Common use of DELAY FEE Clause in Contracts

DELAY FEE. (a) The Company agrees that the Holders will suffer damages if the Company fails to fulfill its obligations under Section 2 hereof and that it would not be feasible to ascertain the extent of such damages with precision. Accordingly: (i) if the Company fails to file a Registration Statement with the Commission within the number of days required by Section 2(a)(i) hereof (subject to Section 2(d)(i) hereof); or (ii) if, after a Registration Statement is declared or otherwise becomes effective, it thereafter ceases to be effective or usable for any reason, including, but not limited to, the events described in Sections 4(a)(v) through 4(a)(vii) hereof (other than in connection with a Suspension Period); (each such event referred to in the preceding clauses (i) and (ii), a “Registration Default”), then the Company will pay a delay fee (the “Delay Fee”) on the Registrable Securities calculated for the period from and including the date on which any such Registration Default shall occur to but excluding the date on which all Registration Defaults have been cured. The Delay Fee shall be calculated as a percentage of the aggregate principal amount of all Registrable Securities included or required to be included in such Registration Statement, and the percentage rate will be .25% per annum for the first thirty (30) day period immediately following the occurrence of a Registration Default, and such rate will increase by an additional .25% per annum for each thirty (30) day period thereafter until all Registration Defaults have been cured, provided that the maximum Delay Fee rate shall be 1.00% per annum from and including the date on which any such Registration Default shall occur to but excluding the earlier of (1) the date on which all Registration Defaults have been cured or (2) the date on which all the Registrable Securities included or required to be included in such Registration Statement cease to be Registrable Securities. Such Delay Fee will be in addition to any interest payable from time to time with respect to the Registrable Securities. If, after the cure of all Registration Defaults then in effect, there is a subsequent Registration Default, the Delay Fee rate for such subsequent Registration Default shall initially be 0.50% regardless of the rate in effect with respect to any prior Registration Default at the time of cure of such Registration Default. Notwithstanding the foregoing, the amount of Delay Fee payable shall not increase because more than one Registration Default has occurred and is pending. (b) So long as Registrable Securities remain outstanding, the Company shall notify the Participating Holders within ten (10) days after each and every date on which a Registration Default occurs. Any Delay Fee will be payable by the Company in cash and be paid at the same time as each quarterly payment of interest on the Notes (each, a “Delay Fee Payment Date”), commencing with the first such date occurring after any such Delay Fee commences to accrue, to Participating Holders with respect to Registrable Securities included or required to be included in such Registration Statement. The amount of Delay Fee for Registrable Securities will be determined by multiplying the applicable Delay Fee rate by the aggregate principal amount of all such Registrable Securities included or required to be included in such Registration Statement on the Delay Fee Payment Date following such Registration Default in the case of the first such payment of Delay Fee (and thereafter at the next succeeding Delay Fee Payment Date until the cure of such Registration Default), and then multiplying such figure by a fraction, the numerator of which is the number of days such Delay Fee rate was applicable during such period determined on the basis of a 360-day year comprised of twelve thirty (30) day months (and, in the case of a partial month, the actual number of days elapsed), and the denominator of which is 360.

DELAY FEE. (a) The Company agrees that the Holders will suffer damages if the Company fails to fulfill its obligations under Section 2 hereof and that it would not be feasible to ascertain the extent of such damages with precision. Accordingly: (i) if the Company fails to file a Registration Statement with the Commission within the number of days required by Section 2(a)(i) hereof (subject to Section 2(d)(i) hereof); or (ii) if, after a Registration Statement is declared or otherwise becomes effective, it thereafter ceases to be effective or usable for any reason, including, but not limited to, the events described in Sections 4(a)(v) through 4(a)(vii) hereof (other than in connection with a Suspension Period); (each such event referred to in the preceding clauses (i) and (ii), a “Registration Default”), then the Company will pay a delay fee (the “Delay Fee”) on the Registrable Securities calculated for the period from and including the date on which any such Registration Default shall occur to but excluding the date on which all Registration Defaults have been cured. The Delay Fee shall be calculated as a percentage of the aggregate principal amount of all Registrable Securities included or required to be included in such Registration StatementAssumed Value, and the percentage rate will be .25% per annum for the first thirty (30) day period immediately following the occurrence of a Registration Default, and such rate will increase by an additional .25% per annum for each thirty (30) day period thereafter until all Registration Defaults have been cured, provided that the maximum Delay Fee rate shall be 1.00% per annum from and including the date on which any such Registration Default shall occur to but excluding the earlier of (1) the date on which all Registration Defaults have been cured or (2) the date on which all the Registrable Securities included or required to be included in such Registration Statement cease to be Registrable Securities. Such Delay Fee will be in addition to any interest other amounts payable from time to time with respect to the Registrable Securities. If, after the cure of all Registration Defaults then in effect, there is a subsequent Registration Default, the Delay Fee rate for such subsequent Registration Default shall initially be 0.50% regardless of the rate in effect with respect to any prior Registration Default at the time of cure of such Registration Default. Notwithstanding the foregoing, the amount of Delay Fee payable shall not increase because more than one Registration Default has occurred and is pending. (b) So long as Registrable Securities remain outstanding, the Company shall notify the Participating Holders within ten (10) days after each and every date on which a Registration Default occurs. Any Delay Fee will be payable by the Company in cash and be paid at the same time as each quarterly payment of interest on the Notes last day (and if such day is not a business day, then on the next succeeding business day) of each February, May, August and November (each, a “Delay Fee Payment Date”), commencing with the first such date occurring after any such Delay Fee commences to accrue, to Participating Holders with respect to Registrable Securities included or required to be included in such Registration Statement. The amount of Delay Fee for Registrable Securities will be determined by multiplying the applicable Delay Fee rate by the aggregate principal amount of all such Registrable Securities included or required to be included in such Registration Statement Assumed Value on the Delay Fee Payment Date following such Registration Default in the case of the first such payment of a Delay Fee (and thereafter at the next succeeding Delay Fee Payment Date until the cure of such Registration Default), and then multiplying such figure by a fraction, the numerator of which is the number of days such Delay Fee rate was applicable during such period determined on the basis of a 360-day year comprised of twelve thirty (30) day months (and, in the case of a partial month, the actual number of days elapsed), and the denominator of which is 360. The total amount of all Delay Fees that the Company shall be obligated to pay under this Agreement, regardless of the number of Demand Requests or the number and duration of the Registration Defaults, shall be limited to $1,500,000.

