Common use of Default Payment Clause in Contracts

Default Payment. If (a) any Registration Statement or Prospectus (or supplement thereto) is not filed within the time periods specified herein, (b) any Registration Statement is not declared effective by the SEC or does not otherwise become effective on or prior to its required effectiveness date, or (c) after it has become effective, such Registration Statement or related Prospectus ceases for any reason to be effective and available to the Notice Holders as to all Registrable Securities to which it is required to cover ((in each case, except as specifically permitted herein) (each, a “Registration Default”)), then the Company shall make a special payment (the “Default Payments”) to Notice Holders of Preferred Stock then outstanding in an amount equal to 1.50% per annum of the liquidation preference of each share of Preferred Stock, payable in cash. Special payments shall accrue from the date of the applicable Registration Default until such Registration Default has been cured, and shall be payable quarterly in arrears on each January 15, April 15, July 15 and October 15 following such Registration Default to the record holder of the Preferred Stock on the date that is 15 days prior to such payment date, until paid in full. Special payments payable in respect of any Registration Default shall be computed on the basis of a 360-day year consisting of twelve (12) thirty (30)-day months. Special payments shall be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults may have occurred and be continuing. Notwithstanding anything in this Article VII to the contrary, (i) in no event shall a Registration Default be deemed to have occurred and be continuing during any Blackout Period permitted hereunder and (ii) the Company shall not be liable for special payments under this Agreement as to any Registrable Securities which are not permitted by the SEC to be included in a Registration Statement. The Company shall have no liability to any Holder of Preferred Stock for monetary damages with respect to any Registration Default with respect to Registrable Preferred Securities other than the Default Payments provided for in this Article VII (it being understood that nothing in this sentence affects the remedies in respect of any Registration Default with respect to Registrable Common Securities).

Default Payment. If (a) any Registration Statement or Prospectus (or supplement thereto) is not filed within Following the time periods specified hereinoccurrence and during the continuance of an Event of Default, (b) any Registration Statement is not declared effective the Agent may demand repayment in full of all obligations and liabilities owing by the SEC or does not otherwise become effective on or prior to its required effectiveness date, or (c) after it has become effective, such Registration Statement or related Prospectus ceases for any reason to be effective and available Companies to the Notice Holders as Holder under this Note, the Security Agreement and/or any other Ancillary Agreement and/or may elect, in addition to all Registrable Securities rights and remedies of the Agent under the Security Agreement and the other Ancillary Agreements and all obligations and liabilities of each Company under the Security Agreement and the other Ancillary Agreements, to which it is required require the Companies, jointly and severally, to cover make a Default Payment ((in each case, except as specifically permitted herein) (each, a “Registration DefaultDefault Payment”)). The Default Payment shall be one hundred twenty percent (120%) of the outstanding principal amount of this Note, plus accrued but unpaid interest, all other fees then remaining unpaid, and all other amounts payable hereunder. The Default Payment shall be applied first to any fees due and payable to the Holder pursuant to the Notes and/or the Ancillary Agreements, then to accrued and unpaid interest due on the Company shall make a special payment (Notes, the “Default Payments”) Security Agreement and then to Notice Holders of Preferred Stock then the outstanding in an amount equal to 1.50% per annum principal balance of the liquidation preference of each share of Preferred Stock, payable in cashNotes. Special payments shall accrue from the date of the applicable Registration The Default until such Registration Default has been cured, and Payment shall be due and payable quarterly in arrears on each January 15, April 15, July 15 and October 15 following such Registration Default to the record holder of the Preferred Stock immediately on the date that is 15 days prior the Agent has demanded payment of the Default Payment pursuant to such payment datethis Section 4.3. Notwithstanding anything to the contrary set forth herein, until paid (a) if the Holder waives in full. Special payments payable in respect writing any Event of any Registration Default Default, the Companies shall be computed on relieved of their obligation to make the basis of a 360-day year consisting of twelve (12) thirty (30)-day months. Special payments shall be payable only Default Payment with respect to a single Registration such Event of Default at any given time, notwithstanding the fact that multiple Registration Defaults may have occurred and be continuing. Notwithstanding anything in this Article VII to the contrary, (i) in no event shall a Registration Default be deemed to have occurred and be continuing during any Blackout Period permitted hereunder and (iib) no Default Payment shall be due and payable following the occurrence of an Event of Default under Section 20(m) of the Security Agreement if such Event of Default occurred solely as a result of the commencement of a civil proceeding against any Company, any of its Subsidiaries or any executive office of any Company or any of its Subsidiaries unless a judgment, writ or warrant of attachment or similar process shall not be liable for special payments under this Agreement as to any Registrable Securities which are not permitted by the SEC to be included in a Registration Statement. The Company shall have no liability to any Holder of Preferred Stock for monetary damages entered or filed against such Company, such Subsidiary or such officer with respect to any Registration Default with respect to Registrable Preferred Securities other than the Default Payments provided for in this Article VII (it being understood that nothing in this sentence affects the remedies in respect of any Registration Default with respect to Registrable Common Securities)such proceeding.

