Common use of Late Payments; Default Rate Clause in Contracts

Late Payments; Default Rate. If the Borrower fails to make any payment of principal, interest or other amount coming due pursuant to the provisions of this Note within ten (10) calendar days of the date due and payable, the Borrower also shall pay to the Bank a late charge equal to the greater of five percent (5%) of the amount of such payment or $100.00 (the “Late Charge”). Such ten (10) day period shall not be construed in any way to extend the due date of any such payment. Upon maturity, whether by acceleration, demand or otherwise, and at the Bank’s option upon the occurrence of any Event of Default (as hereinafter defined) and during the continuance thereof, amounts outstanding under this Note shall bear interest at a rate per annum (based on the actual number of days that principal is outstanding over a year of 360 days) which shall be four percentage points (4%) in excess of the interest rate then in effect until the next succeeding Reset Date, and four percentage points (4%) in excess of the Base Rate at all times thereafter (or in the case of an Event of Default, until such time that such Event of Default has been cured by the Borrower or waived by the Bank), but in any such event not more than the maximum rate allowed by law (the “Default Rate”). The Default Rate shall continue to apply whether or not judgment shall be entered on this Note. Both the Late Charge and the Default Rate are imposed as liquidated damages for the purpose of defraying the Bank’s expenses incident to the handling of delinquent payments, but are in addition to, and not in lieu of, the Bank’s exercise of any rights and remedies hereunder, under the other Loan Documents or under applicable law, and any fees and expenses of any agents or attorneys which the Bank may employ. In addition, the Default Rate reflects the increased credit risk to the Bank of carrying a loan that is in default. The Borrower agrees that the Late Charge and Default Rate are reasonable forecasts of just compensation for anticipated and actual harm incurred by the Bank, and that the actual harm incurred by the Bank cannot be estimated with certainty and without difficulty.

Late Payments; Default Rate. If the Borrower fails to make any payment of principal, interest or other amount coming due pursuant to the provisions of this Note within ten (10) calendar days of the date due and payable, the Borrower also shall pay to the Bank a late charge equal to the greater of five percent (5%) of the amount of such payment or $100.00 (the “"Late Charge”"). Such ten (10) 10 day period shall not be construed in any way to extend the due date of any such payment. Upon maturity, whether by acceleration, demand or otherwise, and at the Bank’s 's option upon the occurrence of any Event of Default (as hereinafter defined) and during the continuance thereof, amounts outstanding under this Note shall bear interest at a rate per annum (based on the actual number of days that principal is outstanding over a year of 360 daysdays and actual days elapsed) which shall be four (4) percentage points (4%) in excess of the interest rate then in effect until the next succeeding Reset Date, and four percentage points (4%) in excess of the Base Rate at all times thereafter (or in the case of an Event of Default, until such from time that such Event of Default has been cured by the Borrower or waived by the Bank), to time under this Note but in any such event not more than the maximum rate allowed by law (the “"Default Rate”"). The Default Rate shall continue to apply whether or not judgment shall be entered on this Note. Both the Late Charge and the Default Rate are imposed as liquidated damages for the purpose of defraying the Bank’s 's expenses incident to the handling of delinquent payments, but are in addition to, and not in lieu of, the Bank’s 's exercise of any rights and remedies hereunder, under the other Loan Documents or under applicable law, and any fees and expenses of any agents or attorneys which the Bank may employ. In addition, the Default Rate reflects the increased credit risk to the Bank of carrying a loan that is in default. The Borrower agrees that the Late Charge and Default Rate are reasonable forecasts of just compensation for anticipated and actual harm incurred by the Bank, and that the actual harm incurred by the Bank cannot be estimated with certainty and without difficulty. If, at any time, any of the aforesaid rates shall be finally determined by any court of competent jurisdiction, governmental agency or tribunal to exceed the maximum rate of interest permitted by any applicable laws, then, for such time as such rate would be deemed excessive, application thereof shall be suspended and there shall be charged in lieu thereof the maximum rate of interest permissible under such laws.

