Maximum Interest. Regardless of any provision contained in this Agreement or any of the Loan Documents, in no event shall the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by Bank, all interest at any time contracted for, charged or received from Borrower in connection with this Agreement shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein).
Appears in 1 contract
Maximum Interest. Regardless of any provision contained in this Agreement or any of the Loan Documents, in no contingency or event whatsoever shall the aggregate of all amounts that are contracted for, charged or collected received by Agent and Lenders pursuant to the terms of this Agreement, the Note Agreement or any of the other Loan Documents, Documents and that are deemed interest under Applicable Law, Law exceed the Maximum Ratehighest rate permissible under any Applicable Law. No provision of agreements, conditions, provisions or stipulations contained in this Agreement or in any of the other Loan Documents or the exercise by Bank Agent of the right to accelerate the payment or the maturity of all or any portion of the Obligations, or the exercise of any right hereunder or under option whatsoever contained in any of the Loan Document Documents, or the prepayment by Borrower Borrowers of any of the Obligations Obligations, or the occurrence of any contingency whatsoever, shall entitle Bank Agent or any Lender to charge or receive, or to require Borrower to payin any event, interest or any amounts charges, amounts, premiums or fees deemed interest by Applicable Law (such amounts being interest, charges, amounts, premiums and fees referred to herein collectively as "Interest") in excess of the Maximum Rate and in no event shall Borrowers be obligated to pay Interest exceeding such Maximum Rate, ; and all provisions hereof agreements, conditions or stipulations, if any, which may in any Loan Document which may purport event or contingency whatsoever operate to require Borrower bind, obligate or compel Borrowers to pay Interest exceeding the Maximum Rate shall be without binding force or effect effect, at law or in equity, to the extent only of the excess of Interest over such Maximum Rate. Any If any Interest is charged or received in excess of the Maximum Rate ("Excess"), each Borrower acknowledges and stipulates that any such charge or receipt shall be conclusively presumed to be the result of an accident and bona fide error, and shallsuch Excess, to the extent received by Bankreceived, at the option of Bank, either shall be applied first to reduce the principal amount Obligations and the balance, if any, returned to Borrowers, it being the intent of the Obligations parties hereto not to enter into a usurious or returned to Borrowerotherwise illegal relationship. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestany Interest that has not otherwise accrued on the date of such acceleration, and no Agent and Lenders do not intend to collect any unearned Interest in the event of any such acceleration. Each Borrower recognizes that, with fluctuations in the rates of interest will be collected by Bankset forth in SECTION 2.1.1 of this Agreement, and the Maximum Rate, such an unintentional result could inadvertently occur. All monies paid to Bank Agent or any Lender hereunder or under any of the other Loan Documents Documents, whether at maturity or by prepayment, shall be subject to any rebate of unearned interest Interest as and to the extent required by Applicable Law. By the execution of this Agreement, each Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by such Borrower of such Excess, and (ii) such Borrower shall not seek or pursue any other remedy, legal or equitable, against BankAgent or any Lender, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by BankAgent or any Lender, all interest Interest at any time contracted for, charged or received from Borrower Borrowers in connection with this Agreement any of the Loan Documents shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower Borrowers, Agent and Bank Lenders shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section SECTION 2.10 shall be deemed to be incorporated into the Note and each every Loan Document (whether or not any provision of this Section is referred to therein). All such Loan Documents and communications relating to any Interest owed by Borrowers and all figures set forth therein shall, for the sole purpose of computing the extent of Obligations, be automatically recomputed by Borrowers, and by any court considering the same, to give effect to the adjustments or credits required by this SECTION 2.10.
Appears in 1 contract
Sources: Loan and Security Agreement (Tropical Sportswear International Corp)
Maximum Interest. Regardless It is the intention of any provision contained in the parties hereto to conform strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the obligations of the Borrower to the Administrative Agent and each Lender under this Agreement shall be subject to the limitation that payments of interest shall not be required to the extent that receipt thereof would be contrary to provisions of law applicable to the Administrative Agent or any such Lender limiting rates of interest which may be charged or collected
(a) the Loan Documents, in no event provisions of this Section shall govern and control; (b) the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed consideration which constitutes interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants applicable law that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been is contracted for, charged or received by Bankunder this Agreement, all interest at or under any time contracted for, charged of the other aforesaid agreements or received from Borrower otherwise in connection with this Agreement by the Administrative Agent or such Lender shall under no circumstances exceed the maximum amount of interest allowed by applicable law (such maximum lawful interest rate, if any, with respect to such Lender herein called the “Highest Lawful Rate”), and any excess shall be credited to the Borrower by the Administrative Agent or such Lender (or, if such consideration shall have been paid in full, such excess refunded to the Borrower); (c) all sums paid, or agreed to be paid, to the Administrative Agent or such Lender for the use, forbearance and detention of the Indebtedness of the Borrower to the Administrative Agent or such Lender hereunder shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of such Indebtedness until payment in full so that the Obligationsactual rate of interest is uniform throughout the full term thereof; and (d) if at any time the interest provided pursuant to Section 4.1 together with any other fees payable pursuant to this Agreement and the other Loan Documents and deemed interest under applicable law, exceeds that amount which would have accrued at the Highest Lawful Rate, the amount of interest and any such fees to accrue to the Administrative Agent or such Lender pursuant to this Agreement shall be limited, notwithstanding anything to the contrary in this Agreement to that amount which would have accrued at the Highest Lawful Rate, but any subsequent reductions, as applicable, shall not reduce the interest to accrue to the Administrative Agent or such Lender pursuant to this Agreement below the Highest Lawful Rate until the total amount of interest accrued pursuant to this Agreement and such fees deemed to be interest equals the amount of interest which would have accrued to the Administrative Agent or such Lender if a varying rate per annum equal to the interest provided pursuant to Section 3.2 had at all times been in effect, plus the amount of fees which would have been received but for the effect of this Section. Borrower and Bank shallFor purposes of Section 303.201 of the Texas Finance Code, as amended, to the maximum extent, if any, applicable to the Administrative Agent or a Lender, the Borrower agrees that the Highest Lawful Rate shall be the “indicated (weekly) rate ceiling” as defined in said Section, provided that the Administrative Agent or such Lender may also rely, to the extent permitted by applicable laws, on alternative maximum rates of interest under Applicable Law, other laws applicable to the Administrative Agent or such Lender if greater. Chapter 346 of the Texas Finance Code (i) characterize any nonwhich regulates certain revolving credit loan accounts and revolving tri-principal payment as an expense, fee party accounts shall not apply to this Agreement or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each other Loan Document (whether or not any provision of this Section is referred to therein)Documents.
Appears in 1 contract
Sources: Credit Agreement (Noble Energy Inc)
Maximum Interest. Regardless It is the intention of the parties hereto to conform strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the obligations of the Borrower to the Administrative Agent and each Lender under this Agreement shall be subject to the limitation that payments of interest shall not be required to the extent that receipt thereof would be contrary to provisions of law applicable to the Administrative Agent or such Lender limiting rates of interest which may be charged or collected by the Administrative Agent or such Lender. Accordingly, if the transactions contemplated hereby would be usurious under applicable law (including the Federal and state laws of the United States of America, or of any provision contained other jurisdiction whose laws may be mandatorily applicable) with respect to the Administrative Agent or a Lender then, in that event, notwithstanding anything to the contrary in this Agreement or any Agreement, it is agreed as follows: (a) the provisions of the Loan Documents, in no event this Section shall govern and control; (b) the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed consideration which constitutes interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants applicable law that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been is contracted for, charged or received by Bankunder this Agreement, all interest at or under any time contracted for, charged of the other aforesaid agreements or received from Borrower otherwise in connection with this Agreement by the Administrative Agent or such Lender shall under no circumstances exceed the maximum amount of interest allowed by applicable law (such maximum lawful interest rate, if any, with respect to such Lender herein called the “Highest Lawful Rate”), and any excess shall be credited to the Borrower by the Administrative Agent or such Lender (or, if such consideration shall have been paid in full, such excess refunded to the Borrower); (c) all sums paid, or agreed to be paid, to the Administrative Agent or such Lender for the use, forbearance and detention of the Indebtedness of the Borrower to the Administrative Agent or such Lender hereunder shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of such Indebtedness until payment in full so that the Obligationsactual rate of interest is uniform throughout the full term thereof; and (d) if at any time the interest provided pursuant to Section 3.2 together with any other fees payable pursuant to this Agreement and the other Loan Documents and deemed interest under applicable law, exceeds that amount which would have accrued at the Highest Lawful Rate, the amount of interest and any such fees to accrue to the Administrative Agent or such Lender pursuant to this Agreement shall be limited, notwithstanding anything to the contrary in this Agreement to that amount which would have accrued at the Highest Lawful Rate, but any subsequent reductions, as applicable, shall not reduce the interest to accrue to the Administrative Agent or such Lender pursuant to this Agreement below the Highest Lawful Rate until the total amount of interest accrued pursuant to this Agreement and such fees deemed to be interest equals the amount of interest which would have accrued to the Administrative Agent or such Lender if a varying rate per annum equal to the interest provided pursuant to Section 3.2 had at all times been in effect, plus the amount of fees which would have been received but for the effect of this Section. Borrower and Bank shallFor purposes of Section 303.201 of the Texas Finance Code, as amended, to the maximum extent, if any, applicable to the Administrative Agent or a Lender, the Borrower agrees that the Highest Lawful Rate shall be the “indicated (weekly) rate ceiling” as defined in said Section, provided that the Administrative Agent or such Lender may also rely, to the extent permitted by applicable laws, on alternative maximum rates of interest under Applicable Law, (i) characterize any non-principal payment as an expense, fee other laws applicable to the Administrative Agent or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)such Lender if greater.
Appears in 1 contract
Maximum Interest. Regardless of Notwithstanding any provision contained in this Agreement or any of the Loan Documents, in no event shall the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement contrary contained herein or in any other Loan Document, Lender shall not collect a rate of the Loan Documents interest on any obligation or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment liability due and owing by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") Lender in excess of the Maximum Ratemaximum contract rate of interest permitted by applicable law (such excess referred to as "Excess Interest"). Lender and Borrower agree that the interest laws of the State of Arizona shall govern the relationship among them and understand and believe that the transactions contemplated by the Loan Documents comply with the usury laws of the State of Arizona, but in the event of a final adjudication to the contrary, Borrower shall be obligated to pay, nunc pro tunc, to Lender only such interest as then shall be permitted by the laws of the state found to govern the contract relationship between Lender and all provisions hereof Borrower. If any Excess Interest is provided for or determined by a court of competent jurisdiction to have been provided for in this Loan Agreement or any other Loan Document which may purport to require Document, then in such event (i) Borrower shall not be obligated to pay such Excess Interest, (ii) any Excess Interest exceeding the Maximum Rate collected by Lender shall be without binding force or effect be, at Lender's option, (A) applied to the extent only of the excess of Interest over Principal Balance in such Maximum Rate. Any Interest charged manner as Lender may elect or received to accrued and unpaid interest not in excess of the maximum rate permitted by applicable law (the "Maximum Rate") or (B) refunded to the payor thereof, (iii) the interest rates provided for herein (the "Stated Rate") shall be automatically reduced to the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject deemed to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excesshave been, and shall be, modified to reflect such reduction and (iiiv) Borrower shall not seek or pursue have any other remedy, legal or equitable, action against Bank, based in whole or in part upon contracting for, charging or receiving Lender for any Interest in excess damages arising out of the Maximum Rate. For the purpose payment or collection of determining whether or not any such Excess has been contracted for, charged or received by Bank, all interest at any time contracted for, charged or received from Borrower in connection with this Agreement shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein).Interest; provided,
Appears in 1 contract
Sources: Loan Agreement (Practice Works Inc)
Maximum Interest. Regardless It is expressly stipulated and agreed to be the intent of any provision contained in this Agreement Borrower and Bank at all times to comply strictly with the applicable Texas law governing the maximum rate or amount of interest payable on the indebtedness evidenced by the Note or any Loan Document, and the Related Indebtedness (or applicable United States federal law to the extent that it permits Bank to contract for, charge, take, reserve or receive a greater amount of interest than under Texas law). If the applicable law is ever judicially interpreted so as to render usurious any amount (a) contracted for, charged, taken, reserved or received pursuant to any Note, any of the other Loan Documents or any other communication or writing by or between Borrower and Bank related to the transaction or transactions that are the subject matter of the Loan Documents, in no event shall the aggregate of all amounts that are (b) contracted for, charged charged, taken, reserved or collected pursuant to the terms received by reason of this Agreement, the Note or any Bank’s exercise of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, Note and/or any and no such interest will be collected all indebtedness paid or payable by Bank. All monies paid Borrower to Bank hereunder or under any of the Loan Documents shall be subject pursuant to any rebate of unearned interest Loan Document other than such Note (such other indebtedness being referred to in this Section as and to the extent required “Related Indebtedness”), or (c) Borrower will have paid or Bank will have received by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return reason of any Excess shall constitute the acceptance prepayment by Borrower of such Excessany Note and/or the Related Indebtedness, then it is Borrower’s and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest ’s express intent that all amounts charged in excess of the Maximum Rate. For Lawful Rate shall be automatically canceled, ab initio, and all amounts in excess of the purpose Maximum Lawful Rate theretofore collected by Bank shall be credited on the principal balance of determining whether such Note and/or the Related Indebtedness (or, if such Note and the Related Indebtedness have been or not would thereby be paid in full, refunded to Borrower), and the provisions of such Note and the other Loan Documents shall immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of any Excess new document, so as to comply with the applicable law, but so as to permit the recovery of the fullest amount otherwise called for hereunder and thereunder; provided, however, if such Note has been paid in full before the end of the stated term of such Note, then Borrower and Bank agree that Bank shall, with reasonable promptness after Bank discovers or is advised by ▇▇▇▇▇▇▇▇ that interest was received in an amount in excess of the Maximum Lawful Rate, either refund such excess interest to Borrower and/or credit such excess interest against such Note and/or any Related Indebtedness then owing by Borrower to Bank. Borrower hereby agrees that as a condition precedent to any claim or counterclaim (in which event such proceeding shall be abated for such time period) seeking usury penalties against Bank, ▇▇▇▇▇▇▇▇ will provide written notice to Bank, advising Bank in reasonable detail of the nature and amount of the violation, and Bank shall have sixty (60) days after receipt of such notice in which to correct such usury violation, if any, by either refunding such excess interest to Borrower or crediting such excess interest against such Note to which the alleged violation relates and/or the Related Indebtedness then owing by Borrower to Bank. All sums contracted for, charged charged, taken, reserved or received by BankBank for the use, all interest at forbearance or detention of any time contracted for, charged or received from Borrower in connection with this Agreement debt evidenced by such Note and/or the Related Indebtedness shall, to the extent permitted by Applicable Lawapplicable law, be amortizedamortized or spread, proratedusing the actuarial method, allocated and spread in equal parts throughout the full stated term of such Note and/or the ObligationsRelated Indebtedness (including any and all renewal and extension periods) until payment in full so that the rate or amount of interest on account of such Note and/or the Related Indebtedness does not exceed the Maximum Lawful Rate from time to time in effect and applicable to such Note and/or the Related Indebtedness for so long as debt is outstanding. Borrower In no event shall the provisions of Chapter 346 of the Texas Finance Code which regulates certain revolving credit loan accounts and Bank shall, revolving triparty accounts apply to such Note and/or any of the Related Indebtedness. Notwithstanding anything to the maximum extent permitted under Applicable Lawcontrary contained herein or in any of the other Loan Documents, (i) characterize it is not the intention of Bank to accelerate the maturity of any non-principal payment as an expense, fee interest that has not accrued at the time of such acceleration or premium rather than as Interest and (ii) exclude voluntary prepayments and to collect unearned interest at the effects thereof. The provisions time of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)such acceleration.
Appears in 1 contract
Maximum Interest. Regardless of any provision contained in this Agreement or any of the Loan Documents, in no contingency or event whatsoever shall the aggregate of all amounts that are contracted for, charged or collected received by Agent and Lenders pursuant to the terms of this Agreement, the Note Agreement or any of the other Loan Documents, Documents and that are deemed interest under Applicable Law, Law exceed the Maximum Ratehighest rate permissible under any Applicable Law. No provision of agreements, conditions, provisions or stipulations contained in this Agreement or in any of the other Loan Documents or the exercise by Bank Agent of the right to accelerate the payment or the maturity of all or any portion of the Obligations, or the exercise of any right hereunder or under option whatsoever contained in any of the Loan Document Documents, or the prepayment by Borrower Borrowers of any of the Obligations Obligations, or the occurrence of any contingency whatsoever, shall entitle Bank Agent or any Lender to charge or receive, or to require Borrower to payreceive in any event, interest or any amounts charges, amounts, premiums or fees deemed interest by Applicable Law (such amounts being interest, charges, amounts, premiums and fees referred to herein collectively as "Interest") in excess of the Maximum Rate and in no event shall Borrowers be obligated to pay Interest exceeding such Maximum Rate, and all provisions hereof agreements, conditions or stipulations, if any, which may in any Loan Document which may purport event or contingency whatsoever operate to require Borrower bind, obligate or compel Borrowers to pay Interest exceeding the Maximum Rate shall be without binding force or effect effect, at law or in equity, to the extent only of the excess of Interest over such Maximum Rate. Any If any Interest is charged or received in excess of the Maximum Rate ("Excess"), each Borrower acknowledges and stipulates that any such charge or receipt shall be conclusively presumed to be the result of an accident and bona fide error, and shallsuch Excess, to the extent received by Bankreceived, at the option of Bank, either shall be applied first to reduce the principal amount Obligations and the balance, if any, returned to Borrowers, it being the intent of the Obligations parties hereto not to enter into a usurious or returned to Borrowerotherwise illegal relationship. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestany Interest that has not otherwise accrued on the date of such acceleration, and no Agent and Lenders do not intend to collect any unearned Interest in the event of any such acceleration. Each Borrower recognizes that, with fluctuations in the rates of interest will be collected by Bankset forth in Section 2.1.1 of this Agreement or in the Notes, and the Maximum Rate, such an unintentional result could inadvertently occur. All monies paid to Bank Agent or any Lender hereunder or under any of the other Loan Documents Documents, whether at maturity or by prepayment, shall be subject to any rebate of unearned interest Interest as and to the extent required by Applicable Law. By the execution of this Agreement, each Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by such Borrower of such Excess, and (ii) such Borrower shall not seek or pursue any other remedy, legal or equitable, against BankAgent or any Lender, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by BankAgent or any Lender, all interest Interest at any time contracted for, charged or received from Borrower Borrowers in connection with this Agreement any of the Loan Documents shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower Borrowers, Agent and Bank Lenders shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section 2.11 shall be deemed to be incorporated into the Note and each every Loan Document (whether or not any provision of this Section is referred to therein). All such Loan Documents and communications relating to any Interest owed by Borrowers and all figures set forth therein shall, for the sole purpose of computing the extent of Obligations, be automatically recomputed by Borrowers, and by any court considering the same, to give effect to the adjustments or credits required by this Section 2.11.
Appears in 1 contract
Sources: Loan and Security Agreement (Danka Business Systems PLC)
Maximum Interest. Regardless It is the intention of the parties hereto to conform strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the Obligations of each Borrower to each Lender under this Agreement shall be subject to the limitation that payments of interest shall not be required to the extent that receipt thereof would be contrary to provisions of law applicable to such Lender limiting rates of interest which may be charged or collected by such Lender. Accordingly, if the transactions contemplated hereby would be usurious under applicable law (including the Federal and state laws of the United States of America, or of any provision contained other jurisdiction whose laws may be mandatorily applicable) with respect to a Lender, then, in that event, notwithstanding anything to the contrary in this Agreement or any Agreement, it is agreed as follows: (a) the provisions of the Loan Documents, in no event this Section 4.11 shall govern and control; (b) the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed consideration which constitutes interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants applicable law that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been is contracted for, charged or received by Bankunder this Agreement, all interest at or under any time contracted for, charged other Loan Document or received from Borrower otherwise in connection with this Agreement by such Lender shall under no circumstances exceed the maximum amount of interest allowed by applicable law (such maximum lawful interest rate, if any, with respect to such Lender herein called the "Highest Lawful Rate"), and any excess shall be credited to such Borrower by such Lender (or, if such consideration shall have been paid in full, such excess promptly refunded to such Borrower); (c) all sums paid, or agreed to be paid, to such Lender for the use, forbearance and detention of the indebtedness of such Borrower to such Lender hereunder shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of such indebtedness until payment in full so that the Obligationsactual rate of interest is uniform throughout the full term thereof; and (d) if at any time the interest provided pursuant to Section 3.2, together with any other fees and expenses payable pursuant to this Agreement and deemed interest under applicable law, exceeds that amount which would have accrued at the Highest Lawful Rate, then the amount of interest and any such fees to accrue to such Lender pursuant to this Agreement shall be limited, notwithstanding anything to the contrary in this Agreement, to that amount which would have accrued at the Highest Lawful Rate, but any subsequent reductions, as applicable, shall not reduce the interest to accrue to such Lender pursuant to this Agreement below the Highest Lawful Rate until the total amount of interest accrued pursuant to this Agreement and such fees deemed to be interest equals the amount of interest which would have accrued to such Lender if a varying rate per annum equal to the interest provided pursuant to Section 3.2 had at all times been in effect, plus the amount of fees which would have been received but for the effect of this Section 4.11. Borrower and Bank shallFor purposes of Chapter 303 of the Texas Finance Code, as amended, to the maximum extent applicable, each Borrower agrees that the Highest Lawful Rate shall be the "indicated (weekly) rate ceiling" as defined in said Article, provided that such Lender may also rely, to the extent permitted by applicable laws, on alternative maximum rates of interest under Applicable Lawother laws applicable to such Lender, (i) characterize any non-principal payment as an expense, fee if greater. Chapter 346 of the Texas Finance Code shall not apply to this Agreement or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)Notes.