Default Payment. If (a) any Registration Statement or Prospectus (or supplement thereto) is not filed within the time periods specified herein, (b) any Registration Statement is not declared effective by the SEC or does not otherwise become effective on or prior to its required effectiveness date, (c) the Company fails to file with the SEC a request for acceleration in accordance with Rule 461 under the Securities Act within five (5) Business Days of the date on which the Company is notified (orally or in writing, whichever is earlier) by the SEC that a Registration Statement will not be reviewed or is not subject to further review, or (cd) after it has become been declared effective, such Registration Statement or related Prospectus ceases for any reason to be effective and available to the Notice Holders as to all Registrable Securities to which it is required to cover (at any time (in each case, except as specifically permitted herein) (each, a “Registration Default”)), then the Company shall make a special payment (the “Default Payments”) to Notice Holders of Preferred Stock then outstanding in an amount equal to 1.501.00% per annum of the accrued liquidation preference of each share of Preferred Stock that is convertible into a Registrable Security, payable, at the option of the Company, either in cash or by increasing the liquidation preference of each share of Preferred Stock, payable in cash. Special payments shall accrue from the date of the applicable Registration Default until such Registration Default has been cured, and shall be payable quarterly in arrears on each January 151, April 151, July 15 1 and October 15 1 following such Registration Default to the record holder of the Preferred Stock applicable security on the date that is 15 days prior to such payment date, until paid in full. Special payments payable in respect of any Registration Default shall be computed on the basis of a 360365-day year consisting and the actual number of twelve (12) thirty (30)-day monthsdays elapsed. Special payments shall be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults may have occurred and be continuing. Notwithstanding anything in this Article VII Section 8 to the contrary, (i) in no event shall a Registration Default be deemed to have occurred and be continuing during any Blackout Suspension Period permitted hereunder and (ii) the Company shall not be liable for special payments under this Agreement as to any Registrable Securities which are not permitted by the SEC to be included in a Registration Statement. The Company shall have no liability to any Holder of Preferred Stock for monetary damages with respect to any Registration Default with respect to Registrable Preferred Securities other than the Default Payments provided for in this Article VII (it being understood that nothing in this sentence affects the remedies in respect of any Registration Default with respect to Registrable Common Securities)hereunder.

Default Payment. If (a) any Registration Statement or Prospectus (or supplement thereto) is not filed within the time periods specified herein, (b) any Registration Statement is not declared effective by the SEC or does not otherwise become effective on or prior to its required effectiveness date, or (c) after it has become effective, such Registration Statement or related Prospectus ceases for any reason to be effective and available to the Notice Holders as to all Registrable Securities to which it is required to cover ((in each case, except as specifically permitted herein) (each, a “Registration Default”)), then the Company shall make a special payment (the “Default Payments”) to Notice Holders of Convertible Preferred Stock then outstanding in an amount equal to 1.50% per annum of the liquidation preference of each share of Convertible Preferred Stock, payable in cash. Special payments shall accrue from the date of the applicable Registration Default until such Registration Default has been cured, and shall be payable quarterly in arrears on each January 15, April 15, July 15 and October 15 following such Registration Default to the record holder of the Convertible Preferred Stock on the date that is 15 days prior to such payment date, until paid in full. Special payments payable in respect of any Registration Default shall be computed on the basis of a 360-day year consisting of twelve (12) thirty (30)-day 12 30-day months. Special payments shall be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults may have occurred and be continuing. Notwithstanding anything in this Article VII to the contrary, (i) in no event shall a Registration Default be deemed to have occurred and be continuing during any Blackout Period permitted hereunder and (ii) the Company shall not be liable for special payments under this Agreement as to any Registrable Securities which are not permitted by the SEC to be included in a Registration Statement. The Company shall have no liability to any Holder of Convertible Preferred Stock for monetary damages with respect to any Registration Default with respect to Registrable Preferred Securities other than the Default Payments provided for in this Article VII (it being understood that nothing in this sentence affects the remedies in respect of any Registration Default with respect to Registrable Common Securities).