Late Payments; Default Rate. If the Borrower fails to make any payment of principal, interest or other amount coming due pursuant to the provisions of this Note within ten fifteen (1015) calendar days of the date due and payable, the Borrower also shall pay to the Bank a late charge equal to the greater lesser of five percent (5%) of the amount of such payment or $100.00 (the “Late Charge”). Such ten fifteen (1015) day period shall not be construed in any way to extend the due date of any such payment. Upon maturity, whether by acceleration, demand acceleration or otherwise, and at the Bank’s option upon the occurrence of any Event of Default (as hereinafter defined) and during the continuance thereof, amounts each advance outstanding under this Note shall bear interest at a rate per annum (based on the actual number of days that principal is outstanding over a year of 360 days) which shall be four three percentage points (43%) in excess of the interest rate then in effect until the next succeeding Reset Date, and four percentage points (4%) in excess of the Base Prime Rate at all times thereafter (or in the case of an Event of Default, until such time that such Event of Default has been cured by the Borrower or waived by the Bank), but in any such event not more than the maximum rate allowed by law (the “Default Rate”). As used herein, “Prime Rate” shall mean the rate publicly announced by the Bank from time to time as its prime rate. The Prime Rate is determined from time to time by the Bank as a means of pricing some loans to its borrowers. The Prime Rate is not tied to any external rate of interest or index, and does not necessarily reflect the lowest rate of interest actually charged by the Bank to any particular class or category of customers. If and when the Prime Rate changes, the rate of interest on this Note (if such rate is based on the Prime Rate) and the Default Rate will change automatically without notice to the Borrower, effective on the date of any such change. The Default Rate shall continue to apply whether or not judgment shall be entered on this Note. Both the Late Charge and the Default Rate are imposed as liquidated damages for the purpose of defraying the Bank’s expenses incident to the handling of delinquent payments, but are in addition to, and not in lieu of, the Bank’s exercise of any rights and remedies hereunder, under the other Loan Documents or under applicable law, and any reasonable fees and expenses of any agents or attorneys which the Bank may employ. In addition, the Default Rate reflects the increased credit risk to the Bank of carrying a loan that is in default. The Borrower agrees that the Late Charge and Default Rate are reasonable forecasts of just compensation for anticipated and actual harm incurred by the Bank, and that the actual harm incurred by the Bank cannot be estimated with certainty and without difficulty.

Late Payments; Default Rate. If the Borrower fails Borrowers fail to make any payment of principal, interest or other amount coming due pursuant to the provisions of this Series B Note within ten (10) calendar days of the date due and payable, the Borrower Borrowers also shall pay to the Bank Series B Lender a late charge equal to the greater lesser of five two percent (52%) of the amount of such payment or $100.00 (the “Late Charge”)25.00. Such ten (10) day period shall not be construed in any way to extend the due date of any such payment. The late charge is imposed for the purpose of defraying the Series B Lender's expenses incident to the handling of delinquent payments and is in addition to, and not in lieu of, the exercise by the Series B Lender of any rights and remedies hereunder, under the other Loan Documents or under applicable laws, and any fees and expenses of any agents or attorneys which the Series B Lender may employ. Upon maturity, maturity (whether by acceleration, demand or otherwise), and or at the Bank’s option of the Series B Lender, upon the occurrence of any Event of Default (as hereinafter defined) and during the continuance thereof, amounts outstanding under this Series B Note shall bear interest at a rate per annum (based on the actual number of days that principal is outstanding over a year of 360 daysdays and actual days elapsed) which shall be four two percentage points (42%) in excess of the interest rate then in effect until the next succeeding Reset Date, and four percentage points (4%) in excess of the Base Rate at all times thereafter (or in the case of an Event of Default, until such from time that such Event of Default has been cured by the Borrower or waived by the Bank), to time under this Series B Note but in any such event not more than the maximum rate allowed by law (the “"Default Rate”"). The Default Rate shall continue to apply whether or not judgment shall be entered on this Series B Note. Both ." The last unnumbered paragraph of Section 6 of the Late Charge Note shall be replaced with the following: "Upon the occurrence and during the continuance of an Event of Default: (a) if an Event of Default specified in clauses (iii) or (iv) above shall