Common use of Limitations on Conversion Clause in Contracts

Limitations on Conversion. The Company will not effect any conversion of the Securities (including any Mandatory Conversion pursuant to Section 6.10), and Holders of the Securities will not have the right to convert any portion of the Securities, in excess of that portion of the Securities on conversion of which the sum of (1) the number of shares of Common Stock beneficially owned by a Holder and its Affiliates (other than shares of Common Stock which may be deemed beneficially owned through the ownership of the unconverted portion of the Securities or the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Holder or its Affiliates subject to a limitation on exercise or conversion analogous to the limitations described in this Section 6.17) and (2) the number of shares of Common Stock issuable upon the conversion of the portion of the Securities with respect to which the determination set forth in this sentence is being made (including any shares related to the settlement of the Coupon Make Whole Payment and the Additional Amount in connection therewith), would result in beneficial ownership by such Holder and its Affiliates of any amount greater than 9.9% (the “Maximum Percentage”) of the then issued and outstanding shares of Common Stock. Except as set forth in the preceding sentence, for purposes of this Section 6.17, beneficial ownership will be calculated in accordance with Section 13(d) and the rules and regulations promulgated thereunder under the Exchange Act. For purposes of this Section 6.17, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of issued and outstanding shares of Common Stock as reflected in (x) the Company’s most recent document or report, as the case may be, filed by the Company with the Commission, (y) a more recent public announcement by the Company or (z) any other recent notice by the Company, in each case setting forth the number of shares of Common Stock issued and outstanding. Upon the written request of a Holder, the Company will within two Business Days confirm in writing to such Holder the number of shares of Common Stock then issued and outstanding. In any case, the number of issued and outstanding shares of Common Stock will be determined for this purpose after giving effect to the conversion or exercise of securities of the Company, including the Securities, by the applicable Holder and its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported, announced or confirmed. Any purported delivery of shares of Common Stock upon exercise of the conversion right on the Securities will be void and have no effect to the extent (but only to the extent) that such delivery would result in a Holder (including its Affiliates) becoming the beneficial owner of more than the Maximum Percentage of the shares of Common Stock outstanding at such time. Notwithstanding anything to the contrary in this Section 6.17, no Holder will be entitled, with or without the Company’s consent, to waive the restrictions set forth in this Section 6.17. If the Company is unable to exercise its option (pursuant to Section 6.10) to convert some or all of the Securities of any Holder due to the limitations described in this Section 6.17, then the Company will have the right at any time to redeem the Securities held by such Holder that the Company is not permitted to convert; provided, however, that the Company may only redeem the Securities after the 2015 Notes are no longer outstanding. If the Company elects to redeem such Securities from such Holder, the redemption shall be made in accordance with and pursuant to the provisions of Article 7. In addition, the Holder will retain its right to voluntarily convert such Holder’s Securities, subject to the limitations set forth in this Section 6.17.

Limitations on Conversion. The Company will not effect (a) Notwithstanding any conversion other provision of this Agreement, prior to obtaining Unitholder approval of the Securities (including any Mandatory Conversion pursuant to Section 6.10), and Holders of the Securities will not have the right to convert any portion of the Securities, in excess of that portion of the Securities on conversion of which the sum of (1) the number of shares of Common Stock beneficially owned by a Holder and its Affiliates (other than shares of Common Stock which may be deemed beneficially owned through the ownership of the unconverted portion of the Securities or the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Holder or its Affiliates subject to a limitation on exercise or conversion analogous to the limitations described in this Section 6.17) and (2) the number of shares of Common Stock issuable upon the conversion of the portion of the Securities with respect to which the determination set forth in this sentence is being made (including any shares related to the settlement of the Coupon Make Whole Payment and the Additional Amount in connection therewith), would result in beneficial ownership by such Holder and its Affiliates of any amount greater than 9.9% (the “Maximum Percentage”) of the then issued and outstanding shares of Common Stock. Except as set forth in the preceding sentence, for purposes of this