Appears in 1 contract
Maximum Interest. Regardless It is expressly stipulated and agreed to be the intent of Borrower and Bank at all times to comply strictly with the applicable Texas law governing the maximum rate or amount of interest payable on the indebtedness evidenced by any provision contained in this Agreement Note or any Loan Document, and the Related Indebtedness (or applicable United States federal law to the extent that it permits Bank to contract for, charge, take, reserve or receive a greater amount of interest than under Texas law). If the applicable law is ever judicially interpreted so as to render usurious any amount (a) contracted for, charged, taken, reserved or received pursuant to any Note, any of the other Loan Documents or any other communication or writing by or between Borrower and Bank related to the transaction or transactions that are the subject matter of the Loan Documents, in no event shall the aggregate of all amounts that are (b) contracted for, charged charged, taken, reserved or collected received by reason of Bank’s exercise of the option to accelerate the maturity of any Note and/or any and all indebtedness paid or payable by Borrower to Bank pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document other than any Note (such other indebtedness being referred to in this Section as the “Related Indebtedness”), or the (c) Borrower will have paid or Bank will have received by reason of any voluntary prepayment by Borrower of any Note, then it is Borrower’s and Bank’s express intent that all amounts charged in excess of the Obligations or Maximum Rate shall be automatically canceled, ab initio, and all amounts in excess of the occurrence Maximum Rate theretofore collected by Bank shall be credited on the principal balance of any contingency whatsoeverNote and (or, if any Note has been or would thereby be paid in full, refunded to Borrower), and the provisions of any Note and the other Loan Documents shall entitle immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of any new document, so as to comply with the applicable law, but so as to permit the recovery of the fullest amount otherwise called for hereunder and thereunder; provided, however, if any Note has been paid in full before the end of the stated term of any such Note, then Borrower and Bank to charge agree that Bank shall, with reasonable promptness after Bank discovers or receive, or to require is advised by Borrower to pay, that interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") was received in an amount in excess of the Maximum Rate, and all provisions hereof or in either refund such excess interest to Borrower and/or credit such excess interest against such Note and/or any Loan Document which may purport to require Related Indebtedness then owing by Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect Bank. Borrower hereby agrees that as a condition precedent to the extent only any claim seeking usury penalties against Bank, Borrower will provide written notice to Bank, advising Bank in reasonable detail of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident nature and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestviolation, and no Bank shall have sixty (60) days after receipt of such notice in which to correct such usury violation, if any, by either refunding such excess interest will be collected to Borrower or crediting such excess interest against the Note to which the alleged violation relates and/or the Related Indebtedness then owing by Borrower to Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been sums contracted for, charged charged, taken, reserved or received by BankBank for the use, all interest at forbearance or detention of any time contracted for, charged or received from Borrower in connection with this Agreement debt evidenced by any Note and/or the Related Indebtedness shall, to the extent permitted by Applicable Lawapplicable law, be amortizedamortized or spread, proratedusing the actuarial method, allocated and spread in equal parts throughout the full stated term of such Note and/or the ObligationsRelated Indebtedness (including any and all renewal and extension periods) until payment in full so that the rate or amount of interest on account of any Note and/or the Related Indebtedness does not exceed the Maximum Rate from time to time in effect and applicable to such Note and/or the Related Indebtedness for so long as debt is outstanding. Borrower In no event shall the provisions of Chapter 346 of the Texas Finance Code (which regulates certain revolving credit loan accounts and Bank shall, revolving triparty accounts) apply to any Note and/or any of the Related Indebtedness. Notwithstanding anything to the maximum extent permitted under Applicable Lawcontrary contained herein or in any of the other Loan Documents, (i) characterize it is not the intention of Bank to accelerate the maturity of any non-principal payment as an expense, fee interest that has not accrued at the time of such acceleration or premium rather than as Interest and (ii) exclude voluntary prepayments and to collect unearned interest at the effects thereof. The provisions time of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)such acceleration.
Appears in 1 contract
Maximum Interest. Regardless The provisions of this Agreement and of all other Loan Documents between Borrower and Lender, whether now existing or hereafter arising and whether written or oral, are hereby expressly limited so that in no contingency or event whatsoever, whether by reason of demand or acceleration of the maturity of the Note or otherwise, shall the amount paid, or agreed to be paid ("Interest"), to Lender for the use, forbearance or retention of the money loaned under the Note exceed the maximum amount permissible under applicable law. If, from any circumstance whatsoever, performance or fulfillment of any provision contained in this Agreement hereof or of any agreement between Borrower and Lender shall, at the time performance or fulfillment of the Loan Documents, in no event such provision shall the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed interest under Applicable Lawbe due, exceed the Maximum Rate. No provision limit for Interest prescribed by law or otherwise transcend the limit of this Agreement validity prescribed by applicable law, then, ipso facto, the obligation to be performed or in fulfilled shall be reduced to such limit, and if, from any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency circumstance whatsoever, Lender shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts ever receive anything of value deemed interest Interest by Applicable Law (such amounts being referred to herein collectively as "Interest") applicable law in excess of the Maximum Ratemaximum lawful amount, and all provisions hereof or in an amount equal to any Loan Document which may purport to require Borrower to pay excessive Interest exceeding the Maximum Rate shall be without binding force or effect applied to the extent only reduction of the excess principal balance owing under the Note in the inverse order of Interest over such Maximum Rate. Any Interest charged its maturity (whether or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Banknot then due) or, at the option of BankLender, either be applied to reduce the principal amount of the Obligations or returned paid over to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Banknot to the payment of Interest. All monies Interest (including any amounts or payments deemed to be Interest) paid or agreed to be paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by Bank, all interest at any time contracted for, charged or received from Borrower in connection with this Agreement Lender shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term period until payment in full of the Obligationsprincipal balance of the Note so that the Interest thereon for such full period will not exceed the maximum amount permitted by applicable law. This Section will control all agreements between Borrower and Bank shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)Lender.
Appears in 1 contract
Maximum Interest. Regardless It is the intention of the parties hereto to conform strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the obligations of the Borrower to each Lender and the Issuer under this Agreement shall be subject to the limitation that payments of interest shall not be required to the extent that receipt thereof would be contrary to provisions of law applicable to such Lender or the Issuer limiting rates of interest which may be charged or collected by such Lender or the Issuer. Accordingly, if the transactions contemplated hereby would be usurious under applicable law (including the Federal and state laws of the United States of America, or of any provision contained other jurisdiction whose laws may be mandatorily applicable) with respect to a Lender or the Issuer then, in that event, notwithstanding anything to the contrary in this Agreement or any Agreement, it is agreed as follows:
(a) the provisions of the Loan Documents, in no event this Section 4.11 shall govern and control;
(b) the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed consideration which constitutes interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants applicable law that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been is contracted for, charged or received by Bankunder this Agreement, all interest at or under any time contracted for, charged of the other aforesaid agreements or received from Borrower otherwise in connection with this Agreement by such Lender or the Issuer shall under no circumstances exceed the maximum amount of interest allowed by applicable law (such maximum lawful interest rate, if any, with respect to such Lender or the Issuer herein called the "Highest Lawful Rate"), and any excess shall be credited to the Borrower by such Lender or the Issuer (or, if such consideration shall have been paid in full, such excess promptly refunded to the Borrower);
(c) all sums paid, or agreed to be paid, to such Lender or the Issuer for the use, forbearance and detention of the indebtedness of the Borrower to such Lender or the Issuer hereunder shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of such indebtedness until payment in full so that the Obligations. Borrower actual rate of interest is uniform throughout the full term thereof; and
(d) if at any time the interest provided pursuant to Section 3.2 together with any other fees payable pursuant to this Agreement and Bank shalldeemed interest under applicable law, exceeds that amount which would have accrued at the Highest Lawful Rate, the amount of interest and any such fees to accrue to such Lender or the Issuer pursuant to this Agreement shall be limited, notwithstanding anything to the maximum extent permitted under Applicable Lawcontrary in this Agreement to that amount which would have accrued at the Highest Lawful Rate, (i) characterize but any non-principal payment subsequent reductions, as an expenseapplicable, fee shall not reduce the interest to accrue to such Lender or premium rather than as Interest the Issuer pursuant to this Agreement below the Highest Lawful Rate until the total amount of interest accrued pursuant to this Agreement and (ii) exclude voluntary prepayments and such fees deemed to be interest equals the effects thereof. The provisions amount of interest which would have accrued to such Lender or the Issuer if a varying rate per annum equal to the interest provided pursuant to Section 3.2 had at all times been in effect, plus the amount of fees which would have been received but for the effect of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)4.11.
Appears in 1 contract
Maximum Interest. Regardless It is the intention of the parties hereto to conform strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the obligations of the Borrower to each Lender under this Agreement shall be subject to the limitation that payments of interest shall not be required to the extent that receipt thereof would be contrary to provisions of law applicable to such Lender limiting rates of interest which may be charged or collected by such Lender. Accordingly, if the transactions contemplated hereby would be usurious under applicable law (including the Federal and state laws of the United States of America, or of any provision contained other jurisdiction whose laws may be mandatorily applicable) with respect to a Lender then, in that event, notwithstanding anything to the contrary in this Agreement or any Agreement, it is agreed as follows:
(a) the provisions of the Loan Documents, in no event this Section 4.11 shall govern and control;
(b) the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed consideration which constitutes interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants applicable law that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been is contracted for, charged or received by Bankunder this Agreement, all interest at or under any time contracted for, charged of the other aforesaid agreements or received from Borrower otherwise in connection with this Agreement by such Lender shall under no circumstances exceed the maximum amount of interest allowed by applicable law (such maximum lawful interest rate, if any, with respect to such Lender herein called the “Highest Lawful Rate”), and any excess shall be credited to the Borrower by such Lender (or, if such consideration shall have been paid in full, such excess promptly refunded to the Borrower);
(c) all sums paid, or agreed to be paid, to such Lender for the use, forbearance and detention of the indebtedness of the Borrower to such Lender hereunder shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of such indebtedness until payment in full so that the Obligations. Borrower actual rate of interest is uniform throughout the full term thereof; and
(d) if at any time the interest provided pursuant to Section 3.2 together with any other fees payable pursuant to this Agreement and Bank shalldeemed interest under applicable law, exceeds that amount which would have accrued at the Highest Lawful Rate, the amount of interest and any such fees to accrue to such Lender pursuant to this Agreement shall be limited, notwithstanding anything to the maximum extent permitted under Applicable Lawcontrary in this Agreement to that amount which would have accrued at the Highest Lawful Rate, (i) characterize but any non-principal payment subsequent reductions, as an expenseapplicable, fee or premium rather than as Interest shall not reduce the interest to accrue to such Lender pursuant to this Agreement below the Highest Lawful Rate until the total amount of interest accrued pursuant to this Agreement and (ii) exclude voluntary prepayments and such fees deemed to be interest equals the effects thereof. The provisions amount of interest which would have accrued to such Lender if a varying rate per annum equal to the interest provided pursuant to Section 3.2 had at all times been in effect, plus the amount of fees which would have been received but for the effect of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)4.11.
Appears in 1 contract
Maximum Interest. Regardless of any provision contained in this ------------------ Agreement or any of the other Loan Documents, in no contingency or event whatsoever shall the aggregate of all amounts that are contracted for, charged or collected received by Lender pursuant to the terms of this Agreement, the Note Agreement or any of the other Loan Documents, Documents and that are deemed interest under Applicable Law, Laws exceed the Maximum Ratehighest rate permissible under any Applicable Laws. No provision of agreements, conditions, provisions or stipulations contained in this Agreement or in any of the other Loan Documents or the exercise by Bank Lender of the right to accelerate the payment or the maturity of all or any portion of the Obligations, or the exercise of any right hereunder or under option whatsoever contained in any of the Loan Document Documents, or the prepayment by Borrower Borrowers of any of the Obligations Obligations, or the occurrence of any contingency whatsoever, shall entitle Bank Lender to charge or receive, or to require Borrower to payreceive in any event, interest or any amounts charges, amounts, premiums or fees deemed interest by Applicable Law Laws (such amounts being interest, charges, amounts, premiums and fees referred to herein collectively as "Interest") in excess of the Maximum Rate and in no event shall Borrowers be obligated to pay Interest exceeding such Maximum Rate, and all provisions hereof agreements, conditions or stipulations, if any, which may in any Loan Document which may purport event or contingency whatsoever operate to require Borrower bind, obligate or compel Borrowers to pay Interest exceeding the Maximum Rate shall be without binding force or effect effect, at law or in equity, to the extent only of the excess of Interest over such Maximum Rate. Any If any Interest is charged or received in excess of the Maximum Rate ("Excess"), each Borrower acknowledges and stipulates that any such charge or receipt shall be conclusively presumed to be the result of an accident and bona fide error, and shallsuch Excess, to the extent received by Bankreceived, at the option of Bank, either shall be applied first to reduce the principal amount Obligations and the balance, if any, returned to Borrowers, it being the intent of the Obligations parties hereto not to enter into a usurious or returned to Borrowerotherwise illegal relationship. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestany interest that has not otherwise accrued on the date of such acceleration, and no Lender does not intend to collect any unearned interest in the event of any such acceleration. Each Borrower recognizes that, with fluctuations in the rates of interest will be collected by Bankset forth in Section 2.1.1 of this Agreement and the Maximum Rate, such an unintentional result could inadvertently occur. All monies paid to Bank Lender hereunder or under any of the other Loan Documents Documents, whether at maturity or by prepayment, shall be subject to any rebate of unearned interest as and to the extent required by Applicable LawLaws. By the execution of this Agreement, each Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower Borrowers of such Excess, and (ii) Borrower Borrowers shall not seek or pursue any other remedy, legal or equitable, against BankLender, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by BankLender, all interest at any time contracted for, charged or received from Borrower Borrowers in connection with this Agreement any of the Loan Documents shall, to the extent permitted by Applicable LawLaws, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Each Borrower and Bank Lender shall, to the maximum extent permitted under Applicable LawLaws, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each every Loan Document (whether or not any provision of this Section is referred to therein). All such Loan Documents and communications relating to any Interest owed by Borrowers and all figures set forth therein shall, for the sole purpose of computing the extent of Obligations, be automatically recomputed by Borrowers, and by any court considering the same, to give effect to the adjustments or credits required by this Section.
Appears in 1 contract
Sources: Loan and Security Agreement (Litchfield Financial Corp /Ma)
Maximum Interest. Regardless of any provision contained in this Agreement or any of the Loan Documentsother agreement or document executed in connection herewith, in no contingency or event whatsoever shall the aggregate of all amounts that are contracted for, charged or collected received by Capital pursuant to the terms of this AgreementAgreement or any other Loan Documents and that are deemed interest under applicable law exceed the highest rate permissible under any applicable law. No agreements, conditions, provisions or stipulations contained in this Agreement or any of the Note other Loan Documents or the exercise by Capital of the right to accelerate the payment or the maturity of all or any portion of the Obligations, or the exercise of any option whatsoever contained in any of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations Obligations, or the occurrence of any contingency whatsoever, shall entitle Bank Capital to charge or receive, or to require Borrower to payreceive in any event, interest or any charges, amounts premiums or fees deemed interest by Applicable Law applicable law (such amounts being interest, charges, amounts, premiums and fees referred to herein collectively as "“Interest"”) in excess of the Maximum Ratemaximum rate allowable under applicable law and in no event shall Borrower be obligated to pay Interest exceeding such maximum rate, and all provisions hereof agreements, conditions or stipulations, if any, which may in any Loan Document which may purport event or contingency whatsoever operate to require bind, obligate or compel Borrower to pay Interest exceeding the Maximum Rate maximum rate allowable under applicable law shall be without binding force or effect effect, at law or in equity, to the extent only of the excess of Interest over such Maximum Ratemaximum rate. Any If any Interest is charged or received in excess of the Maximum Rate maximum rate allowable under applicable law ("“Excess"”), Borrower acknowledges and stipulates that any such charge or receipt shall be conclusively presumed to be the result of an accident and bona fide error, and shallsuch Excess, to the extent received by Bankreceived, at the option of Bank, either shall be applied first to reduce the principal amount of Obligations and the Obligations or balance, if any, returned to Borrower, it being the intent of the parties hereto not to enter into a usurious or otherwise illegal relationship. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestany interest that has not otherwise accrued on the date of such acceleration, and no Capital does not intend to collect any unearned interest in the event of any such acceleration. Borrower recognizes that, with fluctuations in the rates of interest will be collected by Bankset forth in Section 2 of this Agreement and the maximum rate of interest allowable under applicable law, such an unintentional result could inadvertently occur. All monies paid to Bank Capital hereunder or under any of the other Loan Documents Documents, whether at maturity or by prepayment, shall be subject to any rebate of unearned interest as and to the extent required by Applicable Lawapplicable law. By the execution of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against BankCapital, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Ratemaximum rate allowable under applicable law. For the purpose of determining whether or not any Excess has been contracted for, charged or received by BankCapital, all interest at any time contracted for, charged or received from Borrower in connection with this Agreement and any other agreement or document executed in connection herewith, any of the Loan Documents shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank Capital shall, to the maximum extent permitted under Applicable Lawapplicable law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each every Loan Document (whether or not any provision of this Section is referred to therein). All such Loan Documents and communications relating to any Interest owed by Borrower and all figures set forth therein shall, for the sole purpose of computing the extent of Obligations, be automatically recommitted by Borrower, and by any court considering the same, to give effect to the adjustments or credits required by this Section.
Appears in 1 contract
Sources: Loan and Security Agreement (First Choice Healthcare Solutions, Inc.)
Maximum Interest. Regardless It is the intention of the parties hereto to conform strictly to applicable usury laws, and, anything herein to the contrary notwithstanding, the Obligations of the Borrower to each Lender under this Agreement shall be subject to the limitation that payments of interest shall not be required to the extent that receipt thereof would be contrary to provisions of law applicable to such Lender limiting rates of interest that may be charged or collected by such Lender. Accordingly, if the transactions contemplated hereby would be usurious under Governmental Requirements (including the Federal and state laws of the United States of America, or of any provision contained other jurisdiction whose laws may be mandatorily applicable) with respect to a Lender, then, in that event, notwithstanding anything to the contrary in this Agreement or any Agreement, it is agreed as follows: (a) the provisions of the Loan Documents, in no event this Section 12.12 shall govern and control; (b) the aggregate of all amounts consideration that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed constitutes interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants Governmental Requirements that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been is contracted for, charged or received by Bankunder this Agreement, all interest at or under any time contracted for, charged other Loan Document or received from Borrower otherwise in connection with this Agreement by such Lender shall under no circumstances exceed the Highest Lawful Rate, and any excess shall be credited to the Borrower by such Lender (or, if such consideration shall have been paid in full, such excess promptly refunded to the Borrower); (c) all sums paid, or agreed to be paid, to such Lender for the use, forbearance and detention of the indebtedness of the Borrower to such Lender hereunder shall, to the extent permitted by Applicable LawGovernmental Requirements, be amortized, prorated, allocated 715347206 14464587 and spread in equal parts throughout the full term of such indebtedness until payment in full so that the Obligations. Borrower actual rate of interest is uniform throughout the full term thereof; and Bank shall(d) if at any time the interest provided pursuant to Section 3.02, together with any other fees and expenses payable pursuant to this Agreement and the other Loan Documents and deemed interest under Governmental Requirements, exceeds that amount that would have accrued at the Highest Lawful Rate, then the amount of interest and any such fees to accrue to such Lender pursuant to this Agreement shall be limited, notwithstanding anything to the contrary in this Agreement, to that amount that would have accrued at the maximum extent permitted under Applicable LawHighest Lawful Rate, (i) characterize but any non-principal payment subsequent reductions, as an expenseapplicable, fee or premium rather than as Interest shall not reduce the interest to accrue to such Lender pursuant to this Agreement below the Highest Lawful Rate until the total amount of interest accrued pursuant to this Agreement and (ii) exclude voluntary prepayments and such fees deemed to be interest equals the effects thereof. The provisions amount of interest that would have accrued to such Lender if a varying rate per annum equal to the interest provided pursuant to Section 3.02 had at all times been in effect, plus the amount of fees that would have been received but for the effect of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)12.12.
