Common use of Controlling General Provisions Clause in Contracts

Controlling General Provisions. The provisions in this Section 9 shall govern and control over any irreconcilably inconsistent provision contained in this Note or any of the other Loan Documents or any other instrument contemplated hereunder or thereunder. In no event shall the aggregate of all interest paid or payable by Borrower to Lender ever exceed the maximum rate of interest which may lawfully be charged to (or payable by) Borrower under applicable law on the Adjusted Principal Amount of this Note from time to time remaining unpaid. In this connection, it is expressly stipulated and agreed that it is the intent of Lender and Borrower in the execution and delivery of this Note to contract in strict compliance with any applicable usury laws. In furtherance of the foregoing, none of the terms of this Note, the Loan Documents (other than this Note) or any such other instruments contemplated hereunder or thereunder shall ever be construed to create a contract to charge or pay for interest in excess of the maximum interest rate permitted to be contracted for, charged to, or payable by Borrower under applicable law. Borrower and any guarantors, endorsers or other parties now or hereafter becoming liable for payment of this Note shall never be liable for interest in excess of the maximum interest that may be lawfully charged under applicable law, and the provisions of this Section 9 shall govern over all other provisions of the Loan Documents, and any other instruments evidencing or securing the Loan, should such provisions be in apparent conflict herewith. Specifically and without limiting the generality of the foregoing paragraph, it is expressly agreed that: (a) In the event of the payment of the Adjusted Principal Amount of this Note, prior to the due date for payment thereof, resulting from acceleration of maturity of this Note, if the aggregate amounts of interest accruing hereunder prior to such payment plus the amount of any interest accruing after such maturity up to the date of payment and plus any other amounts paid or accrued in connection with the other Loan Documents, including, if applicable, all or any portion of the value of any Common Stock issued to Lender under Section 3 of this Note, which by law are deemed interest under such Loan Documents and which aggregate amounts paid or accrued (if calculated in accordance with the provisions of this Note other than pursuant to this Section 9) would exceed the maximum lawful rate of interest which could be charged on the principal balance of this Note from the date hereof to the date of final payment thereof, then in such event the amount of such excess shall be credited, as of the date paid, toward the payment of principal of this Note so as to reduce the amount of the final payments of Adjusted Principal Amount due on this Note; (b) If under any circumstances the aggregate amounts paid under the Loan Documents prior to and incident to the final payment hereof, including, without limitation, if applicable, all or any portion of the value of any Common Stock issued to Lender under Section 3 of this Note, include amounts which by applicable law are deemed interest and which would exceed the maximum amount of interest which could lawfully have been charged or collected on this Note, Borrower stipulates that such payment and collection will have been and will be deemed to have been the result of a mathematical error on the part of both Borrower and Lender, and Lender shall promptly refund the amount of such excess (to the extent only of the excess of such payments above the maximum amount which could lawfully have been collected and retained) upon the discovery of such error by the party receiving such payment or notice thereof from the party making such payment; and (c) All calculations as to the rate of interest contracted for, charged or received under this Note or the other Loan Document which are made for the purposes of determining whether such rate exceeds the maximum rate of interest which may lawfully be charged shall be made, to the extent permitted by applicable usury laws, if any, by amortizing, prorating, allocating and spreading, in equal parts, during the period of the full stated term of the Loan evidenced hereby, all interest any time contracted for, charged or received from Borrower or otherwise by Lender in connection with such indebtedness. Notwithstanding anything contained in this Note or the other Loan Documents to the contrary, interest under this Note shall never exceed the lesser of (1) the highest non-usurious rate allowed by applicable law or (2) seventeen percent (17%) per annum on a compounded basis.