occur, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder shall be immediately due and payable without demand or notice of any kind; (b) if an Event of Default specified in clauses (i), (vii) or (xi) above, or Section 6.E. or 6.F. of the Loan Agreement, or an Event of Default resulting from a breach of Section 5.G. of the Loan Agreement, shall occur, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder, at the option of the Requisite A Lenders or, if the Series A Note shall no longer be outstanding, the Requisite Lenders, and without demand or notice of any kind, may be accelerated and become immediately due and payable; (c) if an Event of Default specified in clause (v) shall occur in connection with the obligations under that certain Securities Purchase Agreement, dated as of July 8, 1999, between the Series A Lender and Thermoview, as amended from time to time, or the aggregate amount outstanding thereunder shall be accelerated as a result of a default thereunder pursuant to Sections 5.1(h) or 7.1(a) thereof, at the option of the Requisite A Lenders or, if the Series A Note shall no longer be outstanding, the Requisite C Lender, and without demand or notice of any kind, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder may be accelerated and become immediately due and payable; (d) if any other Event of Default shall occur and the same shall continue unremedied for a period of 30 days thereafter, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder, at the option of the Requisite Lenders and without demand or notice of any kind, may be accelerated and become immediately due and payable; (e) at the option of the Requisite Lenders the Series B Notes will bear interest at the Default Rate are imposed as liquidated damages for from the purpose date of defraying the Bank’s expenses incident to occurrence of the handling Event of delinquent payments, but are in addition to, and not in lieu ofDefault; (f) at the option of the Requisite A Lenders, the Bank’s Series A Note and/or the Series C Note, as the case may be, will bear interest at the Default Rate from the date of the occurrence of the Event of Default; and (g) the Series B Lender may exercise from time to time any of any the rights and remedies hereunder, available to the Series B Lender under the other Loan Documents or under applicable law, and any fees and expenses of any agents or attorneys which the Bank may employ. In addition, the Default Rate reflects the increased credit risk to the Bank of carrying a loan that is in default. The Borrower agrees that the Late Charge and Default Rate are reasonable forecasts of just compensation for anticipated and actual harm incurred by the Bank, and that the actual harm incurred by the Bank cannot be estimated with certainty and without difficulty."

Late Payments; Default Rate. If the Borrower fails to make any payment of principal, interest or other amount coming due pursuant to the provisions of this Agreement or any Note within ten (10) calendar days of the date due and payable, the Borrower also shall pay to the Bank Lender a late charge equal to the greater of five percent (55.0%) of the amount of such payment or $100.00 (the “"Late Charge”"). Such ten (10) day period shall not be construed in any way to extend the due date of any such payment. Upon maturity, whether by acceleration, demand or otherwise, and at the Bank’s Lender's option upon the occurrence of any Event of Default (as hereinafter defined) and during the continuance thereof, amounts outstanding under this the applicable Note shall bear interest at a rate per annum (based on the actual number of days that principal is outstanding over a year of 360 days) which shall be four five percentage points (45.0%) in excess of the interest rate then in effect until from time to time under this Agreement or the next succeeding Reset Date, and four percentage points (4%) in excess of the Base Rate at all times thereafter (or in the case of an Event of Default, until such time that such Event of Default has been cured by the Borrower or waived by the Bank), applicable Note but in any such event not more than the maximum rate allowed by law (the “"Default Rate”"). The Default Rate shall continue to apply whether or not judgment shall be entered on this the applicable Note. Both the Late Charge and the Default Rate are imposed as liquidated damages for the purpose of defraying the Bank’s Lender's expenses incident to the handling of delinquent payments, but are in addition to, and not in lieu of, the Bank’s Lender's exercise of any rights and remedies hereunder, under the other Loan Documents or under applicable law, and any fees and expenses of any agents or attorneys which the Bank Lender may employ. In addition, the Default Rate reflects the increased credit risk to the Bank Lender of carrying a loan that is in default. The Borrower agrees that the Late Charge and Default Rate are reasonable forecasts of just compensation for anticipated and actual harm incurred by the BankLender, and that the actual harm incurred by the Bank Lender cannot be estimated with certainty and without difficulty.

