IPSO FACTO, THE OBLIGATION TO
BE FULFILLED SHALL BE REDUCED TO THE MAXIMUM AMOUNT.
FOR THE PURPOSES OF
CALCULATING THE ACTUAL AMOUNT OF INTEREST PAID AND/OR PAYABLE HEREUNDER IN
RESPECT OF LAWS PERTAINING TO USURY OR SUCH OTHER LAWS, ALL SUMS PAID OR AGREED
TO BE PAID TO THE HOLDER HEREOF FOR THE USE, FORBEARANCE OR DETENTION OF THE
INDEBTEDNESS OF THE BORROWER EVIDENCED HEREBY, OUTSTANDING FROM TIME TO TIME
SHALL, TO THE EXTENT PERMITTED BY APPLICABLE LAW, BE AMORTIZED, PRO-RATED,
ALLOCATED AND SPREAD FROM THE DATE OF DISBURSEMENT OF THE PROCEEDS OF THE NOTES
UNTIL PAYMENT IN FULL OF ALL OF SUCH INDEBTEDNESS, SO THAT THE ACTUAL RATE OF
INTEREST ON ACCOUNT OF SUCH INDEBTEDNESS IS UNIFORM THROUGH THE TERM HEREOF.
THE TERMS AND PROVISIONS OF THIS SECTION SHALL CONTROL AND SUPERSEDE EVERY OTHER
PROVISION OF ALL AGREEMENTS BETWEEN THE BORROWER OR ANY ENDORSER OF THE NOTES
AND THE LENDERS.
B.
IF UNDER ANY CIRCUMSTANCES ANY LENDER SHALL EVER RECEIVE AN AMOUNT
WHICH WOULD EXCEED THE MAXIMUM AMOUNT, SUCH AMOUNT SHALL BE DEEMED A PAYMENT IN
REDUCTION OF THE PRINCIPAL AMOUNT OF THE LOANS AND SHALL BE TREATED AS A
VOLUNTARY PREPAYMENT UNDER SECTION 2.7A(I) AND SHALL BE SO APPLIED IN ACCORDANCE
WITH SECTION 2.7 HEREOF OR IF SUCH EXCESSIVE INTEREST EXCEEDS THE UNPAID BALANCE
OF THE LOANS AND ANY OTHER INDEBTEDNESS OF THE BORROWER IN FAVOR OF SUCH LENDER,
THE EXCESS SHALL BE DEEMED TO HAVE BEEN A PAYMENT MADE BY MISTAKE AND SHALL BE
REFUNDED TO THE BORROWER.
9.14
Headings.
Section and Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
107
9.15
Applicable Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9.16
Successors and Assigns.
This Agreement shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and
the successors and assigns of the Lenders (it being understood that the Lenders'
rights of assignment are subject to Section 9.1).
Neither the Borrower's rights
or obligations hereunder nor any interest therein may be assigned or delegated
by the Borrower without the prior written consent of all Lenders.
9.17
Consent to Jurisdiction and Service of Process.
A.
SUBMISSION TO JURISDICTION.
EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW
YORK CITY AND OF THE UNITED STATES DISTRICT COURT SITTING IN NEW YORK CITY, AND
ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH