHER LOAN DOCUMENT.
LENDER SHALL HAVE THE
CONTINUING AND EXCLUSIVE RIGHT TO APPLY OR REVERSE AND REAPPLY ANY AND ALL
PAYMENTS BY BORROWER TO ANY PORTION OF THE OBLIGATIONS OF BORROWER HEREUNDER,
PROVIDED THAT SUCH APPLICATION OR REAPPLICATION IS PERFORMED BY LENDER IN
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT OR ANY OTHER APPLICABLE LOAN
DOCUMENT.
TO THE EXTENT BORROWER MAKES A PAYMENT OR PAYMENTS TO LENDER FOR
BORROWER'S BENEFIT, WHICH PAYMENT OR PROCEEDS OR ANY PART THEREOF ARE
SUBSEQUENTLY INVALIDATED, DECLARED TO BE FRAUDULENT OR PREFERENTIAL, SET ASIDE
OR REQUIRED TO BE REPAID TO A TRUSTEE, RECEIVER OR