Late Payments; Default Rate. If the Borrower fails Borrowers fail to make any payment of principal, interest or other amount coming due pursuant to the provisions of this Series C Note within ten (10) calendar days of the date due and payable, the Borrower Borrowers also shall pay to the Bank Series C Lender a late charge equal to the greater lesser of five two percent (52%) of the amount of such payment or $100.00 (the “Late Charge”)25.00. Such ten (10) day period shall not be construed in any way to extend the due date of any such payment. The late charge is imposed for the purpose of defraying the Series C Lender's expenses incident to the handling of delinquent payments and is in addition to, and not in lieu of, the exercise by the Series C Lender of any rights and remedies hereunder, under the other Loan Documents or under applicable laws, and any fees and expenses of any agents or attorneys which the Series C Lender may employ. Upon maturity, maturity (whether by acceleration, demand or otherwise), and or at the Bank’s option of the Series C Lender, upon the occurrence of any Event of Default (as hereinafter defined) and during the continuance thereof, amounts outstanding under this Series C Note shall bear interest at a rate per annum (based on the actual number of days that principal is outstanding over a year of 360 daysdays and actual days elapsed) which shall be four two percentage points (42%) in excess of the interest rate then in effect until the next succeeding Reset Date, and four percentage points (4%) in excess of the Base Rate at all times thereafter (or in the case of an Event of Default, until such from time that such Event of Default has been cured by the Borrower or waived by the Bank), to time under this Series C Note but in any such event not more than the maximum rate allowed by law (the “"Default Rate”"). The Default Rate shall continue to apply whether or not judgment shall be entered on this Series C Note. Both ." The last unnumbered paragraph of Section 6 of the Late Charge Note shall be replaced with the following: "Upon the occurrence and during the continuance of an Event of Default: (a) if an Event of Default specified in clauses (iii) or (iv) above shall occur, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder shall be immediately due and payable without demand or notice of any kind; (b) if an Event of Default specified in clauses (i), (vii) or (xi) above, or Section 6.E. or 6.F. of the Loan Agreement, or an Event of Default resulting from a breach of Section 5.G. of the Loan Agreement, shall occur, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder, at the option of the Requisite A Lenders or, if the Series A Note shall no longer be outstanding, the Requisite Lenders, and without demand or notice of any kind, may be accelerated and become immediately due and payable; (c) if an Event of Default specified in clause (v) shall occur in connection with the obligations under that certain Securities Purchase Agreement, dated as of July 8, 1999, between the Series A Lender and Thermoview, as amended from time to time, or the aggregate amount outstanding thereunder shall be accelerated as a result of a default thereunder pursuant to Sections 5.1(h) or 7.1(a) thereof, at the option of the Requisite A Lenders or, if the Series A Note shall no longer be outstanding, the Requisite C Lender, and without demand or notice of any kind, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder may be accelerated and become immediately due and payable; (d) if any other Event of Default shall occur and the same shall continue unremedied for a period of 30 days thereafter, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder, at the option of the Requisite Lenders and without demand or notice of any kind, may be accelerated and become immediately due and payable; (e) at the option of the Requisite Lenders the Series B Notes will bear interest at the Default Rate are imposed as liquidated damages for from the purpose date of defraying the Bank’s expenses incident to occurrence of the handling Event of delinquent payments, but are in addition to, and not in lieu ofDefault; (f) at the option of the Requisite A Lenders, the Bank’s Series A Note and/or the Series C Note, as the case may be, will bear interest at the Default Rate from the date of the occurrence of the Event of Default; and (g) the Series C Lender may exercise from time to time any of any the rights and remedies hereunder, available to the Series C Lender under the other Loan Documents or under applicable law, and any fees and expenses of any agents or attorneys which the Bank may employ. In addition, the Default Rate reflects the increased credit risk to the Bank of carrying a loan that is in default. The Borrower agrees that the Late Charge and Default Rate are reasonable forecasts of just compensation for anticipated and actual harm incurred by the Bank, and that the actual harm incurred by the Bank cannot be estimated with certainty and without difficulty."