Default Payment. If (a) any Registration Statement or Prospectus (or supplement thereto) is not filed within Following the time periods specified hereinoccurrence and during the continuance of an Event of Default, (b) any Registration Statement is not declared effective the Agent may demand repayment in full of all obligations and liabilities owing by the SEC or does not otherwise become effective on or prior to its required effectiveness date, or (c) after it has become effective, such Registration Statement or related Prospectus ceases for any reason to be effective and available Companies to the Notice Holders as Holder under this Note, the Security Agreement and/or any other Ancillary Agreement and/or may elect, in addition to all Registrable Securities rights and remedies of the Agent under the Security Agreement and the other Ancillary Agreements and all obligations and liabilities of each Company under the Security Agreement and the other Ancillary Agreements, to which it is required require the Companies, jointly and severally, to cover make a Default Payment ((in each case, except as specifically permitted herein) (each, a “Registration DefaultDefault Payment”)), then the Company . The Default Payment shall make a special payment be one hundred twenty percent (the “Default Payments”120%) to Notice Holders of Preferred Stock then outstanding in an amount equal to 1.50% per annum of the liquidation preference outstanding principal amount of each share of Preferred Stockthis Note, payable in cash. Special payments shall accrue from the date of the applicable Registration Default until such Registration Default has been curedplus accrued but unpaid interest, all other fees then remaining unpaid, and all other amounts payable hereunder, under the Security Agreement or any other Ancillary Agreement. The Default Payment shall be due and payable quarterly in arrears on each January 15, April 15, July 15 and October 15 following such Registration Default to the record holder of the Preferred Stock immediately on the date that is 15 days prior the Agent has demanded payment of the Default Payment pursuant to such payment datethis Section 2.3. Notwithstanding anything to the contrary set forth herein, until paid (a) if the Holder waives in full. Special payments payable in respect writing any Event of any Registration Default Default, the Companies shall be computed on relieved of their obligation to make the basis of a 360-day year consisting of twelve (12) thirty (30)-day months. Special payments shall be payable only Default Payment with respect to a single Registration such Event of Default at any given time, notwithstanding the fact that multiple Registration Defaults may have occurred and be continuing. Notwithstanding anything in this Article VII to the contrary, (i) in no event shall a Registration Default be deemed to have occurred and be continuing during any Blackout Period permitted hereunder and (iib) no Default Payment shall be due and payable following the occurrence of an Event of Default under Section 20(m) of the Security Agreement if such Event of Default occurred solely as a result of the commencement of a civil proceeding against any Company, any of its Subsidiaries or any executive office of any Company or any of its Subsidiaries unless a judgment, writ or warrant of attachment or similar process shall not be liable for special payments under this Agreement as to any Registrable Securities which are not permitted by the SEC to be included in a Registration Statement. The Company shall have no liability to any Holder of Preferred Stock for monetary damages entered or filed against such Company, such Subsidiary or such officer with respect to any Registration Default with respect to Registrable Preferred Securities other than the Default Payments provided for in this Article VII (it being understood that nothing in this sentence affects the remedies in respect of any Registration Default with respect to Registrable Common Securities)such proceeding.