Section 6.17, beneficial ownership will be calculated Series A Proposal in accordance with Section 13(d) and the rules and regulations promulgated thereunder under the Exchange Act. For purposes of this Section 6.17, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of issued and outstanding shares of Common Stock as reflected in (x) the Company’s most recent document or report, as the case may be, filed by the Company with the Commission, (y) a more recent public announcement by the Company or (z) any other recent notice by the Company, in each case setting forth the number of shares of Common Stock issued and outstanding. Upon the written request of a Holder, the Company will within two Business Days confirm in writing to such Holder the number of shares of Common Stock then issued and outstanding. In any case5.12(b)(iii), the number of Common Units that may be issued and outstanding shares upon conversion of Series A Preferred Units pursuant to this Section 5.12(b)(viii) shall not exceed a number that, when added to the total number of Common Stock will be determined for this purpose after giving effect Units deemed Beneficially Owned by such Holder at such time (other than by virtue of the ownership of securities or rights to acquire securities that have limitations on the right to convert, exercise or purchase similar to the conversion or exercise of securities limitation set forth herein), would exceed the Common Unit Cap. If, prior to obtaining Unitholder approval of the CompanySeries A Proposal in accordance with Section 5.12(b)(iii), including the Securities, by the applicable Holder and its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported, announced or confirmed. Any purported delivery of shares of Common Stock upon exercise of the Units to be issued pursuant to a conversion right on the Securities will be void and have no effect to the extent (but only to the extent) that such delivery would result in a Holder (including its Affiliates) becoming the beneficial owner of more than the Maximum Percentage of the shares of Common Stock outstanding at such time. Notwithstanding anything to the contrary in accordance with this Section 6.17, no Holder will be entitled, with or without the Company’s consent, to waive the restrictions 5.12(b)(viii) as set forth in this Section 6.17. If on any Series A Conversion Notice or Series A Forced Conversion Notice would exceed the Company is unable to exercise its option (pursuant to Section 6.10) to convert some or all of the Securities of any Holder due to the limitations described in this Section 6.17Common Unit Cap, then the Company will have shall issue one Class B Unit to such Unitholder for each Common Unit to be issued upon conversion in excess of the right Common Unit Cap. After obtaining Unitholder approval of the Series A Proposal, or, if at any time the rules of the National Securities Exchange on which the Common Units are listed or admitted for trading or the staff interpretations of such rules are amended and modified so that no vote or consent of Unitholders is required to redeem issue Common Units in excess of the Securities held by Common Unit Cap, then on the effective date of any such Holder that amendment or modification, the Company limitation on issuing Common Units in excess of the Common Unit Cap shall not apply and all Series A Preferred Units shall be convertible into Common Units in accordance with Section 5.12(b)(viii) without further action or any vote of any Unitholders other than compliance with Section 5.12(b)(viii). If for any other reason the issuance of any Common Unit pursuant to a conversion in accordance with this Section 5.12(b)(viii) is not permitted to convert; providedby applicable law, howeverrule or regulation, that then the Company shall issue one Class B Unit to such Unitholder for each such Common Unit to be issued upon conversion. (b) Notwithstanding any other provision of this Agreement, the number of Common Units or Class B Units that may only redeem be issued upon conversion of any Series A Preferred Units pursuant to this Section 5.12(b)(viii) shall not exceed a number of Common Units and Class B Units that (assuming (i) such Series A Preferred Units had been converted to such number of Common Units and Class B Units, (ii) all such Converted Units were Outstanding, (iii) such Outstanding Converted Common Units received the Securities after distribution per Common Unit as declared by the 2015 Notes are no longer outstanding. If Board, (iv) such Outstanding Converted B Units received one hundred ten percent (110%) of the distribution per Common Unit as declared by the Board, and (v) the Board will declare the same amount of distributions per Common Unit in the next succeeding four Quarters) would cause the aggregate distributions of the Company elects for any Quarter during the next succeeding four Quarters to redeem exceed the estimated Total Distributable Cash Flow for such Securities from such Holder, the redemption shall be made in accordance with and pursuant to the provisions of Article 7. In addition, the Holder will retain its right to voluntarily convert such Holder’s Securities, subject to the limitations set forth in this Section 6.17Quarter.