Late Payments; Default Rate. If the Borrower fails Borrowers fail to make any payment of principal, interest or other amount coming due pursuant to the provisions of this Series A Note within ten (10) calendar days of the date due and payable, the Borrower Borrowers also shall pay to the Bank Series A Lender a late charge equal to the greater lesser of five two percent (52%) of the amount of such payment or $100.00 (the “Late Charge”)25.00. Such ten (10) day period shall not be construed in any way to extend the due date of any such payment. The late charge is imposed for the purpose of defraying the Series A Lender's expenses incident to the handling of delinquent payments and is in addition to, and not in lieu of, the exercise by the Series A Lender of any rights and remedies hereunder, under the other Loan Documents or under applicable laws, and any fees and expenses of any agents or attorneys which the Series A Lender may employ. Upon maturity, maturity (whether by acceleration, demand or otherwise), and or at the Bank’s option of the Series A Lender, upon the occurrence of any Event of Default (as hereinafter defined) and during the continuance thereof, amounts outstanding under this Series A Note shall bear interest at a rate per annum (based on the actual number of days that principal is outstanding over a year of 360 daysdays and actual days elapsed) which shall be four two percentage points (42%) in excess of the interest rate then in effect until the next succeeding Reset Date, and four percentage points (4%) in excess of the Base Rate at all times thereafter (or in the case of an Event of Default, until such from time that such Event of Default has been cured by the Borrower or waived by the Bank), to time under this Series A Note but in any such event not more than the maximum rate allowed by law (the “"Default Rate”"). The Default Rate shall continue to apply whether or not judgment shall be entered on this Series A Note. Both ." The last unnumbered paragraph of Section 6 of the Late Charge Note shall be replaced with the following: "Upon the occurrence and during the continuance of an Event of Default: (a) if an Event of Default specified in clauses (iii) or (iv) above shall occur, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder shall be immediately due and payable without demand or notice of any kind; (b) if an Event of Default specified in clauses (i), (vii) or (xi) above, or Section 6.E. or 6.F. of the Loan Agreement, or an Event of Default resulting from a breach of Section 5.G. of the Loan Agreement, shall occur, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder, at the option of the Requisite A Lenders or, if the Series A Note shall no longer be outstanding, the Requisite Lenders, and without demand or notice of any kind, may be accelerated and become immediately due and payable; (c) if an Event of Default specified in clause (v) shall occur in connection with the obligations under that certain Securities Purchase Agreement, dated as of July 8, 1999, between the Series A Lender and Thermoview, as amended from time to time, or the aggregate amount outstanding thereunder shall be accelerated as a result of a default thereunder pursuant to Sections 5.1(h) or 7.1(a) thereof, at the option of the Requisite A Lenders and without demand or notice of any kind, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder may be accelerated and become immediately due and payable; (d) if any other Event of Default shall occur and the same shall continue unremedied for a period of 30 days thereafter, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder, at the option of the Requisite Lenders and without demand or notice of any kind, may be accelerated and become immediately due and payable; (e) at the option of the Requisite Lenders the Series B Notes will bear interest at the Default Rate are imposed as liquidated damages for from the purpose date of defraying the Bank’s expenses incident to occurrence of the handling Event of delinquent payments, but are in addition to, and not in lieu ofDefault; (f) at the option of the Requisite A Lenders, the Bank’s Series A Note and/or the Series C Note, as the case may be, will bear interest at the Default Rate from the date of the occurrence of the Event of Default; and (g) the Series A Lender may exercise from time to time any of any the rights and remedies hereunder, available to the Series A Lender under the other Loan Documents or under applicable law, and any fees and expenses of any agents or attorneys which the Bank may employ. In addition, the Default Rate reflects the increased credit risk to the Bank of carrying a loan that is in default. The Borrower agrees that the Late Charge and Default Rate are reasonable forecasts of just compensation for anticipated and actual harm incurred by the Bank, and that the actual harm incurred by the Bank cannot be estimated with certainty and without difficulty."