Controlling General Provisions. The provisions in this Section 9 shall govern and control over any irreconcilably inconsistent provision contained in this Note or any of the other Loan Documents or any other instrument contemplated hereunder or thereunder. In no event shall the aggregate of all interest paid or payable by Borrower to Lender ever exceed the maximum rate of interest which may lawfully be charged to (or payable by) Borrower under applicable law on the Adjusted Principal Amount of this Note from time to time remaining 16 unpaid. In this connection, it is expressly stipulated and agreed that it is the intent of Lender and Borrower in the execution and delivery of this Note to contract in strict compliance with any applicable usury laws. In furtherance of the foregoing, none of the terms of this Note, the Loan Documents (other than this Note) or any such other instruments contemplated hereunder or thereunder shall ever be construed to create a contract to charge or pay for interest in excess of the maximum interest rate permitted to be contracted for, charged to, or payable by Borrower under applicable law. Borrower and any guarantors, endorsers or other parties now or hereafter becoming liable for payment of this Note shall never be liable for interest in excess of the maximum interest that may be lawfully charged under applicable law, and the provisions of this Section 9 shall govern over all other provisions of the Loan Documents, and any other instruments evidencing or securing the Loan, should such provisions be in apparent conflict herewith. Specifically and without limiting the generality of the foregoing paragraph, it is expressly agreed that: (a) In the event of the payment of the Adjusted Principal Amount of this Note, prior to the due date for payment thereof, resulting from acceleration of maturity of this Note, if the aggregate amounts of interest accruing hereunder prior to such payment plus the amount of any interest accruing after such maturity up to the date of payment and plus any other amounts paid or accrued in connection with the other Loan Documents, including, if applicable, all or any portion of the value of any Common Stock issued to Lender under Section 3 of this Note, which by law are deemed interest under such Loan Documents and which aggregate amounts paid or accrued (if calculated in accordance with the provisions of this Note other than pursuant to this Section 9) would exceed the maximum lawful rate of interest which could be charged on the principal balance of this Note from the date hereof to the date of final payment thereof, then in such event the amount of such excess shall be credited, as of the date paid, toward the payment of principal of this Note so as to reduce the amount of the final payments of Adjusted Principal Amount due on this Note; (b) If under any circumstances the aggregate amounts paid under the Loan Documents prior to and incident to the final payment hereof, including, without limitation, if applicable, all or any portion of the value of any Common Stock issued to Lender under Section 3 of this Note, include amounts which by applicable law are deemed interest and which would exceed the maximum amount of interest which could lawfully have been charged or collected on this Note, Borrower stipulates that such payment and collection will have been and will be deemed to have been the result of a mathematical error on the part of both Borrower and Lender, and Lender shall promptly refund the amount of such excess (to the extent only of the excess of such payments above the maximum amount which could lawfully have been collected and retained) upon the 17 discovery of such error by the party receiving such payment or notice thereof from the party making such payment; and (c) All calculations as to the rate of interest contracted for, charged or received under this Note or the other Loan Document which are made for the purposes of determining whether such rate exceeds the maximum rate of interest which may lawfully be charged shall be made, to the extent permitted by applicable usury laws, if any, by amortizing, prorating, allocating and spreading, in equal parts, during the period of the full stated term of the Loan evidenced hereby, all interest any time contracted for, charged or received from Borrower or otherwise by Lender in connection with such indebtedness. Notwithstanding anything contained in this Note or the other Loan Documents to the contrary, interest under this Note shall never exceed the lesser of (1) the highest non-usurious rate allowed by applicable law or (2) seventeen percent (17%) per annum on a compounded basis.

Controlling General Provisions. The provisions in this Section 9 shall govern and control over any irreconcilably inconsistent provision contained in this Note or any of provision, the other Loan Documents or any other instrument contemplated hereunder or thereunder. In no event shall the aggregate of all interest paid or payable by Borrower to Lender ever exceed the maximum rate of interest which may lawfully be charged to (or payable by) Borrower under applicable law on the Adjusted Principal Amount of this Note from time to time remaining unpaid. In this connection, it is expressly stipulated and agreed that it is the intent of Lender and Borrower in the execution and delivery of this Note to contract in strict compliance with any applicable usury laws. In furtherance of the foregoing, none of the terms of this Note, the Loan Documents (other than this Note) or any such other instruments contemplated hereunder or thereunder shall ever be construed to create a contract to charge or pay for interest in excess of the maximum interest rate permitted to be contracted for, charged to, or payable by Borrower under applicable law. Borrower and any guarantors, endorsers or other parties now or hereafter becoming liable for payment of this Note shall never be liable for interest in excess of the maximum interest that may be lawfully charged under applicable law, and the provisions of this Section 9 shall govern over all other provisions of the Loan Documents, and any other instruments evidencing or securing the Loan, should such provisions be in apparent conflict herewith. Specifically and without limiting the generality of the foregoing paragraph, it is expressly agreed that: (a) In the event of the payment of the principal of the Adjusted Principal Amount of this Note, prior to the due date for payment thereof, resulting from acceleration of maturity of this Note, if the aggregate amounts of interest accruing hereunder prior to such payment plus the amount of any interest accruing after such maturity up to the date of payment and plus any other amounts paid or accrued in connection with the other Loan Documents, including, if applicable, all or any portion of the value of any Common Stock issued to Lender under Section 3 of this Note, which by law are deemed interest under such Loan Documents and which aggregate amounts paid or accrued (if calculated in accordance with the provisions of this Note other than pursuant to this Section 9) would exceed the maximum lawful rate of interest which could be charged on the principal balance of this Note from the date hereof to the date of final payment thereof, then in such event the amount of such excess shall be credited, as of the date paid, toward the payment of principal of this Note so as to reduce the amount of the final payments of Adjusted Principal Amount due on this Note; (b) If under any circumstances the aggregate amounts paid under the Loan Documents prior to and incident to the final payment hereof, including, 16 without limitation, if applicable, all or any portion of the value of any Common Stock issued to Lender under Section 3 of this Note, include amounts which by applicable law are deemed interest and which would exceed the maximum amount of interest which could lawfully have been charged or collected on this Note, Borrower stipulates that such payment and collection will have been and will be deemed to have been the result of a mathematical error on the part of both Borrower and Lender, and Lender shall promptly refund the amount of such excess (to the extent only of the excess of such payments above the maximum amount which could lawfully have been collected and retained) upon the discovery of such error by the party receiving such payment or notice thereof from the party making such payment; and (c) All calculations as to the rate of interest contracted for, charged or received under this Note or the other Loan Document which are made for the purposes of determining whether such rate exceeds the maximum rate of interest which may lawfully be charged shall be made, to the extent permitted by applicable usury laws, if any, by amortizing, prorating, allocating and spreading, in equal parts, during the period of the full stated term of the Loan evidenced hereby, all interest any time contracted for, charged or received from Borrower or otherwise by Lender in connection with such indebtedness. Notwithstanding anything contained in this Note or the other Loan Documents to the contrary, interest under this Note shall never exceed the lesser of (1) the highest non-usurious rate allowed by applicable law or (2) seventeen percent (17%) per annum on a compounded basis.