Limitations on Conversion. The Company will not effect any conversion of the Securities (including any Mandatory Conversion pursuant to Section 6.10), and Holders of the Securities will not have the right to convert any portion of the Securities, in excess of that portion of the Securities on conversion of which the sum of (1) the number of shares of Common Stock beneficially owned by a Holder and its Affiliates (other than shares of Common Stock which may be deemed beneficially owned through the ownership of the unconverted portion of the Securities or the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Holder or its Affiliates subject to a limitation on exercise or conversion analogous to the limitations described in this Section 6.17) and (2) the number of shares of Common Stock issuable upon the conversion of the portion of the Securities with respect to which the determination set forth in this sentence is being made (including any shares related to the settlement of the Coupon Make Whole Payment and the Additional Amount in connection therewith), would result in beneficial ownership by such Holder and its Affiliates of any amount greater than 9.9% (the “Maximum Percentage”) of the then issued and outstanding shares of Common Stock. Except as set forth in the preceding sentence, for purposes of this Section 6.17, beneficial ownership will be calculated in accordance with Section 13(d) and the rules and regulations promulgated thereunder under the Exchange Act. For purposes of this Section 6.17, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of issued and outstanding shares of Common Stock as reflected in (x) the Company’s most recent document or report, as the case may be, filed by the Company with the Commission, (y) a more recent public announcement by the Company or (z) any other recent notice by the Company, in each case setting forth the number of shares of Common Stock issued and outstanding. Upon the written request of a Holder, the Company will within two Business Days confirm in writing to such Holder the number of shares of Common Stock then issued and outstanding. In any case, the number of issued and outstanding shares of Common Stock will be determined for this purpose after giving effect to the conversion or exercise of securities of the Company, including the Securities, by the applicable Holder and its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported, announced or confirmed. Any purported delivery of shares of Common Stock upon exercise of the conversion right on the Securities will be void and have no effect to the extent (but only to the extent) that such delivery would result in a Holder (including its Affiliates) becoming the beneficial owner of more than the Maximum Percentage of the shares of Common Stock outstanding at such time. Notwithstanding anything to the contrary in this Section 6.17, no Holder will be entitled, with or without the Company’s consent, to waive the restrictions set forth in this Section 6.17. If the Company is unable to exercise its option (pursuant to Section 6.10) to convert some or all of the Securities of any Holder due to the limitations described in this Section 6.17, then the Company will have the right at any time to redeem the Securities held by such Holder that the Company is not permitted to convert; provided, however, that the Company may only redeem the Securities after the 2015 Notes and the 2017 Notes are no longer outstanding. If the Company elects to redeem such Securities from such Holder, the redemption shall be made in accordance with and pursuant to the provisions of Article 7. In addition, the Holder will retain its right to voluntarily convert such Holder’s Securities, subject to the limitations set forth in this Section 6.17.

Limitations on Conversion. The Company will not effect any conversion of the Securities (including any Mandatory Conversion pursuant to Section 6.106.09), and Holders of the Securities will not have the right to convert any portion of the Securities, in excess of that portion of the Securities on conversion of which the sum of (1) the number of shares of Common Stock beneficially owned by a Holder and its Affiliates (other than shares of Common Stock which may be deemed beneficially owned through the ownership of the unconverted portion of the Securities or the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Holder or its Affiliates subject to a limitation on exercise or conversion analogous to the limitations described in this Section 6.176.16) and (2) the number of shares of Common Stock issuable upon the conversion of the portion of the Securities with respect to which the determination set forth in this sentence is being made (including any shares related to the settlement of the Coupon Make Whole Payment and the Additional Amount in connection therewith), would result in beneficial ownership by such Holder and its Affiliates of any amount greater than 9.9% (the “Maximum Percentage”) of the then issued and outstanding shares of Common Stock. Except as set forth in the preceding sentence, for purposes of this Section 6.176.16, beneficial ownership will be calculated in accordance with Section 13(d) and the rules and regulations promulgated thereunder under the Exchange Act. For purposes of this Section 6.176.16, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of issued and outstanding shares of Common Stock as reflected in (x) the Company’s most recent document or report, as the case may be, filed by the Company with the Commission, (y) a more recent public announcement by the Company or (z) any other recent notice by the Company, in each case setting forth the number of shares of Common Stock issued and outstanding. Upon the written request of a Holder, the Company will within two Business Days confirm in writing to such Holder the number of shares of Common Stock then issued and outstanding. In any case, the number of issued and outstanding shares of Common Stock will be determined for this purpose after giving effect to the conversion or exercise of securities of the Company, including the Securities, by the applicable Holder and its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported, announced or confirmed. Any purported delivery of shares of Common Stock upon exercise of the conversion right on the Securities will be void and have no effect to the extent (but only to the extent) that such delivery would result in a Holder (including its Affiliates) becoming the beneficial owner of more than the Maximum Percentage of the shares of Common Stock outstanding at such time. Notwithstanding anything to the contrary in this Section 6.176.16, no Holder will be entitled, with or without the Company’s consent, to waive the restrictions set forth in this Section 6.176.16. If the Company is unable to exercise its option (pursuant to Section 6.106.09) to convert some or all of the Securities of any Holder due to the limitations described in this Section 6.176.16, then the Company will have the right at any time to redeem the Securities held by such Holder that the Company is not permitted to convert[; provided, however, that the Company may only redeem the Securities after the 2015 Notes are no longer outstandingoutstanding]31. If the Company elects to redeem such Securities from such Holder, the redemption shall be made in accordance with and pursuant to the provisions of Article 7. In addition, the Holder will retain its right to voluntarily convert such Holder’s Securities, subject to the limitations set forth in this Section 6.176.16.