Appears in 1 contract
Maximum Interest. Regardless of any provision contained in this Agreement or any of the Loan Documents, in no contingency or event whatsoever shall the aggregate of all amounts that are contracted for, charged or collected received by Agent and Lenders pursuant to the terms of this Agreement, the Note Agreement or any of the other Loan Documents, Documents and that are deemed interest under Applicable Law, Law exceed the Maximum Ratehighest rate permissible under any Applicable Law. No provision of agreements, conditions, provisions or stipulations contained in this Agreement or in any of the other Loan Documents or the exercise by Bank Agent of the right to accelerate the payment or the maturity of all or any portion of the Obligations, or the exercise of any right hereunder or under option whatsoever contained in any of the Loan Document Documents, or the prepayment by Borrower any or all Borrowers of any of the Obligations Obligations, or the occurrence of any contingency whatsoever, shall entitle Bank Agent or any Lender to charge or receive, or to require Borrower to payreceive in any event, interest or any amounts charges, amounts, premiums or fees deemed interest by Applicable Law (such amounts being interest, charges, amounts, premiums and fees referred to herein collectively as "Interest") in excess of the Maximum Rate and in no event shall Borrowers be obligated to pay Interest exceeding such Maximum Rate, and all provisions hereof agreements, conditions or stipulations, if any, which may in any Loan Document which may purport event or contingency whatsoever operate to require Borrower bind, obligate or compel Borrowers to pay Interest exceeding the Maximum Rate shall be without binding force or effect effect, at law or in equity, to the extent only of the excess of Interest over such Maximum Rate. Any If any Interest is charged or received in excess of the Maximum Rate ("Excess"), each Borrower acknowledges and stipulates that any such charge or receipt shall be conclusively presumed to be the result of an accident and bona fide error, and shallsuch Excess, to the extent received by Bankreceived, at the option of Bank, either shall be applied first to reduce the principal amount of the Obligations or and the balance, if any, returned to BorrowerBorrowers, it being the intent of the parties hereto not to enter into a usurious or otherwise illegal relationship. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestany Interest that has not otherwise accrued on the date of such acceleration, and no Agent and Lenders do not intend to collect any unearned Interest in the event of any such acceleration. Each Borrower recognizes that, with fluctuations in the rates of interest will be collected by Bankset forth in Section 3.1.1 of this Agreement, and the Maximum Rate, such an unintentional result could inadvertently occur. All monies paid to Bank Agent or any Lender hereunder or under any of the other Loan Documents Documents, whether at maturity or by prepayment, shall be subject to any rebate of unearned interest Interest as and to the extent required by Applicable Law. By the execution of this Agreement, each Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by such Borrower of such Excess, and (ii) no Borrower shall not seek or pursue any other remedy, legal or equitable, against BankAgent or any Lender, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by BankAgent or any Lender, all interest Interest at any time contracted for, charged or received from Borrower any or all Borrowers in connection with this Agreement any of the Loan Documents shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower Borrowers, Agent and Bank Lenders shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section 3.10 shall be deemed to be incorporated into the Note and each every Loan Document (whether or not any provision of this Section is referred to therein). All such Loan Documents and communications relating to any Interest owed by any or all Borrowers and all figures set forth therein shall, for the sole purpose of computing the extent of Obligations, be automatically recomputed by Borrowers, and by any court considering the same, to give effect to the adjustments or credits required by this Section 3.10.
Appears in 1 contract
Sources: Loan and Security Agreement (Tropical Sportswear Co Inc)
Maximum Interest. Regardless of any provision contained in this Agreement or any of the Loan Documents, in no contingency or event whatsoever shall the aggregate of all amounts that are contracted for, charged or collected received by Agent and Lenders pursuant to the terms of this Agreement, the Note Agreement or any of the other Loan Documents, Documents and that are deemed interest under Applicable Law, Law exceed the Maximum Ratehighest rate permissible under any Applicable Law. No provision of agreements, conditions, provisions or stipulations contained in this Agreement or in any of the other Loan Documents or the exercise by Bank Agent of the right to accelerate the payment or the maturity of all or any portion of the Obligations, or the exercise of any right hereunder or under option whatsoever contained in any of the Loan Document Documents, or the prepayment by Borrower Borrowers of any of the Obligations Obligations, or the occurrence of any contingency whatsoever, shall entitle Bank Agent or any Lender to charge or receive, or to require Borrower to payreceive in any event, interest or any amounts charges, amounts, premiums or fees deemed interest by Applicable Law (such amounts being interest, charges, amounts, premiums and fees referred to herein collectively as "Interest") in excess of the Maximum Rate and in no event shall Borrowers be obligated to pay Interest exceeding such Maximum Rate, ; and all provisions hereof agreements, conditions or stipulations, if any, which may in any Loan Document which may purport event or contingency whatsoever operate to require Borrower bind, obligate or compel Borrowers to pay Interest exceeding the Maximum Rate shall be without binding force or effect effect, at law or in equity, to the extent only of the excess of Interest over such Maximum Rate. Any If any Interest is charged or received in excess of the Maximum Rate ("Excess"), each Borrower acknowledges and stipulates that any such charge or receipt shall be conclusively presumed to be the result of an accident and bona fide error, and shallsuch Excess, to the extent received by Bankreceived, at the option of Bank, either shall be applied first to reduce the principal amount Obligations and the balance, if any, returned to Borrowers, it being the intent of the Obligations parties hereto not to enter into a usurious or returned to Borrowerotherwise illegal relationship. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestany Interest that has not otherwise accrued on the date of such acceleration, and no Agent and Lenders do not intend to collect any unearned Interest in the event of any such acceleration. Each Borrower recognizes that, with fluctuations in the rates of interest will be collected by Bankset forth in Section 2.1.1 of this Agreement, and the Maximum Rate, such an unintentional result could inadvertently occur. All monies paid to Bank Agent or any Lender hereunder or under any of the other Loan Documents Documents, whether at maturity or by prepayment, shall be subject to any rebate of unearned interest Interest as and to the extent required by Applicable Law. By the execution of this Agreement, each Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by such Borrower of such Excess, and (ii) such Borrower shall not seek or pursue any other remedy, legal or equitable, against BankAgent or any Lender, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by BankAgent or any Lender, all interest Interest at any time contracted for, charged or received from Borrower Borrowers in connection with this Agreement any of the Loan Documents shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower Borrowers, Agent and Bank Lenders shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section 2.10 shall be deemed to be incorporated into the Note and each every Loan Document (whether or not any provision of this Section is referred to therein). All such Loan Documents and communications relating to any Interest owed by Borrowers and all figures set forth therein shall, for the sole purpose of computing the extent of Obligations, be automatically recomputed by Borrowers, and by any court considering the same, to give effect to the adjustments or credits required by this Section 2.10.
Appears in 1 contract
Sources: Loan and Security Agreement (Tropical Sportswear International Corp)
Maximum Interest. Regardless It is the intention of the parties hereto to conform strictly to applicable usury laws, and, anything herein to the contrary notwithstanding, the Obligations of the Borrower to each Lender under this Agreement shall be subject to the limitation that payments of interest shall not be required to the extent that receipt thereof would be contrary to provisions of law applicable to such Lender limiting rates of interest that may be charged or collected by such Lender. Accordingly, if the transactions contemplated hereby would be usurious under Governmental Requirements (including the Federal and state laws of the United States of America, or of any provision contained other jurisdiction whose laws may be mandatorily applicable) with respect to a Lender, then, in that event, notwithstanding anything to the contrary in this Agreement or any Agreement, it is agreed as follows: (a) the provisions of the Loan Documents, in no event this Section 12.12 shall govern and control; (b) the aggregate of all amounts consideration that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed constitutes interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants Governmental Requirements that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been is contracted for, charged or received by Bankunder this Agreement, all interest at or under any time contracted for, charged other Loan Document or received from Borrower otherwise in connection with this Agreement by such Lender shall under no circumstances exceed the Highest Lawful Rate, and any excess shall be credited to the Borrower by such Lender (or, if such consideration shall have been paid in full, such excess promptly refunded to the Borrower); (c) all sums paid, or agreed to be paid, to such Lender for the use, forbearance and detention of the indebtedness of the Borrower to such Lender hereunder shall, to the extent permitted by Applicable LawGovernmental Requirements, be amortized, prorated, allocated and spread in equal parts throughout the full term of such indebtedness until payment in full so that the Obligations. Borrower actual rate of interest is uniform throughout the full term thereof; and Bank shall(d) if at any time the interest provided pursuant to Section 3.02, together with any other fees and expenses payable pursuant to this Agreement and the other Loan Documents and deemed interest under Governmental Requirements, exceeds that amount that would have accrued at the Highest Lawful Rate, then the amount of interest and any such fees to accrue to such Lender pursuant to this Agreement shall be limited, notwithstanding anything to 715347206 14464587 the contrary in this Agreement, to that amount that would have accrued at the maximum extent permitted under Applicable LawHighest Lawful Rate, (i) characterize but any non-principal payment subsequent reductions, as an expenseapplicable, fee or premium rather than as Interest shall not reduce the interest to accrue to such Lender pursuant to this Agreement below the Highest Lawful Rate until the total amount of interest accrued pursuant to this Agreement and (ii) exclude voluntary prepayments and such fees deemed to be interest equals the effects thereof. The provisions amount of interest that would have accrued to such Lender if a varying rate per annum equal to the interest provided pursuant to Section 3.02 had at all times been in effect, plus the amount of fees that would have been received but for the effect of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)12.12.
Appears in 1 contract
Maximum Interest. Regardless It is expressly stipulated and agreed to be the intent of Borrower and Bank at all times to comply strictly with the applicable Texas law governing the maximum rate or amount of interest payable on the indebtedness evidenced by any provision contained in this Agreement Note or any Loan Document, and the Related Indebtedness (as hereinafter defined) (or applicable United States federal law to the extent that it permits Bank to contract for, charge, take, reserve or receive a greater amount of interest than under Texas law). If the applicable law is ever judicially interpreted so as to render usurious any amount (a) contracted for, charged, taken, reserved or received pursuant to any Note, any of the other Loan Documents or any other communication or writing by or between Borrower and Bank related to the transaction or transactions that are the subject matter of the Loan Documents, in no event shall the aggregate of all amounts that are (b) contracted for, charged charged, taken, reserved or collected received by reason of Bank's exercise of the option to accelerate the maturity of any Note and/or any and all indebtedness paid or payable by Borrower to Bank pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document other than any Note (such other indebtedness being referred to in this Section as the "Related Indebtedness"), or the (c) Borrower will have paid or Bank will have received by reason of any prepayment by Borrower of any Note or Related Indebtedness, then it is Borrower's and Bank's express intent that all amounts charged in excess of the Obligations or Maximum Rate shall be automatically canceled, ab initio, and all amounts in excess of the occurrence Maximum Rate theretofore collected by Bank shall be credited on the principal balance of any contingency whatsoeverNote and/or the Related Indebtedness (or, if any Note and the Related Indebtedness have been or would thereby be paid in full, refunded to Borrower), and the provisions of any Note and the other Loan Documents shall entitle immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of any new document, so as to comply with the applicable law, but so as to permit the recovery of the fullest amount otherwise called for hereunder and thereunder; provided, however, if any Note has been paid in full before the end of the stated term of any such Note, then Borrower and Bank to charge agree that Bank shall, with reasonable promptness after Bank discovers or receive, or to require is advised by Borrower to pay, that interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") was received in an amount in excess of the Maximum Rate, and all provisions hereof or in either refund such excess interest to Borrower and/or credit such excess interest against such Note and/or any Loan Document which may purport to require Related Indebtedness then owing by Borrower to pay Interest exceeding the Maximum Rate Bank. Borrower hereby agrees that as a condition precedent to any claim or counterclaim (in which event such proceeding shall be without binding force or effect abated for such time period) seeking usury penalties against Bank, Borrower will provide written notice to the extent only Bank, advising Bank in reasonable detail of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident nature and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestviolation, and no Bank shall have sixty (60) days after receipt of such notice in which to correct such usury violation, if any, by either refunding such excess interest will be collected to Borrower or crediting such excess interest against the Note to which the alleged violation relates and/or the Related Indebtedness then owing by Borrower to Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been sums contracted for, charged charged, taken, reserved or received by BankBank for the use, all interest at forbearance or detention of any time contracted for, charged or received from Borrower in connection with this Agreement debt evidenced by any Note and/or the Related Indebtedness shall, to the extent permitted by Applicable Lawapplicable law, be amortizedamortized or spread, proratedusing the actuarial method, allocated and spread in equal parts throughout the full stated term of such Note and/or the ObligationsRelated Indebtedness (including any and all renewal and extension periods) until payment in full so that the rate or amount of interest on account of any Note and/or the Related Indebtedness does not exceed the Maximum Rate from time to time in effect and applicable to such Note and/or the Related Indebtedness for so long as debt is outstanding. Borrower In no event shall the provisions of Chapter 346 of the Texas Finance Code (which regulates certain revolving credit loan accounts and Bank shall, revolving triparty accounts) apply to any Note and/or any of the Related Indebtedness. Notwithstanding anything to the maximum extent permitted under Applicable Lawcontrary contained herein or in any of the other Loan Documents, (i) characterize it is not the intention of Bank to accelerate the maturity of any non-principal payment as an expense, fee interest that has not accrued at the time of such acceleration or premium rather than as Interest and (ii) exclude voluntary prepayments and to collect unearned interest at the effects thereof. The provisions time of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)such acceleration.
Appears in 1 contract
Maximum Interest. Regardless It is the intention of the parties ---------------- hereto to conform strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the obligations of each Borrower to each Lender and the Issuer under this Agreement shall be subject to the limitation that payments of interest shall not be required to the extent that receipt thereof would be contrary to provisions of law applicable to such Lender or the Issuer limiting rates of interest which may be charged or collected by such Lender or the Issuer. Accordingly, if the transactions contemplated hereby would be usurious under applicable law (including the Federal and state laws of the United States of America, or of any provision contained other jurisdiction whose laws may be mandatorily applicable) with respect to a Lender or the Issuer then, in that event, notwithstanding anything to the contrary in this Agreement or any Agreement, it is agreed as follows:
(i) the provisions of the Loan Documents, in no event this Section 10.6 shall govern and control; (ii) the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed consideration which constitutes interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants applicable law that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been is contracted for, charged or received by Bankunder this Agreement, all interest at or under any time contracted for, charged of the other aforesaid agreements or received from Borrower otherwise in connection with this Agreement by such Lender or the Issuer shall under no circumstances exceed the maximum amount of interest allowed by applicable law (such maximum lawful interest rate, if any, with respect to such Lender or the Issuer herein called the "Highest Lawful Rate"), and any excess shall be credited to such Borrower by ------------------- such Lender or the Issuer (or, if such consideration shall have been paid in full, such excess promptly refunded to such Borrower); (iii) all sums paid, or agreed to be paid, to such Lender or the Issuer for the use, forbearance and detention of the indebtedness of such Borrower to such Lender or the Issuer hereunder shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of such indebtedness until payment in full so that the Obligations. Borrower actual rate of interest is uniform throughout the full term thereof; and Bank shall(iv) if at any time the interest provided pursuant to Article II together with any other fees payable pursuant to this Agreement and deemed interest under applicable law, exceeds that amount which would have accrued at the Highest Lawful Rate, the amount of interest and any such fees to accrue to such Lender or the Issuer pursuant to this Agreement shall be limited, notwithstanding anything to the maximum extent permitted under Applicable Lawcontrary in this Agreement to that amount which would have accrued at the Highest Lawful Rate, (i) characterize but any non-principal payment subsequent reductions, as an expenseapplicable, fee shall not reduce the interest to accrue to such Lender or premium rather than as Interest the Issuer pursuant to this Agreement below the Highest Lawful Rate until the total amount of interest accrued pursuant to this Agreement and (ii) exclude voluntary prepayments and such fees deemed to be interest equals the effects thereof. The provisions amount of interest which would have accrued to such Lender or the Issuer if a varying rate per annum equal to the interest provided pursuant to Article II had at all times been in effect, plus the amount of fees ---- which would have been received but for the effect of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)10.6.
Appears in 1 contract
Maximum Interest. Regardless It is the intention of any provision contained in the parties hereto to conform strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the Obligations of the Borrower and the other Obligors to each Lender and the other Secured Parties under this Agreement or any of and the Loan Documents, in no event shall the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the other Loan Documents shall be subject to any rebate the limitation that payments of unearned interest as and shall not be required to the extent required that receipt thereof would be contrary to provisions of law applicable to such Lender limiting rates of interest that may be charged or collected by such Lender or Secured Party, as applicable. Accordingly, if the transactions contemplated hereby would be usurious under Applicable Law. By Law (including the execution Federal and state laws of the United States of America, or of any other jurisdiction whose laws may be mandatorily applicable) with respect to a Lender, then, in that event, notwithstanding anything to the contrary in this Agreement, Borrower covenants that it is agreed as follows: (ia) the credit or return provisions of any Excess this Section 10.18 shall constitute govern and control; (b) the acceptance by Borrower aggregate of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been all consideration that constitutes interest under Applicable Law that is contracted for, charged or received by Bankunder this Agreement, all interest at or under any time contracted for, charged other Loan Document or received from Borrower otherwise in connection with this Agreement by such Lender or Secured Party, as applicable, shall under no circumstances exceed the maximum amount of interest allowed by Applicable Law (such maximum lawful interest rate, if any, with respect to such Lender or Secured Party, as applicable herein called the “Highest Lawful Rate”), and any excess shall be credited to the Borrower by such Lender or Secured Party, as applicable (or, if such consideration shall have been paid in full, such excess promptly refunded to the Borrower); (c) all sums paid, or agreed to be paid, to such Lender or Secured Party, as applicable for the use, forbearance and detention of the indebtedness of the Borrower to such Lender or Secured Party, as applicable hereunder shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of such indebtedness until payment in full so that the Obligations. Borrower actual rate of interest is uniform throughout the full term thereof; and Bank shall(d) if at any time the interest provided pursuant to Section 3.2, together with any other fees and expenses payable pursuant to this Agreement and the maximum extent permitted other Loan Documents and deemed interest under Applicable Law, (i) characterize exceeds that amount that would have accrued at the Highest Lawful Rate, then the amount of interest and any non-principal payment such fees to accrue to such Lender or Secured Party, as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments applicable pursuant to this Agreement and the effects thereof. The provisions other Loan Documents shall be limited, notwithstanding anything to the contrary in this Agreement, to that amount that would have accrued at the Highest Lawful Rate, but any subsequent reductions, as applicable, shall not reduce the interest to accrue to such Lender or Secured Party, as applicable pursuant to this Agreement below the Highest Lawful Rate until the total amount of interest accrued pursuant to this Agreement and the other Loan Documents and such fees deemed to be interest equals the amount of interest that would have accrued to such Lender or Secured Party, as applicable, if a varying rate per annum equal to the interest provided pursuant to Section 3.2 had at all times been in effect, plus the amount of fees that would have been received but for the effect of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)10.18.
Appears in 1 contract
Sources: First Lien Exit Credit Agreement (Energy XXI Gulf Coast, Inc.)
Maximum Interest. Regardless of any provision contained in this Agreement or any of the other Term Loan DocumentsDocument, in no contingency or event whatsoever shall the aggregate of all amounts that are contracted for, charged or collected received by Lender pursuant to the terms of this Agreement, the Note Agreement or any of the other Term Loan Documents, Document and that are deemed interest under Applicable Law, applicable law exceed the Maximum Ratehighest rate permissible under any applicable law (including resulting in an amount or at a rate that would result in the receipt by Lender of interest at a criminal rate, as the terms “interest” and “criminal rate” are defined under the Criminal Code (Canada)), which a court of competent jurisdiction shall, in a final determination, deem applicable hereto. No provision of this Agreement agreements, conditions, provisions or stipulations contained in any of the Term Loan Documents or the exercise by Bank Lender of the right to accelerate the payment or the maturity of all or any portion of the Obligations or the exercise of any right hereunder or under option whatsoever contained in any of the Term Loan Document Documents, or the prepayment by any Borrower of any of the Obligations Obligations, or the occurrence of any contingency whatsoever, shall entitle Bank Lender to charge or receive, or to require Borrower to payin any event, interest or any amounts charges, amounts, premiums or fees deemed interest by Applicable Law applicable law (such amounts being interest, charges, amounts, premiums and fees referred to herein collectively as "“Interest"”) in excess of the Maximum Ratemaximum rate allowable under applicable law and in no event shall any Obligor be obligated to pay Interest exceeding such maximum rate, and all provisions hereof agreements, conditions, or stipulations, if any, which may in any Loan Document which may purport event or contingency whatsoever operate to require Borrower bind, obligate or compel any Obligor to pay Interest exceeding the Maximum Rate maximum rate allowable under applicable law shall be without binding force or effect effect, at law or in equity, to the extent only of the excess of Interest over such Maximum Ratemaximum rate. Any If any Interest is charged or received in excess of the Maximum Rate maximum rate allowable under applicable law ("“Excess"”), each Borrower acknowledges and stipulates that any such charge or receipt shall be conclusively presumed to be the result of an accident and bona fide error, and shallsuch Excess, to the extent received by Bankreceived, at the option of Bank, either shall be applied first to reduce the principal amount Obligations and the balance, if any, returned to Borrowers, it being the intent of the Obligations parties hereto not to enter into a usurious or returned to Borrowerother illegal relationship. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestany interest that has not otherwise accrued on the date of such acceleration, and no such interest will be collected by Bank. All monies paid Lender does not intend to Bank hereunder or under collect any of the Loan Documents shall be subject to any rebate of unearned interest as and to in the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return event of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rateacceleration. For the purpose of determining whether or not any Excess has been contracted for, charged or received by BankLender, all interest Interest at any time contracted for, charged or received from Borrower Borrowers in connection with this Agreement any of the Term Loan Documents shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each every Term Loan Document (whether or not any provision of this Section is referred to therein).