Default Payment. If Following the occurrence and during the continuance of an Event of Default, the Holder, at its option, may elect, in addition to all rights and remedies of the Holder under the Security Agreement and the Ancillary Agreements and all obligations of each Company under the Security Agreement and the Ancillary Agreements, to require the Companies, jointly and severally, to make a Default Payment (a“Default Payment”). The Default Payment shall be one hundred twenty percent (120%) of the outstanding principal amount of the Note, plus accrued but unpaid interest, all other fees then remaining unpaid, and all other amounts payable hereunder. The Default Payment shall be applied first to any Registration Statement or Prospectus (or supplement thereto) is not filed within the time periods specified herein, (b) any Registration Statement is not declared effective by the SEC or does not otherwise become effective on or prior to its required effectiveness date, or (c) after it has become effective, such Registration Statement or related Prospectus ceases for any reason to be effective fees due and available payable to the Notice Holders as Holder pursuant to all Registrable Securities to which it is required to cover ((in each case, except as specifically permitted herein) (each, a “Registration Default”))the Notes and/or the Ancillary Agreements, then to accrued and unpaid interest due on the Company shall make a special payment (Notes, the “Default Payments”) Security Agreement and then to Notice Holders of Preferred Stock then the outstanding in an amount equal to 1.50% per annum principal balance of the liquidation preference of each share of Preferred Stock, payable in cashNotes. Special payments shall accrue from the date of the applicable Registration The Default until such Registration Default has been cured, and Payment shall be due and payable quarterly in arrears on each January 15, April 15, July 15 and October 15 following such Registration Default to the record holder of the Preferred Stock immediately on the date that is 15 days prior the Holder has demanded payment of the Default Payment pursuant to such payment datethis Section 4.3. Notwithstanding anything to the contrary set forth herein, until paid (a) if the Holder waives in full. Special payments payable in respect writing any Event of any Registration Default Default, the Companies shall be computed on relieved of their obligation to make the basis of a 360-day year consisting of twelve (12) thirty (30)-day months. Special payments shall be payable only Default Payment with respect to a single Registration such Event of Default at any given time, notwithstanding the fact that multiple Registration Defaults may have occurred and be continuing. Notwithstanding anything in this Article VII to the contrary, (i) in no event shall a Registration Default be deemed to have occurred and be continuing during any Blackout Period permitted hereunder and (iib) no Default Payment shall be due and payable following the occurrence of an Event of Default under Section 19(m) of the Security Agreement if such Event of Default occurred solely as a result of the commencement of a civil proceeding against any Company, any of its Subsidiaries or any executive office of any Company or any of its Subsidiaries unless a judgment, writ or warrant of attachment or similar process shall not be liable for special payments under this Agreement as to any Registrable Securities which are not permitted by the SEC to be included in a Registration Statement. The Company shall have no liability to any Holder of Preferred Stock for monetary damages entered or filed against such Company, such Subsidiary or such officer with respect to any Registration Default with respect to Registrable Preferred Securities other than the Default Payments provided for in this Article VII (it being understood that nothing in this sentence affects the remedies in respect of any Registration Default with respect to Registrable Common Securities)such proceeding.