Limitations on Conversion. The Notwithstanding anything to the contrary set forth in this Note, the Company will shall not effect any the conversion of the Securities (including any Mandatory Conversion pursuant to Section 6.10)this Note, and Holders of the Securities will Holder shall not have the right to convert this Note pursuant to the terms and conditions hereof and any portion of such conversion shall be null and void and treated as if never made, to the Securitiesextent that after giving effect to such conversion, Holder, together with any Attribution Parties (as defined below) to Holder, collectively would beneficially own in excess of that portion of the Securities on conversion of which the sum of (1) the number of shares of Common Stock beneficially owned by a Holder and its Affiliates (other than shares of Common Stock which may be deemed beneficially owned through the ownership of the unconverted portion of the Securities or the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Holder or its Affiliates subject to a limitation on exercise or conversion analogous to the limitations described in this Section 6.17) and (2) the number of shares of Common Stock issuable upon the conversion of the portion of the Securities with respect to which the determination set forth in this sentence is being made (including any shares related to the settlement of the Coupon Make Whole Payment and the Additional Amount in connection therewith), would result in beneficial ownership by such Holder and its Affiliates of any amount greater than 9.99.99% (the “Maximum Percentage”) of the then issued and outstanding shares of Common StockStock outstanding immediately after giving effect to such conversion. Except as set forth in For purposes of the preceding foregoing sentence, for the aggregate number of shares of Common Stock beneficially owned by Holder and other Attribution Parties to Holder shall include the number of shares of Common Stock held by Holder and all other Attribution Parties to Holder, plus the number of shares of Common Stock issuable upon conversion of this Note with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (i) conversion of the remaining, non-converted portion of this Note beneficially owned by Holder or any other Attribution Parties to Holder and (ii) exercise or conversion of the unexercised or non-converted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants) beneficially owned by Holder or any other Attribution Party to Holder subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 3(f). For purposes of this Section 6.173(f), beneficial ownership will shall be calculated in accordance with Section 13(d) and the rules and regulations promulgated thereunder under of the Exchange Act. For purposes of this Section 6.17, in determining the number of outstanding shares of Common StockStock Holder may acquire upon the conversion of this Note without exceeding the Maximum Percentage, a Holder may rely on the number of issued and outstanding shares of Common Stock as reflected in (xA) the Company’s most recent document Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or reportother public filing with the Securities and Exchange Commission, as the case may be, filed by the Company with the Commission, (yB) a more recent public announcement by the Company Company, or (zC) any other recent written notice by the CompanyCompany or its transfer agent, in each case if any, setting forth the number of shares of Common Stock issued and outstandingoutstanding (the “Reported Outstanding Share Number”). Upon If the Company receives a Conversion Notice from Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall notify Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Conversion Notice would otherwise cause Holder’s beneficial ownership, as determined pursuant to this Section 3(f), to exceed the Maximum Percentage, Holder must notify the Company of a reduced number of shares of Common Stock to be purchased pursuant to such Conversion Notice. For any reason at any time, upon the written or oral request of a Holder, the Company will shall, within two Business Days one business day, confirm orally and in writing or by electronic mail to such Holder the number of shares of Common Stock then issued and outstanding. In any case, the number of issued and outstanding shares of Common Stock will shall be determined for this purpose after giving effect to the conversion or exercise of securities of the Company, including the Securitiesany portion of this Note, by the applicable Holder and its Affiliates any other Attribution Party since the date as of which such the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to Holder upon conversion of any portion of this Note results in Holder and the other Attribution Parties to Holder being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock was reported(as determined under Section 13(d) of the Exchange Act), announced or confirmed. Any purported delivery the number of shares of Common Stock upon exercise of so