Appears in 1 contract
Sources: Loan and Security Agreement (Lakeland Industries Inc)
Maximum Interest. Regardless It is the intention of the parties hereto to conform strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the obligations of the Borrower to each Lender under this Agreement shall be subject to the limitation that payments of interest shall not be required to the extent that receipt thereof would be contrary to provisions of law applicable to such Lender limiting rates of interest which may be charged or collected by such Lender. Accordingly, if the transactions contemplated hereby would be usurious under applicable law (including the Federal and state laws of the United States of America, or of any provision contained other jurisdiction whose laws may be mandatorily applicable) with respect to a Lender then, in that event, notwithstanding anything to the contrary in this Agreement or any Agreement, it is agreed as follows: (a) the provisions of the Loan Documents, in no event this Section 4.12 shall govern and control; (b) the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed consideration which constitutes interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants applicable law that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been is contracted for, charged or received by Bankunder this Agreement, all interest at or under any time contracted for, charged of the other aforesaid agreements or received from Borrower otherwise in connection with this Agreement by such Lender shall under no circumstances exceed the maximum amount of interest allowed by applicable law (such maximum lawful interest rate, if any, with respect to such Lender herein called the "Highest Lawful Rate"), and any excess shall be credited to the Borrower by such Lender (or, if such consideration shall have been paid in full, such excess refunded to the Borrower); (c) all sums paid, or agreed to be paid, to such Lender for the use, forbearance and detention of the Indebtedness of the Borrower to such Lender hereunder shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal such Indebtedness until payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein).in full
Appears in 1 contract
Maximum Interest. Regardless of any provision contained in this Agreement or any It is the intention of the Loan Documents, in no event shall the aggregate of all amounts that are contracted parties hereto to comply with applicable usury laws. The parties hereto do not intend to contract for, charged charge or collected pursuant to the terms receive any interest or other charge which is usurious, and by execution of this Agreement, the Note Borrower agrees that the Banks have no such intent. This Agreement, and all other agreements between the Borrower and the Banks which are now existing or any hereafter arising, whether written or oral, are hereby expressly limited so that in no event whatsoever, whether by reason of acceleration of maturity of the Loan DocumentsNotes, and that are deemed interest under Applicable Lawor otherwise, shall the amount paid, or agreed to be paid, to the Banks for the use, forbearance or detention of the money to be due hereunder or otherwise, or for the payment or performance of any covenant or obligation contained herein or in any other document evidencing, securing, or pertaining to the indebtedness evidenced by the Notes, exceed the Maximum Rate. No provision The term "Maximum Rate," as used herein, shall mean, on any day, the highest non-usurious rate of this Agreement or in interest (if any) permitted by applicable law on such day. If from any of the Loan Documents or the exercise by Bank circumstance whatsoever fulfillment of any right hereunder provisions hereof or under any Loan Document or the prepayment by Borrower of any other document, at the time performance of the Obligations or the occurrence of any contingency whatsoeversuch provisions shall be due, shall entitle Bank involve transcending the valid limits prescribed by law, then, ipso facto, the obligation to charge or receive, or be fulfilled shall be reduced to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof if from any such circumstance the Banks shall ever receive as interest or in any Loan Document otherwise an amount which may purport to require Borrower to pay Interest exceeding will exceed the Maximum Rate Rate, such amount which would be excessive interest shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the reduction of the principal amount owing under the Notes or on account of any other principal indebtedness of the Obligations Borrower to the Banks and not to the payment of interest, or returned if such excessive interest exceeds the unpaid balance of principal of the Notes and such other indebtedness, such excess shall be refunded to the Borrower. The right All sums paid and agreed to accelerate be paid to the maturity of any Banks for use, forbearance or detention of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any indebtedness of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by Bank, all interest at any time contracted for, charged or received from Borrower in connection with this Agreement shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated allocated, and spread in equal parts throughout the period until payment in full term on the Notes (or any renewals, extensions and rearrangements thereof) so that the actual rate of interest on account of the Obligations. Borrower indebtedness evidenced by the Notes is uniform throughout the terms thereof (and Bank shallall renewals, to extensions and rearrangements thereof) and does not exceed the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereofMaximum Rate. The terms and provisions of this Section paragraph shall be deemed to be incorporated into the Note control and each Loan Document (whether or not supersede any other provision of this Section is referred to therein)Agreement.
Appears in 1 contract
Maximum Interest. Regardless It is the intention of the parties hereto to conform strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the obligations of the Borrower to the Lenders under this Agreement, the Loan Documents and any other document or instrument executed in connection herewith or therewith, shall be subject to the limitation that payments of interest or of other amounts constituting interest under applicable law to a Lender shall not be required to the extent that receipt thereof would be in excess of the Highest Lawful Rate, or otherwise contrary to provisions of law applicable to such Lender limiting rates of interest which may be charged or collected by such Lender. Accordingly, if the transactions or the amount paid or otherwise agreed to be paid for the use, forbearance or detention of money under this Agreement, the Loan Documents and any other document or instrument executed in connection herewith or therewith would exceed the Highest Lawful Rate or otherwise be usurious under applicable law (including the federal and state laws of the United States of America, or of any provision contained other jurisdiction whose laws may be mandatorily applicable) with respect to any Lender then, in that event, notwithstanding anything to the contrary in this Agreement or any of the Loan DocumentsDocuments and any other document or instrument executed in connection herewith or therewith, it is agreed as follows as to such Lender:
(a) in no event respect to such Lender, the provisions of this Section 3.3.5 shall govern and control over any other provision in this Agreement, the Loan Documents and any other document or instrument executed in connection herewith or therewith and each provision set forth therein is hereby so limited;
(b) the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed consideration which constitutes interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants applicable law that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been is contracted for, charged or received by Bankunder this Agreement, all interest at or under any time contracted for, charged of the other aforesaid agreements or received from Borrower otherwise in connection with this Agreement by such Lender shall under no circumstances exceed the maximum amount of interest allowed by applicable law (such maximum lawful interest rate, if any, with respect to such Lender herein called the "Highest Lawful Rate"), and all amounts owed under this Agreement, the Loan Documents and any other document or instrument executed in connection herewith or therewith shall be held subject to reduction and (i) the amount of interest which would otherwise be payable to such Lender hereunder and under the Loan Documents and any other document or instrument executed in connection herewith or therewith, shall be automatically reduced to the amount allowed under applicable law and (ii) any unearned interest paid by the Borrower in excess of the Highest Lawful Rate shall be credited to the Borrower by such Lender (or, if such consideration shall have been paid in full, refunded to the Borrower);
(c) all sums paid, or agreed to be paid, to such Lender for the use, forbearance and detention of the indebtedness of the Borrower to such Lender hereunder shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of such indebtedness until payment in full so that the Obligations. Borrower actual rate of interest is uniform throughout the full term thereof;
(d) if at any time the interest provided pursuant to Sections 3.3.1 or 3.3.2, as the case may be, together with any other fees payable pursuant to or in connection with this Agreement and Bank shalldeemed interest under applicable law, with respect to any Lender exceeds that amount which would have accrued at the Highest Lawful Rate, the amount of interest and any such fees to accrue to such Lender pursuant to this Agreement shall be limited, notwithstanding anything to the maximum extent permitted under Applicable Lawcontrary in this Agreement to that amount which would have accrued at the Highest Lawful Rate for such Lender, but any subsequent reductions, as applicable, shall not reduce the interest to accrue pursuant to this Agreement below such Lender's Highest Lawful Rate until the total amount of interest payable to such Lender (iincluding all consideration which constitutes interest) characterize any non-principal payment as an expenseequals the amount of interest which would have been payable to such Lender (including all consideration which constitutes interest) assuming a varying rate per annum equal to the interest provided pursuant to Sections 3.3.1 and 3.3.2 at all times in effect, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and plus the effects thereof. The provisions amount of fees which would have been received but for the effect of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)3.3.
Appears in 1 contract
Sources: Credit Agreement (Pogo Producing Co)
Maximum Interest. Regardless of any provision contained in this Agreement or any of the Loan Documents, in no contingency or event whatsoever shall the aggregate of all amounts that are contracted for, charged or collected received by Agent or any Lender pursuant to the terms of this Agreement, the Note Agreement or any of the other Loan Documents, Documents and that are deemed interest under Applicable Law, Law exceed the highest rate permissible under any Applicable Law (the “Maximum Rate”). No provision of agreements, conditions, provisions or stipulations contained in this Agreement or in any of the other Loan Documents or the exercise by Bank Agent of the right to accelerate the payment or the maturity of all or any portion of the Obligations, or the exercise of any right hereunder or under option whatsoever contained in any of the Loan Document Documents, or the prepayment by Borrower any Obligor of any of the Obligations Obligations, or the occurrence of any contingency whatsoever, shall entitle Bank Agent or Lenders to charge or receive, or to require Borrower to payreceive in any event, interest or any amounts charges, amounts, premiums or fees deemed interest by Applicable Law (such amounts being interest, charges, amounts, premiums and fees referred to herein collectively as "“Interest"”) in excess of the Maximum Rate and in no event shall any Obligor be obligated to pay Interest exceeding such Maximum Rate, and all provisions hereof agreements, conditions or stipulations, if any, which may in any Loan Document which may purport event or contingency whatsoever operate to require Borrower bind, obligate or compel any Obligor to pay Interest exceeding the Maximum Rate shall be without binding force or effect effect, at law or in equity, to the extent only of the excess of Interest over such Maximum Rate. Any If any Interest is charged or received with respect to the Obligations in excess of the Maximum Rate ("“Excess"”), each Obligor stipulates that any such charge or receipt shall be conclusively presumed to be the result of an accident and bona fide error, and shallsuch Excess, to the extent received by Bankreceived, at the option of Bank, either shall be applied first to reduce the principal amount Obligations and the balance, if any, returned to the Obligors, it being the intent of the Obligations parties hereto not to enter into an usurious or returned to Borrowerotherwise illegal relationship. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by Bank, all interest at any time contracted for, charged or received from Borrower in connection with this Agreement shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein).does
Appears in 1 contract
Maximum Interest. Regardless Notwithstanding anything to the contrary contained elsewhere in this Agreement or in any Other Agreement, the parties hereto hereby agree that all agreements between them under this Agreement and the Other Agreements, whether now existing or hereafter arising and whether written or oral, are expressly limited so that in no contingency or event whatsoever shall the amount paid, or agreed to be paid, to the Agent or any Lender for the use, forbearance, or detention of the money loaned to the Borrower and evidenced hereby or obligation contained herein or therein, exceed the maximum non-usurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the Liabilities, under the laws of the State of New York (or the laws of any other jurisdiction whose laws may be mandatory applicable notwithstanding other provisions of this Agreement and the Other Agreements), or under applicable federal laws which may presently or hereafter be in effect and which allow a higher maximum non-usurious interest rate that under the laws of the State of New York (or such other jurisdiction), in any case after taking into account, to the extent permitted by applicable law, any and all relevant payments or charges under this Agreement and the Other Agreements executed in connection herewith, and any available exemptions, exceptions and exclusions (the “Highest Lawful Rate”). If due to any circumstance whatsoever, fulfillment of any provision contained in of this Agreement or any of the Loan DocumentsOther Agreements at the time performance of such provision shall be due shall exceed the Highest Lawful Rate, in no event then automatically, the obligation to be fulfilled shall the aggregate of all amounts that are contracted for, charged be modified or collected pursuant reduced to the terms of this Agreementextent necessary to limit such interest to the Highest Lawful Rate, the Note and if from any such circumstance Agent or any Lender should ever receive anything of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts value deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of applicable law which would exceed the Maximum Highest Lawful Rate, such principal amount then outstanding hereunder or on account of any other then outstanding Liabilities and all provisions hereof not to the payment of interest, or in any Loan Document which may purport to require Borrower to pay Interest exceeding if such excessive interest exceeds the Maximum Rate principal unpaid balance then outstanding hereunder and such other then outstanding Liabilities, such excess shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned refunded to Borrower. The right All sums paid or agreed to accelerate be paid to Agent or the maturity of any Lenders for the use, forbearance, or detention of the Obligations does not include the right to accelerate unaccrued interest, Liabilities and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any other Indebtedness of the Loan Documents shall be subject to any rebate of unearned interest as and Borrower to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by Bank, all interest at any time contracted for, charged or received from Borrower in connection with this Agreement Lenders shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of such Indebtedness, until payment in full thereof, so that the Obligations. Borrower and Bank shall, to actual rate of interest on account of all such Indebtedness does not exceed the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and Highest Lawful Rate throughout the effects thereofentire term of such Indebtedness. The terms and provisions of this Section paragraph shall be deemed to be incorporated into the Note and each Loan Document (whether or not any control every other provision of this Section is referred to therein)Agreement, the Other Agreements and all other agreements among the parties hereto.
Appears in 1 contract
Sources: Loan and Security Agreement (Impco Technologies Inc)
Maximum Interest. Regardless of any provision contained (A) Notwithstanding anything to the contrary in this Agreement or otherwise, (i) if at any time the amount of interest computed on the basis of an Applicable Annual Rate or a Default Rate would exceed the amount of such interest computed upon the basis of the Loan Documents, maximum rate of interest permitted by applicable state or federal law in no event shall effect from time to time hereafter (the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement"Maximum Legal Rate"), the Note or any of the Loan Documents, and that are deemed interest payable under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of shall be computed upon the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess basis of the Maximum Legal Rate, and all provisions hereof but any subsequent reduction in such Applicable Annual Rate or in any Loan Document which may purport to require Borrower to pay Interest exceeding Default Rate, as applicable, shall not reduce such interest thereafter payable hereunder below the Maximum Rate shall be without binding force or effect to amount computed on the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess basis of the Maximum Legal Rate ("Excess"), shall be conclusively presumed to be until the result aggregate amount of such interest accrued and payable under this Agreement equals the total amount of interest which would have accrued if such interest had been at all times computed solely on the basis of an accident and bona fide errorApplicable Annual Rate or Default Rate, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, applicable; and (ii) Borrower shall unless preempted by federal law, an Applicable Annual Rate or Default Rate, as applicable, from time to time in effect hereunder may not seek or pursue any other remedy, legal or equitable, against Bank, based exceed the "monthly ceiling" from time to time in whole or in part upon contracting for, charging or receiving any Interest in excess effect under Chapter 303 of the Maximum RateTexas Finance Code. For If the purpose applicable state or federal law is amended in the future to allow a greater rate of determining whether or not any Excess has been contracted for, interest to be charged or received by Bank, all interest at any time contracted for, charged or received from Borrower in connection with under this Agreement shallthan is presently allowed by applicable state or federal law, to then the extent permitted by Applicable Law, limitation of interest hereunder shall be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank shall, increased to the maximum extent permitted under Applicable Lawrate of interest allowed by applicable state or federal law as amended, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section which increase shall be deemed effective hereunder on the effective date of such amendment, and all interest charges owing to Agent and/or Lenders by reason thereof shall be incorporated into the Note and each Loan Document (whether or not any provision of this payable in accordance with Section is referred to therein)3.2.2 hereof.
Appears in 1 contract
Sources: Loan and Security Agreement (Industrial Data Systems Corp)
Maximum Interest. Regardless of any provision contained in this Agreement or any of the Loan other DIP Financing Documents, in no contingency or event whatsoever shall the aggregate of all amounts that are contracted for, charged or collected received by Lender pursuant to the terms of this Agreement, the Note Agreement or any of the Loan Documents, other DIP Financing Documents and that are deemed interest under Applicable Law, Law exceed the Maximum Ratehighest rate permissible under any Applicable Law. No provision of agreements, conditions, provisions or stipulations contained in this Agreement or in any of the Loan other DIP Financing Documents or the exercise by Bank Lender of the right to accelerate the payment or the maturity of all or any portion of the Obligations, or the exercise of any right hereunder or under option whatsoever contained in any Loan Document of the DIP Financing Documents, or the prepayment by Borrower of any of the Obligations Obligations, or the occurrence of any contingency whatsoever, shall entitle Bank Lender to charge or receive, or to require Borrower to payreceive in any event, interest or any amounts charges, amounts, premiums or fees deemed interest by Applicable Law (such amounts being interest, charges, amounts, premiums and fees referred to herein collectively as "“Interest"”) in excess of the Maximum Rate and in no event shall Borrower be obligated to pay Interest exceeding such Maximum Rate, and all provisions hereof agreements, conditions or stipulations, if any, which may in any Loan Document which may purport event or contingency whatsoever operate to require bind, obligate or compel Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect effect, at law or in equity, to the extent only of the excess of Interest over such Maximum Rate. Any If any Interest is charged or received in excess of the Maximum Rate ("“Excess"”), Borrower acknowledges and stipulates that any such charge or receipt shall be conclusively presumed to be the result of an accident and bona fide error, and shallsuch Excess, to the extent received by Bankreceived, at the option of Bank, either shall be applied first to reduce the principal amount of Obligations and the Obligations or balance, if any, returned to Borrower, it being the intent of the parties hereto not to enter into a usurious or otherwise illegal relationship. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestany interest that has not otherwise accrued on the date of such acceleration, and no Lender does not intend to collect any unearned interest in the event of any such acceleration. Borrower recognizes that, with fluctuations in the rates of interest will be collected by Bankset forth in Section 2.1.1 of this Agreement, and the Maximum Rate, such an unintentional result could inadvertently occur. All monies paid to Bank Lender hereunder or under any of the Loan Documents other DIP Financing Documents, whether at maturity or by prepayment, shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against BankLender, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by BankLender, all interest at any time contracted for, charged or received from Borrower in connection with this Agreement any of the DIP Financing Documents shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank Lender shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section 2.6 shall be deemed to be incorporated into the Note and each Loan every DIP Financing Document (whether or not any provision of this Section is referred to therein). All such DIP Financing Documents and communications relating to any Interest owed by Borrower, and all figures set forth therein shall, for the sole purpose of computing the extent of Obligations, be automatically recomputed by Borrower, and by any court considering the same, to give effect to the adjustments or credits required by this Section 2.6.
Appears in 1 contract
Maximum Interest. Regardless Notwithstanding the foregoing paragraphs and all other provisions of any provision contained in this Agreement or any and the Notes, none of the Loan Documents, in no event shall the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision provisions of this Agreement or in any the Notes shall ever be construed to create a contract to pay to the Lenders for the use, forbearance or detention of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to paymoney, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Ratemaximum amount of interest permitted to be charged by the Lenders to the Borrower under applicable state or federal law from time to time in effect, and all provisions hereof or in any Loan Document which may purport to require the Borrower shall never be required to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received interest in excess of such maximum amount. If, for any reason interest is paid hereon in excess of such maximum amount, then promptly upon any determination that such excess has been paid the Maximum Rate ("Excess")Lenders will, shall be conclusively presumed to be the result of an accident and bona fide errorat their option, and shall, either refund such excess to the extent received by Bank, at the option of Bank, either be applied Borrower or apply such excess to reduce the principal amount of owing under the Obligations or returned Notes."
7. Exhibit G to Borrowerthe Credit Agreement, BORROWING BASE CERTIFICATE, is hereby amended by deleting the words "except for ineligibility due to delinquencies which is addressed on an aggregated basis by an adjustment to the Borrowing Base" from footnote 1 thereto.
8. The right to accelerate Except as specifically modified hereby, the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, Credit Agreement is and no such interest will be collected by Bankremains unmodified and in full force and effect and is hereby ratified and confirmed. All monies paid to Bank hereunder or under any of references in the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By "Agreement" or the execution of this "Credit Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by Bank, all interest at any time contracted for, charged or received from Borrower in connection with this Agreement shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section " henceforth shall be deemed to refer to the Credit Agreement as amended by this Amendment.
9. This Amendment may be incorporated into executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the Note parties hereto may execute this Amendment by signing any such counterpart. This Amendment shall be construed in accordance with the internal laws (and not the law of conflicts) of the State of Illinois, but giving effect to federal laws applicable to national banks. This Amendment shall be effective when it has been executed by Borrower, the Initial Lenders and the New Lender and each Loan Document (whether party has notified the Agent by telecopy or not any provision of this Section is referred to therein)telephone that it has taken such action.
Appears in 1 contract
Maximum Interest. Regardless National Beef Packing Company Credit Agreement 78 No agreements, conditions, provisions or stipulations contained in this Agreement or in any of the other Financing Documents, or any provision Matured Default, or any exercise by the Agent of the right to accelerate the payment of the maturity of principal and interest, or to exercise any option whatsoever, contained in this Agreement or any of the Loan other Financing Documents, in no event shall the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence arising of any contingency whatsoever, shall entitle Bank the Agent to charge or receivecollect, or to require Borrower to payin any event, interest or any amounts deemed exceeding the Highest Lawful Rate, and in no event shall the Borrower be obligated to pay interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of exceeding the Maximum Highest Lawful Rate, and all provisions hereof agreements, conditions or stipulations, if any, which may in any Loan Document which may purport event or contingency whatsoever operate to require bind, obligate or compel the Borrower to pay Interest a rate of interest exceeding the Maximum Rate Highest Lawful Rate, shall be without binding force or effect effect, at law or in equity, to the extent only of the excess of Interest interest over such Maximum Highest Lawful Rate. Any Interest In the event any interest is charged or received in excess of the Maximum Highest Lawful Rate ("Excess"), the Borrower acknowledges and stipulates that any such charge shall be conclusively presumed to be the result of an accident accidental and bona fide error, and shallsuch Excess shall be, to the extent received by Bankfirst, at the option of Bank, either be applied to reduce the principal amount of any Liabilities due, and, second, returned to the Borrower, it being the intention of the Obligations parties hereto not to enter at any time into a usurious or returned to Borrowerotherwise illegal relationship. The right to accelerate Borrower and the maturity of any of Agent both recognize that, with fluctuations in the Obligations does not include Base Rate and the right to accelerate unaccrued interestLIBOR Rate, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Lawan unintentional result could inadvertently occur. By the execution of this Agreement, the Borrower covenants that (ia) the credit or return of any Excess shall constitute the acceptance by the Borrower of such Excess, Excess and (iib) the Borrower shall not seek or pursue any other remedy, legal or equitable, against Bankthe Agent, based any Issuer, the Swing Line Lender or the Lenders based, in whole or in part part, upon contracting for, the charging or receiving of any Interest interest in excess of the Maximum Highest Lawful Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by Bankthe Agent, any Issuer, the Swing Line Lender or the Lenders (as the case may be), all interest at any time contracted for, charged or received from Borrower by the Agent, the Issuers, the Swing Line Lender or the Lenders in connection with this Agreement shall, to the extent permitted by Applicable Law, Liabilities shall be amortized, prorated, allocated and spread in equal parts throughout during the full entire term of the Obligations. Borrower and Bank shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)Agreement.
