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.
10.20
YIELD 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 THE STATED MATURITY
DATE, 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 2.2.3,
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 BY
THE YIELD MAINTENANCE PREMIUM.
SUCH YIELD 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 YIELD 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 YIELD MAINTENANCE PREMIUM AND OTHER CHARGES SPECIFIED HEREIN WERE
INDEPENDENTLY
85
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.