DELAY FEE. (a) The Company agrees that the Holders will suffer damages if the Company fails to fulfill its obligations under Section 2 hereof and that it would not be feasible to ascertain the extent of such damages with precision. Accordingly: (i) if the Company fails to file offer the Holders the right to request inclusion of any of such Holder’s Registrable Securities in a Proposed Registration Statement with the Commission within the number of days required by Section 2(a)(i) hereof (subject pursuant to Section 2(d)(i2(b) hereof); or (ii) if, after due receipt of a written request by a Holder pursuant to Section 2(b) hereof to include its Registrable Securities in a Proposed Registration, the Company fails to include such Registrable Securities in the Proposed Registration (subject to the limitations of Section 2(c) hereof) upon effectiveness of the Registration Statement is declared or otherwise becomes effective, it thereafter ceases to be effective or usable for any reason, including, but not limited to, the events described in Sections 4(a)(v) through 4(a)(vii) hereof (other than in connection with a Suspension Period); (each such event referred to in the preceding clauses (i) and (ii), a “Registration DefaultDefaul”), then the Company will pay a delay fee (the “Delay Fee”) on the Registrable Securities calculated for the period from and including the date on which any such Registration Default shall occur to to, but excluding excluding, the date on which all Registration Defaults have been cured. The Delay Fee shall be calculated as a percentage of the aggregate principal amount of all Registrable Securities included or required to be included in such Registration Statement, subject to Section 2(c), and the percentage rate will be .250.25% per annum for the first thirty (30) day period immediately following the occurrence of a Registration Default, and such rate will increase by an additional .250.25% per annum for each thirty (30) day period thereafter until all Registration Defaults have been cured, provided that the maximum Delay Fee rate shall be 1.00% per annum from and including the date on which any such Registration Default shall occur to but excluding the earlier of (1) the date on which all Registration Defaults have been cured or (2) the date on which all the Registrable Securities included or required to be included in such Registration Statement cease to be Registrable Securities. Such Delay Fee will be in addition to any interest payable from time to time with respect to the Registrable Securities. If, after the cure of all Registration Defaults then in effect, there is a subsequent Registration Default, the Delay Fee rate for such subsequent Registration Default shall initially be 0.50% regardless of the rate in effect with respect to any prior Registration Default at the time of cure of such Registration Default. Notwithstanding the foregoing, the amount of a Delay Fee payable shall not increase because more than one Registration Default has occurred and is pending. (b) So long as Registrable Securities remain outstanding, the Company shall notify the Participating Holders within ten (10) days after each and every date on which a Registration Default occurs. Any Delay Fee will be payable by the Company in cash and be paid at the same time as on each quarterly payment Interest Payment Date of interest on the Notes (each, a “Delay Fee Payment Date”), commencing with the first such date occurring after any such Delay Fee commences to accrue, to Participating Holders with respect to Registrable Securities included or required to be included in such Registration Statement. The amount of Delay Fee for Registrable Securities will be determined by multiplying the applicable Delay Fee rate by the aggregate principal amount of all such Registrable Securities included or required to be included in such Registration Statement on the Delay Fee Payment Date following such Registration Default in the case of the first such payment of Delay Fee (and thereafter at the next succeeding Delay Fee Payment Date until the cure of such Registration Default), and then multiplying such figure by a fraction, the numerator of which is the number of days such Delay Fee rate was applicable during such period determined on the basis of a 360-day year comprised of twelve thirty (30) day months (and, in the case of a partial month, the actual number of days elapsed), and the denominator of which is 360.