Appears in 1 contract
Maximum Interest. Regardless It is the intention of the parties hereto to conform strictly to applicable interest, usury and criminal laws and, anything herein to the contrary notwithstanding, the obligations of the Company to a U.S. Lender or any Agent under this Agreement shall be subject to the limitation that payments of interest shall not be required to the extent that receipt thereof would be contrary to provisions of law applicable to such U.S. Lender or Agent limiting rates of interest which may be charged or collected by such U.S. Lender or Agent. Accordingly, if the transactions contemplated hereby would be illegal, unenforceable, usurious or criminal under laws applicable to a U.S. Lender or Agent (including the laws of any provision contained jurisdiction whose laws may be mandatorily applicable to such U.S. Lender or Agent notwithstanding anything to the contrary in this Agreement or any of the other U.S. Loan DocumentsDocument but subject to Section 3.8 hereof) then, in no event that event, notwithstanding anything to the contrary in this Agreement or any other U.S. Loan Document, it is agreed as follows:
(a) the provisions of this Section 3.2 shall govern and control;
(b) the aggregate of all amounts consideration which constitutes interest under applicable law that are is contracted for, taken, reserved, charged or collected pursuant to the terms of received under this Agreement, the Note or any of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit other aforesaid agreements or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by Bank, all interest at any time contracted for, charged or received from Borrower otherwise in connection with this Agreement by such U.S. Lender or Agent shall under no circumstances exceed the maximum amount of interest allowed by applicable law (such maximum lawful interest rate, if any, with respect to each U.S. Lender and the Agent herein called the "Highest Lawful Rate"), and any excess shall be cancelled automatically and if theretofore paid shall be credited to the Company by such U.S. Lender or Agent (or, if such consideration shall have been paid in full, such excess refunded to the Company);
(c) all sums paid, or agreed to be paid, to such U.S. Lender or Agent for the use, forbearance and detention of the indebtedness of the Company to such U.S. Lender or Agent hereunder or under any U.S. Loan Document shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank shall, laws applicable to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein).such U.S. Lender
Appears in 1 contract
Sources: Credit Agreement (Apache Corp)
Maximum Interest. Regardless of any provision contained in Lender and Borrower intend that this Agreement and the other Loan Documents conform to all applicable usury laws. Accordingly, no provisions of the Loan Documents shall require the payment or permit the collection of interest in excess of the maximum rate permitted by applicable law ("Maximum Rate"), or obligate Borrower to pay any of taxes, assessments, charges, insurance premiums or other amounts which are held to constitute interest to the extent that such payments, when added to the other obligations under the Loan Documents, in no event shall the aggregate of all amounts that are contracted would be held to constitute contracting for, charged or collected pursuant to the terms of this Agreementpayment by Borrower of, the Note or any of the Loan Documents, and that are deemed interest under Applicable Law, exceed at a rate greater than the Maximum Rate. No provision Lender and Borrower further agree that:
(i) if any excess of this Agreement interest in such respect is herein or in any such other instrument provided for, or shall be adjudicated to be so provided for herein or in any such instrument, the provisions of this subsection 8.15 shall govern, and neither Borrower nor its successors or assigns shall be obligated to pay the amount of such interest to the extent it is in excess of the Loan Documents or Maximum Rate;
(iii) if the exercise by Bank maturity of any right hereunder Loan Document is accelerated for any reason, or in the event of any prepayment by Borrower, or in any other event, earned interest may never include more than the Maximum Rate, computed from the date of disbursement of the funds evidenced by such Loan Document until payment, and any interest otherwise payable under such Loan Document that is in excess of the Maximum Rate shall be canceled automatically as of such acceleration or such other event and (if theretofore paid) shall be credited against principal;
(iv) if it should be held that any interest payable or chargeable under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") is in excess of the Maximum Rate, and all provisions hereof the interest payable or in any chargeable under such Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect reduced to the extent only of maximum amount permitted by applicable federal or state law, whichever shall permit the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued higher lawful interest, as construed by courts having jurisdiction thereof; and
(v) the spreading, prorating and no such amortizing of interest will be collected by Bank. All monies paid to Bank hereunder or under any over the Maturity Date of the Loan Documents shall be subject to any rebate of unearned interest as and allowed to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by Bank, all interest at any time contracted for, charged or received from Borrower in connection with this Agreement shall, to the fullest extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)applicable law.
Appears in 1 contract
Maximum Interest. Regardless of any provision contained in this Agreement or any of the Loan Documents, in no event shall the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note Notes or any of the Loan Documents, and that are deemed interest under Applicable LawLaws, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law Laws (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable LawLaws. By the execution of this Agreement, Borrower covenants that (ia) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (iib) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by Bank, all interest at any time contracted for, charged or received from Borrower in connection with this Agreement shall, to the extent permitted by Applicable LawLaws, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank shall, to the maximum extent permitted under Applicable LawLaws, (ia) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (iib) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note Notes and each Loan Document (whether or not any provision of this Section is referred to therein).
Appears in 1 contract
Maximum Interest. Regardless No agreements, conditions, provisions or stipulations contained in this Agreement or in any of the other Loan Documents, or any provision Matured Default, or any exercise by the Lender of the right to accelerate the payment of the maturity of principal and interest, or to exercise any option whatsoever, contained in this Agreement or any of the other Loan Documents, in no event shall the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence arising of any contingency whatsoever, shall entitle Bank the Lender to charge or receivecollect, or to require Borrower to payin any event, interest or any amounts deemed exceeding the Highest Lawful Rate, and in no event shall the Borrower be obligated to pay interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of exceeding the Maximum Highest Lawful Rate, and all provisions hereof agreements, conditions or stipulations, if any, which may in any Loan Document which may purport event or contingency whatsoever operate to require bind, obligate or compel the Borrower to pay Interest a rate of interest exceeding the Maximum Rate Highest Lawful Rate, shall be without binding force or effect effect, at law or in equity, to the extent only of the excess of Interest interest over such Maximum Highest Lawful Rate. Any Interest In the event any interest is charged or received in excess of the Maximum Highest Lawful Rate ("“Excess"”), the Borrower acknowledges and stipulates that any such charge shall be conclusively presumed to be the result of an accident any accidental and bona fide error, and shallsuch Excess shall be, to the extent received by Bankfirst, at the option of Bank, either be applied to reduce the principal amount of any Liabilities due, and, second, returned to the Borrower, it being the intention of the Obligations parties hereto not to enter at any time into a usurious or returned to Borrowerotherwise illegal relationship. The right to accelerate Borrower and the maturity of any of Lender both recognize that, with fluctuations in the Obligations does not include Base Rate and the right to accelerate unaccrued interestLIBOR Rate, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Lawan unintentional result could inadvertently occur. By the execution of this Agreement, the Borrower covenants that (ia) the credit or return of any Excess shall constitute the acceptance by the Borrower of such Excess, Excess and (iib) the Borrower shall not seek or pursue any other remedy, legal or equitable, against Bankthe Lender based, based in whole or in part part, upon contracting for, the charging or receiving of any Interest interest in excess of the Maximum Highest Lawful Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by Bankthe Lender, all interest at any time contracted for, charged or received from Borrower by the Lender in connection with this Agreement shall, to the extent permitted by Applicable Law, Liabilities shall be amortized, prorated, allocated and spread in equal parts throughout during the full entire term of the Obligations. Borrower and Bank shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)Agreement.
Appears in 1 contract
Maximum Interest. Regardless of any provision contained in this Agreement or any of the Loan Documents, in no contingency or event whatsoever shall the aggregate of all amounts that are contracted for, charged or collected received by Agent and Lenders pursuant to the terms of this Agreement, the Note Agreement or any of the other Loan Documents, Documents and that are deemed interest under Applicable Law, Law exceed the Maximum Ratehighest rate permissible under any Applicable Law. No provision of agreements, conditions, provisions or stipulations contained in this Agreement or in any of the other Loan Documents or the exercise by Bank Agent of the right to accelerate the payment or the maturity of all or any portion of the Obligations, or the exercise of any right hereunder or under option whatsoever contained in any of the Loan Document Documents, or the prepayment by Borrower Borrowers of any of the Obligations Obligations, or the occurrence of any contingency whatsoever, shall entitle Bank Agent or any Lender to charge or receive, or to require Borrower to payreceive in any event, interest or any amounts charges, amounts, premiums or fees deemed interest by Applicable Law (such amounts being interest, charges, amounts, premiums and fees referred to herein collectively as "“Interest"”) in excess of the Maximum Rate and in no event shall Borrowers be obligated to pay Interest exceeding such Maximum Rate, and all provisions hereof agreements, conditions or stipulations, if any, which may in any Loan Document which may purport event or contingency whatsoever operate to require Borrower bind, obligate or compel Borrowers to pay Interest exceeding the Maximum Rate shall be without binding force or effect effect, at law or in equity, to the extent only of the excess of Interest over such Maximum Rate. Any If any Interest is charged or received with respect to the Obligations in excess of the Maximum Rate ("“Excess"”), each Borrower stipulates that any such charge or receipt shall be conclusively presumed to be the result of an accident and bona fide error, and shallsuch Excess, to the extent received by Bankreceived, at the option of Bank, either shall be applied first to reduce the principal amount of such Obligations and the balance, if any, returned to Borrowers, it being the intent of the Obligations parties hereto not to enter into a usurious or returned to Borrowerotherwise illegal relationship. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestany Interest that has not otherwise accrued on the date of such acceleration, and no Agent and Lenders do not intend to collect any unearned Interest in the event of any such acceleration. Each Borrower recognizes that, with fluctuations in the rates of interest will be collected by Bankset forth in Section 3.1.1 of this Agreement or in the Notes, and the Maximum Rate, such an unintentional result could inadvertently occur. All monies paid to Bank Agent or any Lender hereunder or under any of the other Loan Documents Documents, whether at maturity or by prepayment, shall be subject to any rebate of unearned interest Interest as and to the extent required by Applicable Law. By the execution of this Agreement, each Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by such Borrower of such Excess, and (ii) such Borrower shall not seek or pursue any other remedy, legal or equitable, against BankAgent or any Lender, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by BankAgent or any Lender, all interest Interest at any time contracted for, charged or received from Borrower Borrowers in connection with this Agreement any of the Loan Documents shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower Borrowers, Agent and Bank Lenders shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section 3.11 shall be deemed to be incorporated into the Note and each every Loan Document (whether or not any provision of this Section is referred to therein). All such Loan Documents and communications relating to any Interest owed by Borrowers and all figures set forth therein shall, for the sole purpose of computing the extent of Obligations, be automatically recomputed by Borrowers, and by any court considering the same, to give effect to the adjustments or credits required by this Section 3.11.
Appears in 1 contract
Maximum Interest. Regardless of any provision contained in this Agreement or any of the Loan Credit Documents, in no contingency or event whatsoever shall the aggregate of all amounts that are contracted for, charged or collected received by Agent or any Lender pursuant to the terms of this Agreement, the Note Agreement or any of the Loan Documents, other Credit Documents and that are deemed interest under Applicable Law, Law exceed the Maximum Ratehighest rate permissible under any Applicable Law. No provision of agreements, conditions, provisions or stipulations contained in this Agreement or in any of the Loan other Credit Documents or the exercise by Bank Agent of the right to accelerate the payment or the maturity of all or any portion of the Obligations, or the exercise of any right hereunder or under option whatsoever contained in any Loan Document of the Credit Documents, or the prepayment by Borrower Borrowers of any of the Obligations Obligations, or the occurrence of any contingency whatsoever, shall entitle Bank Agent or any Lender to charge or receive, or to require Borrower to payreceive in any event, interest or any amounts charges, amounts, premiums or fees deemed interest by Applicable Law (such amounts being interest, charges, amounts, premiums and fees referred to herein collectively as "Interest") in excess of the Maximum Rate and in no event shall Borrowers be obligated to pay Interest exceeding such Maximum Rate, and all provisions hereof agreements, conditions or stipulations, if any, which may in any Loan Document which may purport event or contingency whatsoever operate to require Borrower bind, obligate or compel Borrowers to pay Interest exceeding the Maximum Rate shall be without binding force or effect effect, at law or in equity, to the extent only of the excess of Interest over such Maximum Rate. Any If any Interest is charged or received in excess of the Maximum Rate ("Excess"), each Borrower acknowledges and stipulates that any such charge or receipt shall be conclusively presumed to be the result of an accident and bona fide error, and shallsuch Excess, to the extent received by Bankreceived, at the option of Bank, either shall be applied first to reduce the principal amount Obligations and the balance, if any, returned to Borrowers, it being the intent of the Obligations parties hereto not to enter into a usurious or returned to Borrowerotherwise illegal relationship. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestany Interest that has not otherwise accrued on the date of such acceleration, and no neither Agent nor any Lenders intend to collect any unearned Interest in the event of any such acceleration. Each Borrower recognizes that, with fluctuations in the rates of interest will be collected by Bankset forth in Section 3.1.1 of this Agreement, and the Maximum Rate, such an unintentional result could inadvertently occur. All monies paid to Bank Agent or any Lender hereunder or under any of the Loan Documents other Credit Documents, whether at maturity or by prepayment, shall be subject to any rebate of unearned interest Interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants Borrowers covenant that (i) the credit or return of any Excess shall constitute the acceptance by Borrower Borrowers of such Excess, and (ii) no Borrower shall not seek or pursue any other remedy, legal or equitable, against BankAgent or any Lender, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by BankAgent or any Lender, all interest Interest at any time contracted for, charged or received from Borrower Borrowers in connection with this Agreement any of the Credit Documents shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower Borrowers, Agent and Bank Lenders shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section 3.10 shall be deemed to be incorporated into the Note and each Loan every Credit Document (whether or not any provision of this Section is referred to therein). All such Credit Documents and communications relating to any Interest owed by Borrowers and all figures set forth therein shall, for the sole purpose of computing the extent of Obligations, be automatically recomputed by Borrowers, and by any court considering the same, to give effect to the adjustments or credits required by this Section 3.10.
Appears in 1 contract
Maximum Interest. Regardless It is the intention of the parties hereto that each Bank shall conform strictly to usury laws applicable to it. Accordingly, if the transactions contemplated hereby would be usurious as to any provision contained in this Agreement Bank under laws applicable to it (including the laws of the United States of America and the State of Texas or any of other jurisdiction whose laws may be mandatorily applicable to such Bank notwithstanding the Loan Documents, in no event shall the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms other provisions of this Agreement), then, in that event, notwithstanding anything to the Note or any of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or contrary in any of the Loan Documents or any agreement entered into in connection with or as security for the exercise Notes, it is agreed as follows:
(i) the aggregate of all consideration which constitutes interest under law applicable to any Bank that is contracted for, taken, reserved, charged or received by such Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations Loan Documents or agreements or otherwise in connection with the occurrence of any contingency whatsoever, Notes shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest under no circumstances exceed the maximum amount allowed by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rateapplicable law, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate excess shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), cancelled automatically and if theretofore paid shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received credited by Bank, at the option of Bank, either be applied to reduce such Bank on the principal amount of the Obligations (or, to the extent that the principal amount of the Obligations shall have been or returned would thereby be paid in full, refunded by such Bank to the Borrower. The right to accelerate ); and
(ii) in the event that the maturity of the Notes is accelerated by reason of an election of the holder thereof resulting from any Event of Default under this Agreement or otherwise, or in the event of any required or permitted prepayment, then such consideration that constitutes interest under law applicable to any Bank may never include more than the maximum amount allowed by such applicable law, and excess interest, if any, provided for in this Agreement or otherwise shall be cancelled automatically by such Bank as of the date of such acceleration or prepayment and, if theretofore paid, shall be credited by such Bank on the principal amount of the Obligations does not include the right to accelerate unaccrued interest(or, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By that the execution of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess principal amount of the Maximum RateObligations shall have been or would thereby be paid in full, refunded by such Bank to the Borrower). For All sums paid or agreed to be paid to any Bank for the purpose use, forbearance or detention of determining whether or not any Excess has been contracted for, charged or received by Bank, all interest at any time contracted for, charged or received from Borrower in connection with this Agreement sums due hereunder shall, to the extent permitted by Applicable Lawlaw applicable to such Bank, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank shall, to Loans evidenced by the Notes until payment in full so that the rate or amount of interest on account of any Loans hereunder does not exceed the maximum extent permitted under Applicable Law, amount allowed by such applicable law. If at any time and from time to time (i) characterize the amount of interest payable to any non-principal payment as an expense, fee or premium rather than as Interest Bank on any date shall be computed at the Highest Lawful Rate applicable to such Bank pursuant to this Section 9.9 and (ii) exclude voluntary prepayments and in respect of any subsequent interest computation period the effects thereof. The provisions amount of interest otherwise payable to such Bank would be less than the amount of interest payable to such Bank computed at the Highest Lawful Rate applicable to such Bank, then the amount of interest payable to such Bank in respect of such subsequent interest computation period shall continue to be computed at the Highest Lawful Rate applicable to such Bank until the total amount of interest payable to such Bank shall equal the total amount of interest which would have been payable to such Bank if the total amount of interest had been computed without giving effect to this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)9.
Appears in 1 contract
Maximum Interest. Regardless It is the intention of the parties hereto to conform strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the obligations of the Sellers to Purchaser under this Agreement and the other Operative Documents shall be subject to the limitation that payments of interest shall not be required to the extent that receipt thereof would be contrary to provisions of law applicable to Purchaser limiting rates of interest which may be contracted for, charged, reserved, received, or taken by Purchaser. Accordingly, if the transactions contemplated hereby would be usurious under applicable law (including the Federal and state Laws of the United States of America, or of any provision contained other jurisdiction whose laws may be mandatorily applicable) with respect to Purchaser then, in that event, notwithstanding anything to the contrary in this Agreement or any other Operative Document, it is agreed as follows: (a) the provisions of the Loan Documents, in no event this Section 8.14 shall govern and control; (b) the aggregate of all amounts consideration which constitutes interest under applicable law that are is contracted for, charged charged, received, reserved, or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed interest taken under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receiveother Operative Document, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by Bank, all interest at any time contracted for, charged or received from Borrower otherwise in connection with this Agreement or the transactions contemplated by the Operative Documents by Purchaser shall under no circumstances exceed the maximum amount of interest allowed by applicable law (such maximum lawful interest rate, if any, with respect to Purchaser herein called the "HIGHEST LAWFUL RATE"), and any excess shall be credited to the Sellers by Purchaser (or, if such consideration shall have been paid in full, such excess refunded to the Sellers); (c) all sums paid, or agreed to be paid, to Purchaser for the use, forbearance, and detention of any indebtedness of the Sellers to Purchaser hereunder or under any other Operative Document shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated allocated, and spread in equal parts throughout the full term of any such indebtedness until payment in full so that the Obligationsactual rate of interest does not exceed the Highest Lawful Rate; and (d) if at any time the sum of the interest and all other amounts payable pursuant to this Agreement and the other Operative Documents that are deemed to be interest under applicable law exceeds that amount which would have accrued at the Highest Lawful Rate, the interest and other amounts to accrue to Purchaser pursuant to this Agreement and the other Operative Documents shall be limited, notwithstanding anything to the contrary in this Agreement or any other Operative Document, to that amount which would have accrued at the Highest Lawful Rate, but any subsequent reductions, as applicable, shall not reduce the interest or other amounts payable to Purchaser pursuant to this Agreement and the other Operative Documents below the Highest Lawful Rate until the total amount of interest accrued pursuant to this Agreement and the other Operative Documents and such other amounts deemed to be interest equals the amount that would have accrued to Purchaser if the rate per annum set forth in the Note had at all times been in effect, PLUS all other amounts that which would have been received but for the effect of this Section 8.14. Borrower and Bank shallFor purposes of Article 5069-1.04, Vernon's Texas Civil Statutes, as amended, to the maximum extent, if any, applicable to Purchaser, the Sellers agree that the Highest Lawful Rate shall be the "indicated (weekly) rate ceiling" as defined in said Article; PROVIDED that Purchaser may also rely, to the extent permitted by applicable laws, on alternative maximum rates of interest under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereofother laws applicable to Purchaser if greater. The provisions of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)Tex. Rev. Civ.
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (Equalnet Holding Corp)
Maximum Interest. Regardless of any provision contained in this Agreement or any of the Loan Documents, in no event shall the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Secured Note or any of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank Lender of any right hereunder or under any Loan Document or the prepayment by Borrower Obligors of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank Lender to charge or receive, or to require Borrower Obligors to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "“Interest"”) in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower Obligors to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("“Excess"”), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by BankLender, at the option of BankLender, either be applied to reduce the principal amount of the Obligations or returned to BorrowerObligors. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by BankLender. All monies paid to Bank Lender hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower each Obligor covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower Obligor of such Excess, and (ii) Borrower each Obligor shall not seek or pursue any other remedy, legal or equitable, against BankLender, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by BankLender, all interest at any time contracted for, charged or received from Borrower Obligor in connection with this Agreement shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower Each Obligor and Bank Lender shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Secured Note and each Loan Document (whether or not any provision of this Section is referred to therein).