Default Payment. If (a) any Registration Statement or Prospectus (or supplement thereto) is not filed within the time periods specified herein, (b) any Registration Statement is not declared effective by the SEC or does not otherwise become effective on or prior to its required effectiveness date, (c) the Company fails to file with the SEC a request for acceleration in accordance with Rule 461 under the Securities Act within ten Business Days of the date on which the Company is notified (orally or in writing, whichever is earlier) by the SEC that a Registration Statement will not be reviewed or is not subject to further review, or (cd) after it has become been declared effective, such Registration Statement or related Prospectus prospectus ceases for any reason to be effective and available to the Notice Holders as to all Registrable Securities to which it is required to cover for more than an aggregate of 10 Business Days ((in each case, except as specifically permitted herein) (each, a “Registration Default”)), then the Company shall make a special payment (the “Default Payments”) to Notice Holders of Preferred Stock then outstanding in an amount equal to 1.50% per annum of the liquidation preference of each share of Convertible Preferred Stock (and in the case of Registrable Securities that are Common Stock following conversion of the Convertible Preferred Stock, such amount shall be equal to 1.50% per annum of the liquidation preference of the Convertible Preferred Stock that was converted into such Common Stock), payable in cash. Special payments shall accrue from the date of the applicable Registration Default until such Registration Default has been cured, and shall be payable quarterly in arrears on each January 15March 31, April 15June 30, July 15 September 30 and October 15 December 31 following such Registration Default to the record holder of the Convertible Preferred Stock or Common Stock, as applicable, on the date that is 15 days prior to such payment date, until paid in full. Special payments payable in respect of any Registration Default shall be computed on the basis of a 360365-day year consisting and the actual number of twelve (12) thirty (30)-day monthsdays elapsed. Special payments shall be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults may have occurred and be continuing. Notwithstanding anything in this Article VII to the contrary, : (i) in no event shall a Registration Default be deemed to have occurred and be continuing during any Blackout Period permitted hereunder and (ii) the Company shall not be liable for special payments under this Agreement as to any Registrable Securities which which: (A) are not permitted by the SEC to be included in a Registration Statement. The Statement or (B) may be sold by the Holders pursuant to Rule 144 without compliance with volume limitations or other restrictions as determined by counsel to the Company shall have no liability pursuant to any Holder of Preferred Stock for monetary damages with respect a written opinion letter to any Registration Default with respect such effect, addressed and acceptable to Registrable Preferred Securities other than the Default Payments provided for in this Article VII (it being understood that nothing in this sentence affects Company’s transfer agent and the remedies in respect of any Registration Default with respect to Registrable Common Securities)affected Holders.

Default Payment. If (a) any Registration Statement or Prospectus (or supplement thereto) is not filed within the time periods specified herein, (b) any Registration Statement is not declared effective by the SEC or does not otherwise become effective on or prior to its required effectiveness date, (c) the Company fails to file with the SEC a request for acceleration in accordance with Rule 461 under the Securities Act within ten Business Days of the date on which the Company is notified (orally or in writing, whichever is earlier) by the SEC that a Registration Statement will not be reviewed or is not subject to further review, or (cd) after it has become been declared effective, such Registration Statement or related Prospectus prospectus ceases for any reason to be effective and available to the Notice Holders as to all Registrable Securities to which it is required to cover for more than an aggregate of 10 Business Days ((in each case, except as specifically permitted herein) (each, a “Registration Default”)), then the Company shall make a special payment (the “Default Payments”) to Notice Holders of Preferred Stock then outstanding in an amount equal to 1.50% per annum of the liquidation preference of each share of Convertible Preferred Stock (and in the case of Registrable Securities that are Common Stock following conversion of the Convertible Preferred Stock, such amount shall be equal to 1.50% per annum of the liquidation preference of the Convertible Preferred Stock that was converted into such Common Stock), payable in cash. Special payments shall accrue from the date of the applicable Registration Default until such Registration Default has been cured, and shall be payable quarterly in arrears on each January 15March 31, April 15June 30, July 15 September 30 and October 15 December 31 following such Registration Default to the record holder of the Convertible Preferred Stock or Common Stock, as applicable, on the date that is 15 days prior to such payment date, until paid in full. Special payments payable in respect of any Registration Default shall be computed on the basis of a 360365-day year consisting and the actual number of twelve (12) thirty (30)-day monthsdays elapsed. Special payments shall be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults may have occurred and be continuing. Notwithstanding anything in this Article VII to the contrary, : (i) in no event shall a Registration Default be deemed to have occurred and be continuing during any Blackout Period permitted hereunder and (ii) the Company shall not be liable for special payments under this Agreement as to any Registrable Securities which which: (A) are not permitted by the SEC to be included in a Registration Statement. The Statement or (B) may be sold by the Holders pursuant to Rule 144 without compliance with volume limitations or other restrictions as determined by counsel to the Company shall have no liability pursuant to any Holder of Preferred Stock for monetary damages with respect a written opinion letter to any Registration Default with respect such effect, addressed and acceptable to Registrable Preferred Securities other than the Default Payments provided for in this Article VII (it being understood that nothing in this sentence affects Company’s transfer agent and the remedies in respect of any Registration Default with respect to Registrable Common Securities)affected Holders.

Default Payment. If (a) any Registration Statement or Prospectus (or supplement thereto) is not filed within the time periods specified herein, (b) any Registration Statement is not declared effective by the SEC or does not otherwise become effective on or prior to its required effectiveness date, or (c) after it has become effective, such Registration Statement or related Prospectus ceases for any reason to be effective and available to the Notice Holders as to all Registrable Securities to which it is required to cover ((in each case, except as specifically permitted herein) (each, a “Registration Default”)), then the Company shall make a special payment (the “Default Payments”) to Notice Holders of Convertible Preferred Stock then outstanding in an amount equal to 1.50% per annum of the liquidation preference of each share of Convertible Preferred Stock, payable in cash. Special payments shall accrue from the date of the applicable Registration Default until such Registration Default has been cured, and shall be payable quarterly in arrears on each January 15, April 15, July ACTIVE 248784068v.19 15 and October 15 following such Registration Default to the record holder of the Convertible Preferred Stock on the date that is 15 days prior to such payment date, until paid in full. Special payments payable in respect of any Registration Default shall be computed on the basis of a 360-day year consisting of twelve (12) thirty (30)-day 12 30-day months. Special payments shall be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults may have occurred and be continuing. Notwithstanding anything in this Article VII to the contrary, (i) in no event shall a Registration Default be deemed to have occurred and be continuing during any Blackout Period permitted hereunder and (ii) the Company shall not be liable for special payments under this Agreement as to any Registrable Securities which are not permitted by the SEC to be included in a Registration Statement. The Company shall have no liability to any Holder of Convertible Preferred Stock for monetary damages with respect to any Registration Default with respect to Registrable Preferred Securities other than the Default Payments provided for in this Article VII (it being understood that nothing in this sentence affects the remedies in respect of any Registration Default with respect to Registrable Common Securities).

Default Payment. If Following the occurrence and during the continuance of an Event of Default, the Holder, at its option, may elect, in addition to all rights and remedies of the Holder under the Security Agreement and the other Ancillary Agreements and all obligations and liabilities of each Company under the Security Agreement and the other Ancillary Agreements, to require the Companies, jointly and severally, to make a Default Payment (a) “Default Payment”). The Default Payment shall be 120% of the outstanding principal amount of the Note, plus accrued but unpaid interest, all other fees then remaining unpaid, and all other amounts payable hereunder, under the Security Agreement or any Registration Statement or Prospectus (or supplement thereto) is not filed within the time periods specified herein, (b) other Ancillary Agreement. The Default Payment shall be applied first to any Registration Statement is not declared effective by the SEC or does not otherwise become effective on or prior to its required effectiveness date, or (c) after it has become effective, such Registration Statement or related Prospectus ceases for any reason to be effective fees due and available payable to the Notice Holders as Holder pursuant to all Registrable Securities to which it is required to cover ((in each casethe Note, except as specifically permitted herein) (each, a “Registration Default”))the Security Agreement and/or the Ancillary Agreements, then to accrued and unpaid interest due on the Company shall make a special payment (Notes and then to the “Default Payments”) to Notice Holders of Preferred Stock then outstanding in an amount equal to 1.50% per annum principal balance of the liquidation preference of each share of Preferred Stock, payable in cashNote. Special payments shall accrue from the date of the applicable Registration The Default until such Registration Default has been cured, and Payment shall be due and payable quarterly in arrears on each January 15, April 15, July 15 and October 15 following such Registration Default to the record holder of the Preferred Stock immediately on the date that is 15 days prior the Holder has demanded payment of the Default Payment pursuant to such payment datethis Section 2.3. Notwithstanding anything to the contrary set forth herein, until paid (a) if the Holder waives in full. Special payments payable in respect writing any Event of any Registration Default Default, the Companies shall be computed on relieved of their obligation to make the basis of a 360-day year consisting of twelve (12) thirty (30)-day months. Special payments shall be payable only Default Payment with respect to a single Registration such Event of Default at any given time, notwithstanding the fact that multiple Registration Defaults may have occurred and be continuing. Notwithstanding anything in this Article VII to the contrary, (i) in no event shall a Registration Default be deemed to have occurred and be continuing during any Blackout Period permitted hereunder and (iib) no Default Payment shall be due and payable following the occurrence of an Event of Default under Section 19(m) of the Security Agreement if such Event of Default occurred solely as a result of the commencement of a civil proceeding against any Company, any of its Subsidiaries or any executive office of any Company or any of its Subsidiaries unless a judgment, writ or warrant of attachment or similar process shall not be liable for special payments under this Agreement as to any Registrable Securities which are not permitted by the SEC to be included in a Registration Statement. The Company shall have no liability to any Holder of Preferred Stock for monetary damages entered or filed against such Company, such Subsidiary or such officer with respect to any Registration Default with respect to Registrable Preferred Securities other than the Default Payments provided for in this Article VII (it being understood that nothing in this sentence affects the remedies in respect of any Registration Default with respect to Registrable Common Securities)such proceeding.

