HAVING PAID ANY INTEREST IN EXCESS OF THAT
PERMITTED BY APPLICABLE LAW, THEN IT IS BORROWER'S AND LENDER'S EXPRESS INTENT
THAT ALL EXCESS AMOUNTS THERETOFORE COLLECTED BY LENDER SHALL BE CREDITED
AGAINST THE UNPAID PRINCIPAL AND ALL OTHER DEBT (OR, IF THE DEBT HAS BEEN OR
WOULD THEREBY BE PAID IN FULL, REFUNDED TO BORROWER), AND THE PROVISIONS OF THE
LOAN DOCUMENTS IMMEDIATELY BE DEEMED REFORMED AND THE AMOUNTS THEREAFTER
COLLECTIBLE THEREUNDER REDUCED, WITHOUT THE NECESSITY OF THE EXECUTION OF ANY
NEW DOCUMENT, SO AS TO COMPLY WITH APPLICABLE LAW, BUT SO AS TO PERMIT THE
RECOVERY OF THE FULLEST AMOUNT OTHERWISE CALLED FOR THEREUNDER.
ALL SUMS PAID
OR AGREED TO BE PAID TO LENDER FOR THE USE, FORBEARANCE OR DETENTION OF THE LOAN
SHALL, TO THE EXTENT PERMITTED BY APPLICABLE LAW, BE AMORTIZED, PRORATED,
ALLOCATED, AND SPREAD THROUGHOUT THE FULL STATED TERM OF THE LOAN UNTIL PAYMENT
IN FULL SO THAT THE RATE OR AMOUNT OF INTEREST ON ACCOUNT OF THE DEBT DOES NOT
EXCEED THE MAXIMUM LAWFUL RATE FROM TIME TO TIME IN EFFECT AND APPLICABLE TO THE
DEBT FOR SO LONG AS THE DEBT IS OUTSTANDING.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN ANY LOAN DOCUMENT, IT IS NOT THE INTENTION OF LENDER TO
ACCELERATE THE MATURITY OF ANY INTEREST THAT HAS NOT ACCRUED AT THE TIME OF SUCH
ACCELERATION OR TO COLLECT UNEARNED INTEREST AT THE TIME OF SUCH ACCELERATION.
10.18
CONFLICT; CONSTRUCTION OF DOCUMENTS.
IN THE EVENT OF ANY CONFLICT
BETWEEN THE PROVISIONS OF THIS AGREEMENT AND ANY OF THE OTHER LOAN DOCUMENTS,
THE PROVISIONS OF THIS AGREEMENT SHALL CONTROL.
THE PARTIES HERETO ACKNOWLEDGE
THAT EACH IS REPRESENTED BY SEPARATE COUNSEL IN CONNECTION 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.
90
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, SECTION 2.3.4 AND
SECTION 7.4.2 OF THIS AGREEMENT, ALL PREPAYMENTS, IF ANY, WHETHER VOLUNTARY OR
INVOLUNTARY, WILL BE ACCOMPANIED