Appears in 1 contract
Maximum Interest. Regardless It is the intention of the parties hereto that the Agent and each Lender shall conform strictly to usury laws applicable to it. Accordingly, if the transactions contemplated hereby or by any provision contained other Loan Document would be usurious as to the Agent or any Lender under laws applicable to it (including the laws of the United States of America and the State of New York or any other jurisdiction whose laws may be mandatorily applicable to the Agent or such Lender notwithstanding the other provisions of this Agreement), then, in that event, notwithstanding anything to the contrary in this Agreement or any of other Loan Document or any agreement entered into in connection with or as security for the Loan DocumentsObligations, in no event shall it is agreed as follows:
(i) the aggregate of all amounts consideration which constitutes interest under law applicable to the Agent or any Lender that are is contracted for, taken, reserved, charged or collected pursuant to received by the terms of this Agreement, the Note Agent or any of the Loan Documents, and that are deemed interest such Lender under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any other Loan Document or the prepayment by Borrower of any of agreements or otherwise in connection with the Obligations or shall under no circumstances exceed the occurrence of maximum amount allowed by such applicable law, any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), canceled automatically and if theretofore paid shall be conclusively presumed to be credited by the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce Agent or such Lender on the principal amount of the Obligations or returned (or, to Borrower. The right to accelerate the maturity of any extent that the principal amount of the Obligations does not include shall have been or would thereby be paid in full, refunded by the right to accelerate unaccrued interestAgent or such Lender, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and applicable, to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, Borrowers); and (ii) Borrower shall not seek in the event that the maturity of the Obligations is accelerated by reason of any Event of Default under this Agreement or pursue any other remedyotherwise, legal or equitable, against Bank, based in whole or in part upon contracting forthe event of any required or permitted prepayment, charging then such consideration that constitutes interest under law applicable to the Agent or receiving any Interest Lender may never include more than the maximum amount allowed by such applicable law, and excess interest, if any, provided for in excess this Agreement or otherwise shall be canceled automatically by the Agent or such Lender, as applicable, as of the Maximum Ratedate of such acceleration or prepayment and, if theretofore paid, shall be credited by the Agent or such Lender, as applicable, on the principal amount of the Obligations (or, to the extent that the principal amount of the Obligations shall have been or would thereby be paid in full, refunded by the Agent or such Lender to the Borrowers). For All sums paid or agreed to be paid to the purpose Agent or any Lender for the use, forbearance or detention of determining whether or not any Excess has been contracted for, charged or received by Bank, all interest at any time contracted for, charged or received from Borrower in connection with this Agreement sums due hereunder shall, to the extent permitted by Applicable Lawlaw applicable to the Agent or such Lender, be amortized, prorated, allocated and spread in equal parts throughout the full term of the ObligationsLoans until payment in full so that the rate or amount of interest on account of any Loans hereunder does not exceed the maximum amount allowed by such applicable law. Borrower If at an time and Bank shall, from time to time (x) the amount of interest payable to the maximum extent permitted under Applicable Law, (i) characterize Agent or any non-principal payment as an expense, fee Lender on any date shall be computed at the Highest Lawful Rate applicable to the Agent or premium rather than as Interest such Lender pursuant to this Section 12.19 and (iiy) exclude voluntary prepayments and in respect of any subsequent interest computation period the effects thereof. The provisions amount of interest otherwise payable to the Agent or such Lender would be less than the amount of interest payable to the Agent or such Lender computed at the Highest Lawful Rate applicable to the Agent or such Lender, then the amount of interest payable to the Agent or such Lender in respect of such subsequent interest computation period shall continue to be computed at the Highest Lawful Rate applicable to the Agent or such Lender until the total amount of interest payable to the Agent or such Lender shall equal the total amount of interest which would have been payable to the Agent or such Lender if the total amount of interest had been computed without giving effect to this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)12.19.
Appears in 1 contract
Sources: Financing Agreement (Value City Department Stores Inc /Oh)
Maximum Interest. Regardless It is the intention of the parties hereto to conform strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the Obligations of the Borrower to each Lender under this Agreement shall be subject to the limitation that payments of interest shall not be required to the extent that receipt thereof would be contrary to provisions of law applicable to such Lender limiting rates of interest that may be charged or collected by such Lender. Accordingly, if the transactions contemplated hereby would be usurious under Applicable Law (including the Federal and state laws of the United States of America, or of any provision contained other jurisdiction whose laws may be mandatorily applicable) with respect to a Lender, then, in that event, notwithstanding anything to the contrary in this Agreement or any Agreement, it is agreed as follows: (a) the provisions of the Loan Documents, in no event this Section 10.18 shall govern and control; (b) the aggregate of all amounts consideration that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed constitutes interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been is contracted for, charged or received by Bankunder this Agreement, all interest at or under any time contracted for, charged other Loan Document or received from Borrower otherwise in connection with this Agreement by such Lender shall under no circumstances exceed the Highest Lawful Rate with respect to such Lender, and any excess shall be credited to the Borrower by such Lender (or, if such consideration shall have been paid in full, such excess promptly refunded to the Borrower); (c) all sums paid, or agreed to be paid, to such Lender for the use, forbearance and detention of the indebtedness of the Borrower to such Lender hereunder shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of such indebtedness until payment in full so that the Obligationsactual rate of interest is uniform throughout the full term thereof; and (d) if at any time the interest provided pursuant to Section 3.2, together with any other fees and expenses payable pursuant to this Agreement and the other Loan Documents and deemed interest under Applicable Law, exceeds that amount that would have accrued at the Highest Lawful Rate, then the amount of interest and any such fees to accrue to such Lender pursuant to this Agreement shall be limited, notwithstanding anything to the contrary in this Agreement, to that amount that would have accrued at the Highest Lawful Rate, but any subsequent reductions, as applicable, shall not reduce the interest to accrue to such Lender pursuant to this Agreement below the Highest Lawful Rate until the total amount of interest accrued pursuant to this Agreement and such fees deemed to be interest equals the amount of interest that would have accrued to such Lender if a rate per annum equal to the interest provided pursuant to Section 3.2 had at all times been in effect, plus the amount of fees that would have been received but for the effect of this Section 10.18. In regards to the foregoing, in determining whether or not the interest paid or payable with respect to any Indebtedness of the Borrower to the Lenders, under any specified contingency, exceeds the Highest Lawful Rate, the Borrower and Bank the Lenders shall, to the maximum extent permitted under by Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and interest, (ii) exclude voluntary prepayments and the effects thereof, (iii) amortize, prorate, allocate and spread the total amount of interest throughout the entire contemplated term of such Indebtedness so that interest thereon does not exceed the maximum amount permitted by Applicable Law, and (iv) allocate interest between portions of such Indebtedness, to the end that no such portion shall bear interest at a rate greater than that permitted by Applicable Law. The provisions right to accelerate the maturity of the this Loans under this Agreement and the other Obligations does not include the right to accelerate any interest which has not otherwise accrued on the date of such acceleration, and the Lenders do not intend to charge or receive any unearned interest in the event of acceleration. In the event Applicable Law provides for an interest ceiling under Section 303 of the Texas Finance Code, that ceiling shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)weekly ceiling.
Appears in 1 contract
Sources: First Lien Credit Agreement (Radiant Oil & Gas Inc)
Maximum Interest. Regardless of any provision contained in this Agreement or any of the Loan Documents, in no event the holder hereof shall the aggregate of all amounts that are contracted never be entitled to contract for, charged or collected pursuant to the terms of this Agreementcharge, the Note or any of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, take, collect, reserve or to require Borrower to pay, apply as interest or on this Note any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") amount in excess of the Maximum Rate, and all provisions hereof and, in the event that holder ever receives, takes, reserves, collects or in applies as interest any Loan Document such excess, the amount which may purport to require Borrower to pay Interest exceeding the Maximum Rate would be excessive interest shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed deemed to be the result a partial prepayment of an accident principal and bona fide errortreated hereunder as such; and, and shallif this Note is paid in full, to the extent received by Bank, at the option of Bank, either any remaining excess shall forthwith be applied to reduce the principal amount of the Obligations or returned paid to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of In determining whether or not the interest paid or payable under any Excess has been contracted forspecific contingency exceeds the Maximum Rate, charged or received by Bank, all interest at any time contracted for, charged or received from Borrower in connection with this Agreement and the holder hereof shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank shall, to the maximum extent permitted under Applicable Lawapplicable law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and interest; (ii) exclude voluntary and mandatory prepayments and the effects thereof. The provisions ; and (iii) amortize, prorate, allocate and spread the total amount of this Section shall be deemed to be incorporated into interest through the entire contemplated term of the Note; provided that, if the Note is paid and performed in full prior to the end of the full contemplated term thereof, and if the interest received for the actual period of existence thereof exceeds the Maximum Rate, the holder shall refund to Borrower the amount of such excess or credit the amount of such excess against the principal amount of the Note and, in such event, the Holder shall not be subject to any penalties provided by any laws for contracting for, charging, taking, reserving or receiving interest in excess of the Maximum Rate. To the extent federal law permits Lender to contract for, charge or receive a greater amount of interest, Lender will rely on federal law instead of the Texas Finance Code or the Texas Credit Title, as amended, for the purpose of determining the Maximum Rate. To the extent that the Texas Credit Title, as amended (the "ACT"), is relevant to any holder of the Loans for the purposes of determining the Maximum Rate, each Loan Document (whether or not any provision of this Section is such holder elects to determine such applicable legal rate under the Act pursuant to the "weekly ceiling", from time to time in effect, as referred to therein)and defined in Chapter 1D of the Act, as modified by Article 1H.003 of the Act; subject, however, to the limitations on such applicable ceiling referred to and defined in the Act, and further subject to any right such holder may have subsequently, under applicable law, to change the method of determining the Maximum Rate. In no event shall Chapter 346 of the Texas Finance Code (which regulates certain revolving loan accounts and revolving tri-party accounts) apply to this Note. To the extent that Chapter 303 of the Texas Finance Code is applicable to this Note, the "weekly ceiling" specified in Chapter 303 is the applicable ceiling; provided that, if any applicable law permits greater interest, the law permitting the greatest interest shall apply.
Appears in 1 contract
Maximum Interest. Regardless It is the intention of the parties hereto to conform strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the obligations of the Borrower to each Lender and the Issuer under this Agreement shall be subject to the limitation that payments of interest shall not be required to the extent that receipt thereof would be contrary to provisions of law applicable to such Lender or the Issuer limiting rates of interest that may be charged or collected by such Lender or the Issuer. Accordingly, if the transactions contemplated hereby would be usurious under applicable law (including the Federal and state laws of the United States of America, or of any provision contained other jurisdiction whose laws may be mandatorily applicable) with respect to a Lender or the Issuer then, in that event, notwithstanding anything to the contrary in this Agreement or any Agreement, it is agreed as follows: (a) the provisions of the Loan Documents, in no event this Section 4.11 shall govern and control; (b) the aggregate of all amounts consideration that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed constitutes interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants applicable law that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been is contracted for, charged or received by Bankunder this Agreement, all interest at or under any time contracted for, charged of the other aforesaid agreements or received from Borrower otherwise in connection with this Agreement Agreement, by such Lender or the Issuer shall under no circumstances exceed the maximum amount of interest allowed by applicable law (such maximum lawful interest rate, if any, with respect to such Lender or the Issuer herein called the “Highest Lawful Rate”), and any excess shall be credited to the outstanding principal of the Loans by such Lender or the Issuer (or, if such consideration shall have been paid in full, such excess promptly refunded to the Borrower); (c) all sums paid, or agreed to be paid, to such Lender or the Issuer for the use, forbearance and detention of the Indebtedness of the Borrower to such Lender or the Issuer hereunder shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of such Indebtedness until payment in full so that the Obligations. Borrower actual rate of interest is uniform throughout the full term thereof; and Bank shall(d) if at any time the interest provided pursuant to Section 3.2 together with any other fees payable pursuant to this Agreement and deemed interest under applicable law, exceeds that amount which would have accrued at the Highest Lawful Rate, the amount of interest and any such fees to accrue to such Lender or the Issuer pursuant to this Agreement shall be limited, notwithstanding anything to the contrary in this Agreement, to that amount which would have accrued at the maximum extent permitted under Applicable LawHighest Lawful Rate, (i) characterize but any non-principal payment subsequent reductions, as an expenseapplicable, fee shall not reduce the interest to accrue to such Lender or premium rather than as Interest the Issuer pursuant to this Agreement below the Highest Lawful Rate until the total amount of interest accrued pursuant to this Agreement and (ii) exclude voluntary prepayments and such fees deemed to be interest equals the effects thereof. The provisions amount of interest which would have accrued to such Lender or the Issuer if a varying rate per annum equal to the interest provided pursuant to Section 3.2 had at all times been in effect, plus the amount of fees which would have been received but for the effect of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)4.11.
Appears in 1 contract
Maximum Interest. Regardless It is the intention of any provision contained in the parties hereto to conform strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the obligations of the Seller to the Purchaser under this Agreement or any of and the Loan Documents, in no event shall the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan other Production Payment Documents shall be subject to any rebate the limitation that payments of unearned interest as and shall not be required to the extent required that receipt thereof would be contrary to provisions of law applicable to the Purchaser limiting rates of interest which may be charged or collected by Applicable Lawthe Purchaser. By Accordingly, if the execution transactions contemplated hereby would be usurious under applicable law (including the Federal and state laws of the United States of America, or of any other jurisdiction whose laws may be mandatorily applicable) with respect to the Purchaser then, in that event, notwithstanding anything to the contrary in this Agreement or the other Production Payment Documents, it is agreed as follows:
(a) the provisions of this Agreement, Borrower covenants that Section shall govern and control;
(ib) the credit or return aggregate of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been all consideration which constitutes interest under applicable law that is contracted for, charged or received by Bankunder this Agreement and the other Production Payment Documents, all interest at or under any time contracted for, charged of the other aforesaid agreements or received from Borrower otherwise in connection with this Agreement by the Purchaser shall under no circumstances exceed the maximum amount of interest allowed by applicable law (such maximum lawful interest rate, if any, with respect to the Purchaser herein called the "Highest Lawful Rate"), and any excess shall be credited to the Seller by the Purchaser (or, if such consideration shall have been paid in full, such excess refunded to the Seller);
(c) all sums paid, or agreed to be paid, to the Purchaser for the use, forbearance and detention of the amounts owed under this Agreement by the Seller to the Purchaser hereunder shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of such amounts owed under this Agreement and the Obligationsother Production Payment Documents until payment in full so that the actual rate of interest is uniform throughout the full term thereof; and
(d) if at any time the interest provided pursuant to Section 21 together with any other fees payable pursuant to this Agreement and the other Production Payment Documents and deemed interest under applicable law, exceeds that amount which would have accrued at the Highest Lawful Rate, the amount of interest and any such fees to accrue to the Purchaser pursuant to this Agreement and the other Production Payment Documents shall be limited, notwithstanding anything to the contrary in this Agreement or in any other Production Payment Document to that amount which would have accrued at the Highest Lawful Rate, but any subsequent reductions, as applicable, shall not reduce the interest to accrue to the Purchaser pursuant to this Agreement and other Production Payment Documents below the Highest Lawful Rate until the total amount of interest accrued pursuant to this Agreement and the other Production Payment Documents and such fees deemed to be interest equals the amount of interest which would have accrued to the Purchaser if a varying rate per annum equal to the interest provided pursuant to Section 21 had at all times been in effect, plus the amount of fees which would have been received but for the effect of this Section. Borrower In the event applicable law provides for an interest ceiling under ss.303 of the Texas Finance Code and Bank shallChapter ID of Title 79, Texas Revised Civil Statutes Annotated, that ceiling shall be the "indicated rate ceiling" or "weekly ceiling" as defined in the Texas Finance Code or such Chapter 1D, provided that the Purchaser may also rely, to the maximum extent permitted by applicable laws, on alternative maximum rates of interest under Applicable Lawother laws applicable to the Purchaser if greater. As used in this section the term "applicable law" means the laws of the State of Texas or the laws of the United States of America, (i) characterize any non-principal payment whichever laws allow the greater interest, as an expense, fee such laws now exist or premium rather than as Interest and (ii) exclude voluntary prepayments and may be changed or amended or come into effect in the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)future.
Appears in 1 contract
Maximum Interest. Regardless It is the intention of the parties hereto to conform strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the obligations of the Borrower to the Administrative Agent and each Lender under this Agreement shall be subject to the limitation that payments of interest shall not be required to the extent that receipt thereof would be contrary to provisions of law applicable to the Administrative Agent or such Lender limiting rates of interest which may be charged or collected by the Administrative Agent or such Lender. Accordingly, if the transactions contemplated hereby would be usurious under applicable law (including the Federal and state laws of the United States of America, or of any provision contained other jurisdiction whose laws may be mandatorily applicable) with respect to the Administrative Agent or a Lender then, in that event, notwithstanding anything to the contrary in this Agreement or any Agreement, it is agreed as follows:
(a) the provisions of the Loan Documents, in no event this Section shall govern and control; (b) the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed consideration which constitutes interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants applicable law that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been is contracted for, charged or received by Bankunder this Agreement, all interest at or under any time contracted for, charged of the other aforesaid agreements or received from Borrower otherwise in connection with this Agreement by the Administrative Agent or such Lender shall under no circumstances exceed the maximum amount of interest allowed by applicable law (such maximum lawful interest rate, if any, with respect to such Lender herein called the “Highest Lawful Rate”), and any excess shall be credited to the Borrower by the Administrative Agent or such Lender (or, if such consideration shall have been paid in full, such excess refunded to the Borrower); (c) all sums paid, or agreed to be paid, to the Administrative Agent or such Lender for the use, forbearance and detention of the Indebtedness of the Borrower to the Administrative Agent or such Lender hereunder shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of such Indebtedness until payment in full so that the Obligations. Borrower actual rate of interest is uniform throughout the full term thereof; and Bank shall(d) if at any time the interest provided pursuant to Section 4.1 together with any other fees payable pursuant to this Agreement and the other Loan Documents and deemed interest under applicable law, exceeds that amount which would have accrued at the Highest Lawful Rate, the amount of interest and any such fees to accrue to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee Administrative Agent or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of such Lender pursuant to this Section Agreement shall be limited, notwithstanding anything to the contrary in this Agreement to that amount which would have accrued at the Highest Lawful Rate, but any subsequent reductions, as applicable, shall not reduce the interest to accrue to the Administrative Agent or such Lender pursuant to this Agreement below the Highest Lawful Rate until the total amount of interest accrued pursuant to this Agreement and such fees deemed to be incorporated into interest equals the Note and each Loan Document (whether amount of interest which would have accrued to the Administrative Agent or not any provision of this such Lender if a varying rate per annum equal to the interest provided pursuant to Section is referred to therein).3.2 had at all times
Appears in 1 contract
Sources: Credit Agreement (Noble Energy Inc)
Maximum Interest. Regardless of In the event that any provision contained in this Agreement or any of the Loan Documents, in no event shall the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of Note would oblige the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, make any payment of interest (more so than the maximum interest of 10% per annum agreed to herein) or any amounts deemed other payment which is construed by a court of competent jurisdiction to be interest in an amount or calculated at a rate which would be prohibited by Applicable Law (as defined below) or would result in a receipt by the Holder of interest at a criminal rate (as such amounts being referred terms are construed under the Criminal Code (Canada)), then notwithstanding such provision, such amount or rate will be deemed to have been adjusted nunc pro tunc to the maximum amount or rate of interest (which for clarity herein collectively is agreed to be calculated at 10% per annum), as "Interest"the case may be, as would not be so prohibited by Applicable Law or so result in a receipt by the Lender of interest at a criminal rate, and the following shall apply: (i) the provisions of this paragraph shall govern and control, (ii) neither the Borrower nor any other person or entity now or hereafter liable for the payment thereof, will be obligated to pay the amount of such interest to the extent that it is in excess of the Maximum Ratemaximum amount of interest permitted by such Applicable Law, (iii) any such excess which may have been collected will be either applied as a credit against the then unpaid principal amount thereof or refunded to the Borrower at the Holder’s option, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding (iv) the Maximum Rate shall be without binding force or effect to the extent only effective rate of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected automatically reduced to the maximum lawful rate of interest allowed under the Applicable Law as now or hereafter construed by Bankthe courts having jurisdiction thereof. All monies paid to Bank hereunder or under any It is further agreed that without limitation of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreementforegoing, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess all calculations of the Maximum Rate. For the purpose rate of determining whether or not any Excess has been interest contracted for, charged or received under the Note which are made for the purpose of determining whether such rate exceeds the maximum lawful rate of interest, will be made, to the extent permitted by BankApplicable Law, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the Note evidenced thereby, all interest at any time contracted for, charged or received from Borrower the Company or otherwise by the Holder in connection with this Agreement shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)Note.