Default Payment. If (a) any Registration Statement or Prospectus (or supplement thereto) is not filed within Following the time periods specified hereinoccurrence and during the continuance of an Event of Default, (b) any Registration Statement is not declared effective the Agent may demand repayment in full of all obligations and liabilities owing by the SEC or does not otherwise become effective on or prior to its required effectiveness date, or (c) after it has become effective, such Registration Statement or related Prospectus ceases for any reason to be effective and available Companies to the Notice Holders as Holder under this Note, the Security Agreement and/or any other Ancillary Agreement and/or may elect, in addition to all Registrable Securities rights and remedies of the Agent under the Security Agreement and the other Ancillary Agreements and all obligations and liabilities of each Company under the Security Agreement and the other Ancillary Agreements, to which it is required require the Companies, jointly and severally, to cover make a Default Payment ((in each case, except as specifically permitted herein) (each, a “Registration DefaultDefault Payment”)). The Default Payment shall be one hundred twenty percent (120%) of the outstanding principal amount of this Note, plus accrued but unpaid interest, all other fees then remaining unpaid, and all other amounts payable hereunder. The Default Payment shall be applied first to any fees due and payable to the Holder pursuant to the Notes and/or the Ancillary Agreements, then to accrued and unpaid interest due on the Company shall make a special payment (Notes, the “Security Agreement and then as determined by the Holder. The Default Payments”) to Notice Holders of Preferred Stock then outstanding in an amount equal to 1.50% per annum of the liquidation preference of each share of Preferred Stock, payable in cash. Special payments shall accrue from the date of the applicable Registration Default until such Registration Default has been cured, and Payment shall be due and payable quarterly in arrears on each January 15, April 15, July 15 and October 15 following such Registration Default to the record holder of the Preferred Stock immediately on the date that is 15 days prior the Agent has demanded payment of the Default Payment pursuant to such payment datethis Section 4.3. Notwithstanding anything to the contrary set forth herein, until paid (a) if the Holder waives in full. Special payments payable in respect writing any Event of any Registration Default Default, the Companies shall be computed on relieved of their obligation to make the basis of a 360-day year consisting of twelve (12) thirty (30)-day months. Special payments shall be payable only Default Payment with respect to a single Registration such Event of Default at any given time, notwithstanding the fact that multiple Registration Defaults may have occurred and be continuing. Notwithstanding anything in this Article VII to the contrary, (i) in no event shall a Registration Default be deemed to have occurred and be continuing during any Blackout Period permitted hereunder and (iib) no Default Payment shall be due and payable following the occurrence of an Event of Default under Section 20(m) of the Security Agreement if such Event of Default occurred solely as a result of the commencement of a civil proceeding against any Company, any of its Subsidiaries or any executive office of any Company or any of its Subsidiaries unless a judgment, writ or warrant of attachment or similar process shall not be liable for special payments under this Agreement as to any Registrable Securities which are not permitted by the SEC to be included in a Registration Statement. The Company shall have no liability to any Holder of Preferred Stock for monetary damages entered or filed against such Company, such Subsidiary or such officer with respect to any Registration Default with respect to Registrable Preferred Securities other than the Default Payments provided for in this Article VII (it being understood that nothing in this sentence affects the remedies in respect of any Registration Default with respect to Registrable Common Securities)such proceeding.