Appears in 1 contract
Maximum Interest. Regardless It is the intention of any provision the parties hereto ---------------- that each Lender shall conform strictly to usury laws applicable to it. Accordingly, the parties hereto stipulate and agree that none of the terms and provisions contained in the Notes, this Agreement Agreement, any Collateral Document or any other Loan Document shall ever be construed to create a contract to pay to any Lender for the use, forbearance, or retention of money at a rate in excess of the Loan DocumentsHighest Lawful Rate applicable to such Lender, in no event and that for purposes hereof, "interest" shall include the aggregate of all amounts that charges or other consideration which constitute interest under applicable law and are contracted for, charged taken, reserved, charged, or collected pursuant to the terms received under any of this Agreement, the Note Notes, the Collateral Documents or the other Loan Documents or otherwise in connection with the transactions contemplated by this Agreement. Further, if the transactions contemplated hereby would be usurious as to any Lender under laws applicable to it, then, in that event, notwithstanding anything to the contrary in the Notes, this Agreement, any Collateral Document or in any other Loan Document or agreement entered into in connection with or as security for the Notes, it is agreed as follows: the aggregate of all consideration which constitutes interest under law applicable to each such Lender that is contracted for, taken, reserved, charged, or received by such Lender under the Notes, this Agreement, or under any of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the other aforesaid Loan Documents or agreements or otherwise in connection with the exercise Notes shall under no circumstances exceed the maximum amount allowed by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank law applicable to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum RateLender, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate excess shall be without binding force or effect to the extent only of the excess of Interest over credited by such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce Lender on the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any Indebtedness of the Obligations does not include Borrower owed to such Lender (or, if the right to accelerate unaccrued interestprincipal amount of such Indebtedness shall have been paid in full, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required such interest has been received by Applicable Lawa Lender it shall be refunded by such Lender to the Borrower). By The provisions of this Section 10.13
(a) shall control over all other provisions of ---------------- this Agreement, the execution Notes, the Collateral Documents and the other Loan Documents which may be in apparent conflict herewith. The parties further stipulate and agree that, without limitation on the foregoing, all calculations of the rate or amount of interest contracted for, taken, reserved, charged or received under any of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute Notes, the acceptance by Borrower of such Excess, Collateral Documents and (ii) Borrower shall not seek or pursue any the other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For Loan Documents which are made for the purpose of determining whether such rate or not any Excess has been contracted foramount exceed the Highest Lawful Rate shall be made, charged or received to the extent permitted by Bankapplicable law, by amortizing, prorating, allocating, and spreading during the period of the full stated term of the Indebtedness, and if longer and if permitted by applicable law, until payment in full, all interest at any time so contracted for, charged taken, reserved, charged, or received.
(b) If at any time the effective rate of interest which would otherwise apply to any Indebtedness hereunder or evidenced by any Lender's Notes would exceed the Highest Lawful Rate applicable to such Lender (taking into account the interest rate applicable to such Indebtedness pursuant to the other provisions of this Agreement, plus all additional charges and consideration which have been contracted for, taken, reserved, charged, or received under this Agreement, such Lender's Notes, the Collateral Documents, and the other Loan Documents, or any of them, and which additional charges or consideration (the "Additional Charges") constitute interest with respect to such Indebtedness), ------------------ the effective interest rate to apply to such Indebtedness made by such Lender shall be limited to the Highest Lawful Rate, but any subsequent reductions in the interest rate applicable to such Indebtedness owed to such Lender shall not reduce the effective interest rate to apply to such Indebtedness owed to such Lender below the Highest Lawful Rate applicable to such Lender until the total amount of interest accrued on such Indebtedness equals the amount of interest which would have accrued if the interest rate from Borrower time to time applicable to such Indebtedness owed to such Lender had at all times been in connection effect with respect to such Indebtedness pursuant to the other provisions of this Agreement and the other Loan Documents and if the Lenders had collected all Additional Charges called for under this Agreement, the Notes, the Collateral Documents and the other Loan Documents. If at maturity or final payment of such Lender's Obligations the total amount of interest paid to any Lender hereunder and under the other Loan Documents (including amounts designated as "interest" plus any Additional Charges which constitute interest with respect to such Lenders, and taking into account the limitations of the first sentence of this Section ------- 10.13(b)) is less than the total amount of such "interest" which would have been -------- paid if all amounts were paid as required by this Agreement (without giving effect to this Section 10.13) and the other Loan Documents (the amount of the ------------- difference described above, the "Deficiency"), then the Borrower agrees, to the ---------- fullest extent permitted by the laws applicable to such Lender, to pay to such Lender an amount equal to the lesser of (i) the difference between (1) the amount of such "interest" which would have accrued on such Lender's Notes if the Highest Lawful Rate had at all times been in effect, and (2) the amount of interest actually paid on such Lender's Notes (including amounts designated as "interest" plus any Additional Charges which constitute interest with respect to such Lender's Notes) and (ii) the amount of the Deficiency.
(c) Notwithstanding anything to the contrary contained above in this Section 10.13, it is understood and agreed that (i) all representations and ------------- warranties contained in this Agreement, in the Collateral Documents and in the other Loan Documents have been made without reliance upon, or giving effect to, the provisions of Section 10.13(a) and (ii) that the Lenders have relied upon ---------------- the accuracy of such representations and warranties. Furthermore, the Borrower acknowledges and agrees that each Lender shall, to the fullest extent permitted by Applicable Lawlaw, be amortized, prorated, allocated and spread entitled to recover damages from the Borrower in equal parts throughout the full term event of a material misrepresentation by the Obligations. Borrower and Bank shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)Borrower.
Appears in 1 contract
Sources: Credit Agreement (Aristotle Corp)
Maximum Interest. Regardless of any provision contained in The Lender and the Borrower intend that this Agreement and the other Loan Documents conform to all applicable usury laws. Accordingly, no provisions of the Loan Documents shall require the payment or permit the collection of interest in excess of the maximum rate permitted by applicable law ("Maximum Rate"), or obligate the Borrower to pay any of taxes, assessments, charges, insurance premiums or other amounts which are held to constitute interest to the extent that such payments, when added to the other obligations under the Loan Documents, in no event shall the aggregate of all amounts that are contracted would be held to constitute contracting for, charged or collected pursuant to the terms of this Agreementpayment by the Borrower of, the Note or any of the Loan Documents, and that are deemed interest under Applicable Law, exceed at a rate greater than the Maximum Rate. No provision The Lender and the Borrower further agree that:
(1) if any excess of interest in such respect is herein or in any such other instrument provided for, or shall be adjudicated to be so provided for herein or in any such instrument, the provisions of this Agreement subsection 8.16 shall govern, and neither the Borrower nor its successors or assigns shall be obligated to pay the amount of such interest to the extent it is in excess of the Maximum Rate;
(2) if at any time the amount of interest under any of the Loan Documents or for a calendar year exceeds the exercise by Bank Maximum Rate had the Maximum Rate at all times been in effect, the interest chargeable under any such Loan Document shall be limited to the amount of interest that could have been charged if the Maximum Rate had at all times been in effect, but any subsequent reductions in the interest due shall not reduce the rate of interest chargeable under any such Loan Document below the Maximum Rate until the total amount of interest accrued under any such Loan Document equals the amount of interest that would have accrued if the interest provided for in any such Loan Document had at all times been in effect and collectible;
(3) if the maturity of any right hereunder Loan Document is accelerated for any reason, or in the event of any prepayment by the Borrower, or in any other event, earned interest may never include more than the Maximum Rate, computed from the date of disbursement of the funds evidenced by such Loan Document until payment, and any interest otherwise payable under such Loan Document that is in excess of the Maximum Rate shall be canceled automatically as of such acceleration or such other event and (if theretofore paid) shall be credited against principal;
(4) if it should be held that any interest payable or chargeable under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") is in excess of the Maximum Rate, and all provisions hereof the interest payable or in any chargeable under such Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect reduced to the extent only of maximum amount permitted by applicable federal or state law, whichever shall permit the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued higher lawful interest, as construed by courts having jurisdiction thereof; and
(5) the spreading, prorating and no such amortizing of interest will be collected by Bank. All monies paid to Bank hereunder or under any over the term of the Loan Documents shall be subject to any rebate of unearned interest as and allowed to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by Bank, all interest at any time contracted for, charged or received from Borrower in connection with this Agreement shall, to the fullest extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)applicable law.
Appears in 1 contract
Maximum Interest. Regardless of any provision contained in this Agreement or any of the DIP Loan Documents, in no contingency or event whatsoever shall the aggregate of all amounts that are contracted for, charged or collected received by Agent and Lenders pursuant to the terms of this Agreement, the Note Agreement or any of the other DIP Loan Documents, Documents and that are deemed interest under Applicable Law, Law exceed the Maximum Ratehighest rate permissible under any Applicable Law. No provision of agreements, conditions, provisions or stipulations contained in this Agreement or in any of the other DIP Loan Documents or the exercise by Bank Agent of the right to accelerate the payment or the maturity of all or any portion of the Obligations, or the exercise of any right hereunder or under option whatsoever contained in any of the DIP Loan Document Documents, or the prepayment by Borrower any or all Borrowers of any of the Obligations Obligations, or the occurrence of any contingency whatsoever, shall entitle Bank Agent or any Lender to charge or receive, or to require Borrower to payreceive in any event, interest or any amounts charges, amounts, premiums or fees deemed interest by Applicable Law (such amounts being interest, charges, amounts, premiums and fees referred to herein collectively as "“Interest"”) in excess of the Maximum Rate and in no event shall Borrowers be obligated to pay Interest exceeding such Maximum Rate, and all provisions hereof agreements, conditions or stipulations, if any, which may in any Loan Document which may purport event or contingency whatsoever operate to require Borrower bind, obligate or compel Borrowers to pay Interest exceeding the Maximum Rate shall be without binding force or effect effect, at law or in equity, to the extent only of the excess of Interest over such Maximum Rate. Any If any Interest is charged or received in excess of the Maximum Rate ("“Excess"”), each Borrower acknowledges and stipulates that any such charge or receipt shall be conclusively presumed to be the result of an accident and bona fide error, and shallsuch Excess, to the extent received by Bankreceived, at the option of Bank, either shall be applied first to reduce the principal amount Obligations and the balance, if any, returned to Borrowers, it being the intent of the Obligations parties hereto not to enter into a usurious or returned to Borrowerotherwise illegal relationship. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestany Interest that has not otherwise accrued on the date of such acceleration, and no Agent and Lenders do not intend to collect any unearned Interest in the event of any such acceleration. Each Borrower recognizes that, with fluctuations in the rates of interest will be collected by Bankset forth in Section 2.1.1 of this Agreement, and the Maximum Rate, such an unintentional result could inadvertently occur. All monies paid to Bank Agent or any Lender hereunder or under any of the other DIP Loan Documents Documents, whether at maturity or by prepayment, shall be subject to any rebate of unearned interest Interest as and to the extent required by Applicable Law. By the execution of this Agreement, each Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by such Borrower of such Excess, and (ii) no Borrower shall not seek or pursue any other remedy, legal or equitable, against BankAgent or any Lender, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by BankAgent or any Lender, all interest Interest at any time contracted for, charged or received from Borrower any or all Borrowers in connection with this Agreement any of the DIP Loan Documents shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower Borrowers, Agent and Bank Lenders shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section 2.10 shall be deemed to be incorporated into the Note and each every Loan Document (whether or not any provision of this Section is referred to therein). All such DIP Loan Documents and communications relating to any Interest owed by any or all Borrowers and all figures set forth therein shall, for the sole purpose of computing the extent of Obligations, be automatically recomputed by Borrowers, and by any court considering the same, to give effect to the adjustments or credits required by this Section 2.10.
Appears in 1 contract
Sources: Loan and Security Agreement (Integrated Electrical Services Inc)
Maximum Interest. Regardless The provisions of any provision contained this Deed of Trust and of all ---------------- agreements between Grantor and Beneficiary, whether now existing or hereafter arising and whether written or oral, are hereby expressly limited so that in this Agreement no contingency or any event whatsoever, whether by reason of demand or acceleration of the Loan Documentsmaturity of the Note or otherwise, in no event shall the aggregate of all amounts that are amount contracted for, charged or collected pursuant to the terms of this Agreementcharged, the Note or any of the Loan Documentstaken, and that are deemed interest under Applicable Lawreserved, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receivepaid, or agreed to require Borrower to pay, interest or any amounts deemed interest by Applicable Law be paid (such amounts being referred to herein collectively as "Interest") to Beneficiary for the -------- use, forbearance or detention of the money loaned under the Note exceed the maximum amount permissible under applicable law. If, from any circumstance whatsoever, performance or fulfillment of any provision hereof or of any agreement between Grantor and Beneficiary shall, at the time performance or fulfillment of such provision shall be due, exceed the limit for Interest prescribed by law or otherwise transcend the limit of validity prescribed by applicable law, then ipso facto the obligation to be performed or fulfilled ---- ----- shall be reduced to such limit, and if, from any circumstance whatsoever, Beneficiary shall ever receive anything of value deemed Interest by applicable law in excess of the Maximum Ratemaximum lawful amount, and all provisions hereof or in an amount equal to any Loan Document which may purport to require Borrower to pay excessive Interest exceeding the Maximum Rate shall be without binding force or effect applied to the extent only reduction of the excess principal balance owing under the Note in the inverse order of Interest over such Maximum Rate. Any Interest charged its maturity (whether or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, not then due) or at the option of Bank, either Beneficiary be applied paid over to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestGrantor, and no such interest will be collected by Banknot to the payment of Interest. All monies paid Interest (including any amounts or payments judicially or otherwise under law deemed to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (iInterest) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged charged, taken, reserved, paid or received by Bank, all interest at any time contracted for, charged or received from Borrower in connection with this Agreement agreed to be paid to Beneficiary shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the ObligationsNote, including any extensions and renewals thereof until payment in full of the principal balance of the Note so that the Interest thereon for such full term will not exceed at any time the maximum amount permitted by applicable law. Borrower and Bank shallTo the extent that Beneficiary is relying on Article 5069-1.04, as amended, of the Revised Civil Statutes of Texas to determine the maximum amount of Interest permitted by applicable law on the principal of the Note, Beneficiary will utilize the indicated (weekly) rate ceiling from time to time in effect as provided in Article 5069-1.04, as amended. To the extent United States federal law permits a greater amount of interest than is permitted under Texas law, Beneficiary will rely on United States federal law instead of said Article 5069-1.04 for the purpose of determining the maximum amount permitted by applicable law. Additionally, to the maximum extent permitted by applicable law now or hereafter in effect, Beneficiary may, at its option and from time to time, implement any other method of computing the maximum lawful rate under Applicable LawArticle 5069-1.04, (i) characterize any non-principal payment as an expenseamended, fee or premium rather than under other applicable law by giving notice, if required, to Grantor as Interest and (ii) exclude voluntary prepayments and provided by applicable law now or hereafter in effect. In no event shall the effects thereof. The provisions of this Section shall be deemed ▇▇▇▇, ▇▇. 15 of the Revised Civil Statutes of Texas (which regulates certain revolving credit loan accounts and revolving tri-party accounts) apply to be incorporated into the Note indebtedness evidenced hereby. This paragraph will control all agreements between Grantor and each Loan Document (whether or not any provision of this Section is referred to therein)Beneficiary.
Appears in 1 contract
Sources: Deed of Trust and Security Agreement (Nei Webworld Inc)
Maximum Interest. Regardless It is the intention of the parties hereto to conform strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the obligations of the Borrower to the Lenders under this Agreement, the other Loan Documents and any other document or instrument executed in connection herewith or therewith, shall be subject to the limitation that payments of interest or of other amounts constituting interest under applicable law to a Lender shall not be required to the extent that receipt thereof would be in excess of the Highest Lawful Rate, or otherwise contrary to provisions of law applicable to such Lender limiting rates of interest which may be charged or collected by such Lender. Accordingly, if the transactions or the amount paid or otherwise agreed to be paid for the use, forbearance or detention of money under this Agreement, the other Loan Documents and any other document or instrument executed in connection herewith or therewith would exceed the Highest Lawful Rate or otherwise be usurious under applicable law (including the federal and state laws of the United States of America, or of any provision contained other jurisdiction whose laws may be mandatorily applicable) with respect to any Lender then, in that event, notwithstanding anything to the contrary in this Agreement or the other Loan Documents and any other document or instrument executed in connection herewith or therewith, it is agreed as follows as to such Lender:
(a) with respect to such Lender, the provisions of this Section 3.2.4 shall govern and control over any other provision in this Agreement, the other Loan Documents, Documents and any other document or instrument executed in no event shall connection herewith or therewith and each provision set forth therein is hereby so limited;
(b) the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed consideration which constitutes interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants applicable law that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been is contracted for, charged or received by Bankunder this Agreement, all interest at the other Loan Documents, or under any time contracted for, charged of the other aforesaid agreements or received from Borrower otherwise in connection with this Agreement by such Lender shall under no circumstances exceed the maximum amount of interest allowed by applicable law (such maximum lawful interest rate, if any, with respect to such Lender herein called the “Highest Lawful Rate”), and all amounts owed under this Agreement, the other Loan Documents and any other document or instrument executed in connection herewith or therewith shall be held subject to reduction and (i) the amount of interest which would otherwise be payable to such Lender hereunder and under the other Loan Documents and any other document or instrument executed in connection herewith or therewith, shall be automatically reduced to the amount allowed under applicable law and (ii) any unearned interest paid by the Borrower in excess of the Highest Lawful Rate shall be credited to the Borrower by such Lender (or, if such consideration shall have been paid in full, refunded to the Borrower);
(c) all sums paid, or agreed to be paid, to such Lender for the use, forbearance and detention of the indebtedness of the Borrower to such Lender hereunder shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of such indebtedness until payment in full so that the Obligations. Borrower actual rate of interest is uniform throughout the full term thereof;
(d) if at any time the interest provided pursuant to Sections 3.2.1 or 3.2.2, as the case may be, together with any other fees payable pursuant to or in connection with this Agreement and Bank shalldeemed interest under applicable law, with respect to any Lender exceeds that amount which would have accrued at the Highest Lawful Rate, the amount of interest and any such fees to accrue to such Lender pursuant to this Agreement shall be limited, notwithstanding anything to the maximum extent permitted under Applicable Lawcontrary in this Agreement to that amount which would have accrued at the Highest Lawful Rate for such Lender, but any subsequent reductions, as applicable, shall not reduce the interest to accrue pursuant to this Agreement below such Lender’s Highest Lawful Rate until the total amount of interest payable to such Lender (iincluding all consideration which constitutes interest) characterize any non-principal payment as an expenseequals the amount of interest which would have been payable to such Lender (including all consideration which constitutes interest) assuming a varying rate per annum equal to the interest provided pursuant to Sections 3.2.1 and 3.2.2 at all times in effect, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and plus the effects thereof. The provisions amount of fees which would have been received but for the effect of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)3.2.4.
Appears in 1 contract
Sources: Credit Agreement (Pogo Producing Co)
Maximum Interest. Regardless of any provision contained in this Agreement or any of the other Loan DocumentsDocument, in no contingency or event whatsoever shall the aggregate of all amounts that are contracted for, charged or collected received by Lender pursuant to the terms of this AgreementAgreement or any other Loan Document and that are deemed interest under applicable law exceed the highest rate permissible under any applicable law, which a court of competent jurisdiction shall, in a final determination, deem applicable hereto or thereto. No agreements, conditions, provisions or stipulations contained in any of the Note Loan Documents nor the exercise by Lender of the right to accelerate the payment nor the maturity of all or any portion of the Obligations nor the exercise of any option whatsoever contained in any of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or nor the prepayment by Borrower of any of the Obligations or Obligations, nor the occurrence of any contingency whatsoever, shall entitle Bank Lender to charge or receive, or to require Borrower to payin any event, interest or any amounts charges, amounts, premiums or fees deemed interest by Applicable Law applicable law (such amounts being interest, charges, amounts, premiums and fees referred to herein collectively as "“Interest"”) in excess of the Maximum Ratemaximum rate allowable under applicable law and in no event shall any Obligor be obligated to pay Interest exceeding such maximum rate, and all provisions hereof agreements, conditions, or stipulations, if any, which may in any Loan Document which may purport event or contingency whatsoever operate to require Borrower bind, obligate or compel any Obligor to pay Interest exceeding the Maximum Rate maximum rate allowable under applicable law shall be without binding force or effect effect, at law or in equity, to the extent only of the excess of Interest over such Maximum Ratemaximum rate. Any If any Interest is charged or received in excess of the Maximum Rate maximum rate allowable under applicable law ("“Excess"”), Borrower acknowledges and stipulates that any such charge or receipt shall be conclusively presumed to be the result of an accident and bona fide error, and shallsuch Excess, to the extent received by Bankreceived, at the option of Bank, either shall be applied first to reduce the principal amount of Obligations and the Obligations or balance, if any, returned to Borrower, it being the intent of the parties hereto not to enter into a usurious or other illegal relationship. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestany Interest that has not otherwise accrued on the date of such acceleration, and no such interest will be collected by Bank. All monies paid Lender does not intend to Bank hereunder or under collect any of unearned Interest in the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return event of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rateacceleration. For the purpose of determining whether or not any Excess has been contracted for, charged or received by BankLender, all interest Interest at any time contracted for, charged or received from Borrower in connection with this Agreement any of the Loan Documents shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each every Loan Document (whether or not any provision of this Section is referred to therein).
Appears in 1 contract
Sources: Loan and Security Agreement (Broadwind Energy, Inc.)
Maximum Interest. Regardless of any provision contained in this Agreement or any of the Loan DocumentsDocument, in no contingency or event whatsoever shall the aggregate of all amounts that are contracted for, charged or collected received by Lender pursuant to any Loan Document and that are deemed interest under applicable law exceed the terms highest rate permissible under any applicable law (the "Maximum Rate"). No agreements, conditions, provisions or stipulations contained in any Loan Documents or the exercise by Lender of this Agreement, the Note right to accelerate the payment or the maturity of all or any portion of the Obligations or the exercise of any other option whatsoever in any of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations Obligations, or the occurrence of any contingency whatsoever, shall entitle Bank Lender to charge or receive, or to require Borrower to payin any event, interest or any amounts charges, amounts, premiums or fees deemed interest by Applicable Law applicable law (such amounts being interest, charges, amounts, premiums and fees referred to herein collectively as "Interest") in excess of the Maximum Rate, and no Obligor shall be obligated to pay Interest exceeding such Maximum Rate, and all provisions hereof agreements, conditions, or in stipulations, if any, that may operate to bind, obligate or compel any Loan Document which may purport to require Borrower Obligor to pay Interest exceeding the Maximum Rate shall be without binding force or effect effect, at law or in equity, to the extent only of the excess of Interest over such Maximum Rate. Any If any Interest is charged or received in excess of the Maximum Rate ("Excess"), Borrower acknowledges and stipulates that any such charge or receipt shall be conclusively presumed to be the result of an accident and bona fide error, and shallsuch Excess, to the extent received by Bankreceived, shall be, at the option Borrower's option, returned to Borrower forthwith or credited as a payment of Bankprincipal, either but shall not be applied to reduce the principal amount payment of interest applied, it being the intent of the Obligations parties hereto not to enter into a usurious or returned to Borrowerother illegal relationship. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestany interest that has not otherwise accrued on the date of such acceleration, and no such interest will be collected by Bank. All monies paid Lender does not intend to Bank hereunder or under collect any of the Loan Documents shall be subject to any rebate of unearned interest as and to in the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return event of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rateacceleration. For the purpose of determining whether or not any Excess has been contracted for, charged or received by BankLender, all interest Interest at any time contracted for, charged or received from Borrower in connection with this Agreement any of the Loan Documents shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each every Loan Document (whether or not any provision of this Section is referred to therein).
Appears in 1 contract
Sources: Loan and Security Agreement (Advanced Environmental Recycling Technologies Inc)
Maximum Interest. Regardless of any provision contained in this Agreement or any of the Loan Documents, in no contingency or event whatsoever shall the aggregate of all amounts that are contracted for, charged or collected received by Agent and Lenders pursuant to the terms of this Agreement, the Note Agreement or any of the other Loan Documents, Documents and that are deemed interest under Applicable Law, Law exceed the Maximum Ratehighest rate permissible under any Applicable Law. No provision of agreements, conditions, provisions or stipulations contained in this Agreement or in any of the other Loan Documents or the exercise by Bank Agent of the right to accelerate the payment or the maturity of all or any portion of the Obligations, or the exercise of any right hereunder or under option whatsoever contained in any of the Loan Document Documents, or the prepayment by Borrower any or all Borrowers of any of the Obligations Obligations, or the occurrence of any contingency whatsoever, shall entitle Bank Agent or any Lender to charge or receive, or to require Borrower to payreceive in any event, interest or any amounts charges, amounts, premiums or fees deemed interest by Applicable Law (such amounts being interest, charges, amounts, premiums and fees referred to herein collectively as "Interest") in excess of the Maximum Rate and in no event shall Borrowers be obligated to pay Interest exceeding such Maximum Rate, and all provisions hereof agreements, conditions or stipulations, if any, which may in any Loan Document which may purport event or contingency whatsoever operate to require Borrower bind, obligate or compel Borrowers to pay Interest exceeding the Maximum Rate shall be without binding force or effect effect, at law or in equity, to the extent only of the excess of Interest over such Maximum Rate. Any If any Interest is charged or received in excess of the Maximum Rate ("Excess"), each Borrower acknowledges and stipulates that any such charge or receipt shall be conclusively presumed to be the result of an accident and bona fide error, and shallsuch Excess, to the extent received by Bankreceived, at the option of Bank, either shall be applied first to reduce the principal amount Obligations and the balance, if any, returned to Borrowers, it being the intent of the Obligations parties hereto not to enter into a usurious or returned to Borrowerotherwise illegal relationship. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestany Interest that has not otherwise accrued on the date of such acceleration, and no Agent and Lenders do not intend to collect any unearned Interest in the event of any such acceleration. Each Borrower recognizes that, with fluctuations in the rates of interest will be collected by Bankset forth in Section 2.1.1 of this Agreement, and the Maximum Rate, such an unintentional result could inadvertently occur. All monies paid to Bank Agent or any Lender hereunder or under any of the other Loan Documents Documents, whether at maturity or by prepayment, shall be subject to any rebate of unearned interest Interest as and to the extent required by Applicable Law. By the execution of this Agreement, each Borrower covenants that (i) the credit or return of any Excess shall constitute the acceptance by such Borrower of such Excess, and (ii) no Borrower shall not seek or pursue any other remedy, legal or equitable, against BankAgent or any Lender, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by BankAgent or any Lender, all interest Interest at any time contracted for, charged or received from Borrower any or all Borrowers in connection with this Agreement any of the Loan Documents shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower Borrowers, Agent and Bank Lenders shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section 2.10 shall be deemed to be incorporated into the Note and each every Loan Document (whether or not any provision of this Section is referred to therein). All such Loan Documents and communications relating to any Interest owed by any or all Borrowers and all figures set forth therein shall, for the sole purpose of computing the extent of Obligations, be automatically recomputed by Borrowers, and by any court considering the same, to give effect to the adjustments or credits required by this Section 2.10.
Appears in 1 contract
Sources: Loan and Security Agreement (Integrated Electrical Services Inc)
Maximum Interest. Regardless It is the intention of the parties hereto to conform strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the obligations of the Borrower to each Lender under this Agreement shall be subject to the limitation that payments of interest shall not be required to the extent that receipt thereof would be contrary to provisions of law applicable to such Lender limiting rates of interest which may be charged or collected by such Lender. Accordingly, if the transactions contemplated hereby would be usurious under applicable law (including the Federal and state laws of the United States of America, or of any provision contained other jurisdiction whose laws may be mandatorily applicable) with respect to a Lender, then, in that event, notwithstanding anything to the contrary in this Agreement or any Agreement, it is agreed as follows:
(a) the provisions of the Loan Documents, in no event this Section 4.11 shall govern and control; (b) the aggregate of all amounts consideration that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed constitutes interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants applicable law that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been is contracted for, charged or received by Bankunder this Agreement, all interest at or under any time contracted for, charged of the other aforesaid agreements or received from Borrower otherwise in connection with this Agreement by such Lender shall under no circumstances exceed the maximum amount of interest allowed by applicable law (such maximum lawful interest rate, if any, with respect to such Lender herein called the "Highest Lawful Rate"), and any excess shall be credited to the Borrower by such Lender (or, if such consideration shall have been paid in full, such excess promptly refunded to the Borrower); (c) all sums paid, or agreed to be paid, to such Lender for the use, forbearance and detention of the indebtedness of the Borrower to such Lender hereunder shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of such indebtedness until payment in full so that the Obligations. Borrower actual rate of interest is uniform throughout the full term thereof; and Bank shall(d) if at any time the interest provided pursuant to Section 3.2 together with any other fees payable pursuant to this Agreement and deemed interest under applicable law, exceeds that amount that would have accrued at the Highest Lawful Rate, the amount of interest and any such fees to accrue to such Lender pursuant to this Agreement shall be limited, notwithstanding anything to the contrary in this Agreement, to that amount which would have accrued at the maximum extent permitted under Applicable LawHighest Lawful Rate, (i) characterize but any non-principal payment subsequent reductions, as an expenseapplicable, fee or premium rather than as Interest shall not reduce the interest to accrue to such Lender pursuant to this Agreement below the Highest Lawful Rate until the total amount of interest accrued pursuant to this Agreement and (ii) exclude voluntary prepayments and such fees deemed to be interest equals the effects thereof. The provisions amount of interest that would have accrued to such Lender if a varying rate per annum equal to the interest provided pursuant to Section 3.2 had at all times been in effect, plus the amount of fees that would have been received but for the effect of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)4.11.
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Maximum Interest. Regardless of any provision contained in this Agreement or any of the Loan Credit Documents, in no contingency or event whatsoever shall the aggregate of all amounts that are contracted for, charged or collected received by Agent or any Lender pursuant to the terms of this Agreement, the Note Agreement or any of the Loan Documents, other Credit Documents and that are deemed interest under Applicable Law, Law exceed the Maximum Ratehighest rate permissible under any Applicable Law. No provision of agreements, conditions, provisions or stipulations contained in this Agreement or in any of the Loan other Credit Documents or the exercise by Bank Agent of the right to accelerate the payment or the maturity of all or any portion of the Obligations, or the exercise of any right hereunder or under option whatsoever contained in any Loan Document of the Credit Documents, or the prepayment by Borrower Borrowers of any of the Obligations Obligations, or the occurrence of any contingency whatsoever, shall entitle Bank Agent or any Lender to charge or receive, or to require Borrower to payreceive in any event, interest or any amounts charges, amounts, premiums or fees deemed interest by Applicable Law (such amounts being interest, charges, amounts, premiums and fees referred to herein collectively as "“Interest"”) in excess of the Maximum Rate and in no event shall Borrowers be obligated to pay Interest exceeding such Maximum Rate, and all provisions hereof agreements, conditions or stipulations, if any, which may in any Loan Document which may purport event or contingency whatsoever operate to require Borrower bind, obligate or compel Borrowers to pay Interest exceeding the Maximum Rate shall be without binding force or effect effect, at law or in equity, to the extent only of the excess of Interest over such Maximum Rate. Any If any Interest is charged or received in excess of the Maximum Rate ("“Excess"”), each Borrower acknowledges and stipulates that any such charge or receipt shall be conclusively presumed to be the result of an accident and bona fide error, and shallsuch Excess, to the extent received by Bankreceived, at the option of Bank, either shall be applied first to reduce the principal amount Obligations and the balance, if any, returned to Borrowers, it being the intent of the Obligations parties hereto not to enter into a usurious or returned to Borrowerotherwise illegal relationship. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestany Interest that has not otherwise accrued on the date of such acceleration, and no neither Agent nor any Lenders intend to collect any unearned Interest in the event of any such acceleration. Each Borrower recognizes that, with fluctuations in the rates of interest will be collected by Bankset forth in Section 3.1.1 of this Agreement, and the Maximum Rate, such an unintentional result could inadvertently occur. All monies paid to Bank Agent or any Lender hereunder or under any of the Loan Documents other Credit Documents, whether at maturity or by prepayment, shall be subject to any rebate of unearned interest Interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants Borrowers covenant that (i) the credit or return of any Excess shall constitute the acceptance by Borrower Borrowers of such Excess, and (ii) no Borrower shall not seek or pursue any other remedy, legal or equitable, against BankAgent or any Lender, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged or received by BankAgent or any Lender, all interest Interest at any time contracted for, charged or received from Borrower Borrowers in connection with this Agreement any of the Credit Documents shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower Borrowers, Agent and Bank Lenders shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section 3.10 shall be deemed to be incorporated into the Note and each Loan every Credit Document (whether or not any provision of this Section is referred to therein). All such Credit Documents and communications relating to any Interest owed by Borrowers and all figures set forth therein shall, for the sole purpose of computing the extent of Obligations, be automatically recomputed by Borrowers, and by any court considering the same, to give effect to the adjustments or credits required by this Section 3.10.
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Maximum Interest. Regardless The provisions of this Mortgage and of all agreements between Mortgagor and Mortgagee, whether now existing or hereafter arising and whether written or oral, are hereby expressly limited so that in no contingency or event whatsoever, whether by reason of demand or acceleration of the maturity of the Note or otherwise, shall the amount paid; or agreed to be paid ("Interest"), to Mortgagee for the use, forbearance or retention of the money loaned under the Note exceed the maximum amount permissible under applicable law. If, from any circumstance whatsoever, performance or fulfillment of any provision contained in this Agreement hereof or of any agreement between Mortgagor and Mortgagee shall, at the time performance or fulfillment of the Loan Documents, in no event such provision shall the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed interest under Applicable Lawbe due, exceed the Maximum Rate. No provision limit for Interest prescribed by law or otherwise transcend the limit of this Agreement validity prescribed by applicable law, then ipso facto the obligation to be performed or in fulfilled shall be reduced to such limit and if, from any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency circumstance whatsoever, Mortgagee shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts ever receive anything of value deemed interest Interest by Applicable Law (such amounts being referred to herein collectively as "Interest") applicable law in excess of the Maximum Ratemaximum lawful amount, and all provisions hereof or in an amount equal to any Loan Document which may purport to require Borrower to pay excessive Interest exceeding the Maximum Rate shall be without binding force or effect applied to the extent only reduction of the excess principal balance owing under the Note in the inverse order of Interest over such Maximum Rate. Any Interest charged its maturity (whether or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, not then due) or at the option of Bank, either Mortgagee be applied paid over to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interestMortgagor, and no such interest will be collected by Banknot to the payment of Interest. All monies paid Interest (including any amounts or payments judicially or otherwise under law deemed to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants that (iInterest) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been contracted for, charged charged, taken, reserved, paid or received by Bank, all interest at any time contracted for, charged or received from Borrower in connection with this Agreement agreed to be paid to Mortgagee shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the Obligations. Borrower and Bank shall, to the maximum extent permitted under Applicable Law, (i) characterize any non-principal payment as an expense, fee or premium rather than as Interest and (ii) exclude voluntary prepayments and the effects thereof. The provisions of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein).applicable law,
Appears in 1 contract
Sources: Mortgage and Security Agreement (Acadia Realty Trust)
Maximum Interest. Regardless It is expressly stipulated and agreed to be the intent of any provision contained in this Agreement Borrower and Bank at all times to comply strictly with the applicable Texas law governing the maximum rate or amount of interest payable on the indebtedness evidenced by the Note or any Loan Document, and the Related Indebtedness (or applicable United States federal law to the extent that it permits Bank to contract for, charge, take, reserve or receive a greater amount of interest than under Texas law). If the applicable law is ever judicially interpreted so as to render usurious any amount (a) contracted for, charged, taken, reserved or received pursuant to any Note, any of the other Loan Documents or any other communication or writing by or between Borrower and Bank related to the transaction or transactions that are the subject matter of the Loan Documents, in no event shall the aggregate of all amounts that are (b) contracted for, charged charged, taken, reserved or collected pursuant to the terms received by reason of this Agreement, the Note or any Bank’s exercise of the Loan Documents, and that are deemed interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, Note and/or any and no such interest will be collected all indebtedness paid or payable by Bank. All monies paid Borrower to Bank hereunder or under any of the Loan Documents shall be subject pursuant to any rebate of unearned interest Loan Document other than such Note (such other indebtedness being referred to in this Section as and to the extent required “Related Indebtedness”), or (c) Borrower will have paid or Bank will have received by Applicable Law. By the execution of this Agreement, Borrower covenants that (i) the credit or return reason of any Excess shall constitute the acceptance prepayment by Borrower of such Excessany Note and/or the Related Indebtedness, then it is Borrower’s and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest ’s express intent that all amounts charged in excess of the Maximum Rate. For Lawful Rate shall be automatically canceled, ab initio, and all amounts in excess of the purpose Maximum Lawful Rate theretofore collected by Bank shall be credited on the principal balance of determining whether such Note and/or the Related Indebtedness (or, if such Note and the Related Indebtedness have been or not would thereby be paid in full, refunded to Borrower), and the provisions of such Note and the other Loan Documents shall immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of any Excess new document, so as to comply with the applicable law, but so as to permit the recovery of the fullest amount otherwise called for hereunder and thereunder; provided, however, if such Note has been paid in full before the end of the stated term of such Note, then Borrower and Bank agree that Bank shall, with reasonable promptness after Bank discovers or is advised by Borrower that interest was received in an amount in excess of the Maximum Lawful Rate, either refund such excess interest to Borrower and/or credit such excess interest against such Note and/or any Related Indebtedness then owing by Borrower to Bank. Borrower hereby agrees that as a condition precedent to any claim or counterclaim (in which event such proceeding shall be abated for such time period) seeking usury penalties against Bank, Borrower will provide written notice to Bank, advising Bank in reasonable detail of the nature and amount of the violation, and Bank shall have sixty (60) days after receipt of such notice in which to correct such usury violation, if any, by either refunding such excess interest to Borrower or crediting such excess interest against such Note to which the alleged violation relates and/or the Related Indebtedness then owing by Borrower to Bank. All sums contracted for, charged charged, taken, reserved or received by BankBank for the use, all interest at forbearance or detention of any time contracted for, charged or received from Borrower in connection with this Agreement debt evidenced by such Note and/or the Related Indebtedness shall, to the extent permitted by Applicable Lawapplicable law, be amortizedamortized or spread, proratedusing the actuarial method, allocated and spread in equal parts throughout the full stated term of such Note and/or the ObligationsRelated Indebtedness (including any and all renewal and extension periods) until payment in full so that the rate or amount of interest on account of such Note and/or the Related Indebtedness does not exceed the Maximum Lawful Rate from time to time in effect and applicable to such Note and/or the Related Indebtedness for so long as debt is outstanding. Borrower In no event shall the provisions of Chapter 346 of the Texas Finance Code which regulates certain revolving credit loan accounts and Bank shall, revolving triparty accounts apply to such Note and/or any of the Related Indebtedness. Notwithstanding anything to the maximum extent permitted under Applicable LawLoan Agreement contrary contained herein or in any of the other Loan Documents, (i) characterize it is not the intention of Bank to accelerate the maturity of any non-principal payment as an expense, fee interest that has not accrued at the time of such acceleration or premium rather than as Interest and (ii) exclude voluntary prepayments and to collect unearned interest at the effects thereof. The provisions time of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)such acceleration.
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Maximum Interest. Regardless It is the intention of the parties hereto to conform strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the obligations of each Borrower to each Lender and the Issuer under this Agreement shall be subject to the limitation that payments of interest shall not be required to the extent that receipt thereof would be contrary to provisions of law applicable to such Lender or the Issuer limiting rates of interest which may be charged or collected by such Lender or the Issuer. Accordingly, if the transactions contemplated hereby would be usurious under applicable law (including the Federal and state laws of the United States of America, or of any provision contained other jurisdiction whose laws may be mandatorily applicable) with respect to a Lender or the Issuer then, in that event, notwithstanding anything to the contrary in this Agreement or any Agreement, it is agreed as follows: (i) the provisions of the Loan Documents, in no event this Section 10.6 shall govern and control; (ii) the aggregate of all amounts that are contracted for, charged or collected pursuant to the terms of this Agreement, the Note or any of the Loan Documents, and that are deemed consideration which constitutes interest under Applicable Law, exceed the Maximum Rate. No provision of this Agreement or in any of the Loan Documents or the exercise by Bank of any right hereunder or under any Loan Document or the prepayment by Borrower of any of the Obligations or the occurrence of any contingency whatsoever, shall entitle Bank to charge or receive, or to require Borrower to pay, interest or any amounts deemed interest by Applicable Law (such amounts being referred to herein collectively as "Interest") in excess of the Maximum Rate, and all provisions hereof or in any Loan Document which may purport to require Borrower to pay Interest exceeding the Maximum Rate shall be without binding force or effect to the extent only of the excess of Interest over such Maximum Rate. Any Interest charged or received in excess of the Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an accident and bona fide error, and shall, to the extent received by Bank, at the option of Bank, either be applied to reduce the principal amount of the Obligations or returned to Borrower. The right to accelerate the maturity of any of the Obligations does not include the right to accelerate unaccrued interest, and no such interest will be collected by Bank. All monies paid to Bank hereunder or under any of the Loan Documents shall be subject to any rebate of unearned interest as and to the extent required by Applicable Law. By the execution of this Agreement, Borrower covenants applicable law that (i) the credit or return of any Excess shall constitute the acceptance by Borrower of such Excess, and (ii) Borrower shall not seek or pursue any other remedy, legal or equitable, against Bank, based in whole or in part upon contracting for, charging or receiving any Interest in excess of the Maximum Rate. For the purpose of determining whether or not any Excess has been is contracted for, charged or received by Bankunder this Agreement, all interest at or under any time contracted for, charged of the other aforesaid agreements or received from Borrower otherwise in connection with this Agreement by such Lender or the Issuer shall under no circumstances exceed the maximum amount of interest allowed by applicable law (such maximum lawful interest rate, if any, with respect to such Lender or the Issuer herein called the “Highest Lawful Rate”), and any excess shall be credited to such Borrower by such Lender or the Issuer (or, if such consideration shall have been paid in full, such excess promptly refunded to such Borrower); (iii) all sums paid, or agreed to be paid, to such Lender or the Issuer for the use, forbearance and detention of the indebtedness of such Borrower to such Lender or the Issuer hereunder shall, to the extent permitted by Applicable Lawapplicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of such indebtedness until payment in full so that the Obligations. Borrower actual rate of interest is uniform throughout the full term thereof; and Bank shall(iv) if at any time the interest provided pursuant to Article II together with any other fees payable pursuant to this Agreement and deemed interest under applicable law, exceeds that amount which would have accrued at the Highest Lawful Rate, the amount of interest and any such fees to accrue to such Lender or the Issuer pursuant to this Agreement shall be limited, notwithstanding anything to the maximum extent permitted under Applicable Lawcontrary in this Agreement to that amount which would have accrued at the Highest Lawful Rate, (i) characterize but any non-principal payment subsequent reductions, as an expenseapplicable, fee shall not reduce the interest to accrue to such Lender or premium rather than as Interest the Issuer pursuant to this Agreement below the Highest Lawful Rate until the total amount of interest accrued pursuant to this Agreement and (ii) exclude voluntary prepayments and such fees deemed to be interest equals the effects thereof. The provisions amount of interest which would have accrued to such Lender or the Issuer if a varying rate per annum equal to the interest provided pursuant to Article II had at all times been in effect, plus the amount of fees which would have been received but for the effect of this Section shall be deemed to be incorporated into the Note and each Loan Document (whether or not any provision of this Section is referred to therein)10.6.
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