issued by which Holder’s and the conversion right on the Securities will be void and have no effect other Attribution Parties to the extent (but only to the extent) that such delivery would result in a Holder (including its Affiliates) becoming the Holder’s aggregate beneficial owner of more than ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and Holder shall not have the power to vote or to transfer the Excess Shares. For purposes of clarity, the shares of Common Stock outstanding at such timeissuable upon conversion of this Note in excess of the Maximum Percentage shall not be deemed to be beneficially owned by Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act. Notwithstanding anything No prior inability to convert any portion of this Note pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of convertibility. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 3(f) to the contrary extent necessary to correct this paragraph (or any portion of this paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 6.17, no Holder will be entitled, with 3(f) or without the Company’s consent, to waive the restrictions set forth make changes or supplements necessary or desirable to properly give effect to such limitation. The limitation contained in this Section 6.17. If the Company is unable paragraph may not be waived and shall apply to exercise its option (pursuant to Section 6.10) to convert some or all each successor holder of the Securities of any Holder due to the limitations described in this Section 6.17, then the Company will have the right at any time to redeem the Securities held by such Holder that the Company is not permitted to convert; provided, however, that the Company may only redeem the Securities after the 2015 Notes are no longer outstanding. If the Company elects to redeem such Securities from such Holder, the redemption shall be made in accordance with and pursuant to the provisions of Article 7. In addition, the Holder will retain its right to voluntarily convert such Holder’s Securities, subject to the limitations set forth in this Section 6.17Note.

Limitations on Conversion. The Company will not effect any conversion (a) Notwithstanding anything to the contrary set forth in Section 4.1 of this Note, at no time may the Securities (including any Mandatory Conversion pursuant Maker issue to Section 6.10), and Holders Holder shares of Common Stock or the Securities will not have the right to Holder convert any all or a portion of the Securities, in excess this Note into shares of that portion of the Securities on conversion of which the sum of (1) Common Stock if the number of shares of Common Stock beneficially owned by a Holder and its Affiliates (to be issued pursuant to such issuance or conversion would exceed, when aggregated with all other than shares of Common Stock which may be deemed beneficially owned through by the ownership Holder at such time and all shares of Common Stock that the Holder is then the beneficial owner of (as determined in accordance with Section 13(d) of the unconverted portion of Exchange Act and the Securities or the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Holder or its Affiliates subject to a limitation on exercise or conversion analogous to the limitations described in this Section 6.17) and (2) rules thereunder), the number of shares of Common Stock issuable that would result in the Holder beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and the rules thereunder) more than 4.999% of all of the Common Stock outstanding at such time; provided, however, that upon the conversion Holder providing the Maker with sixty-one (61) days notice (pursuant to Section 6.2 hereof) (the “4.999% Waiver Notice”) that the Holder would like to waive this Section 4.4(a) with regard to any or all shares of the Common Stock issuable in respect of this Note, this Section 4.4(a) will be of no force or effect with regard to all or a portion of the Securities with respect Note referenced in the 4.999% Waiver Notice. (b) Notwithstanding anything to which the determination contrary set forth in Section 4.1 of this sentence Note, at no time may the Maker issue to Holder shares of Common Stock or the Holder convert all or a portion of this Note into shares of Common Stock if the number of shares of Common Stock to be issued pursuant to such issuance or conversion, when aggregated with all other shares of Common Stock owned by the Holder at such time and all shares of Common Stock that the Holder is being made then the beneficial holder of (including any shares related to the settlement as determined in accordance with Section 13(d) of the Coupon Make Whole Payment Exchange Act and the Additional Amount in connection therewithrules thereunder), would result in beneficial ownership by such the Holder beneficially owning (as determined in accordance with Section 13(d) of the Exchange Act and its Affiliates the rules thereunder) in excess of any amount greater than 9.99.999% (the “Maximum Percentage”) of the then issued and outstanding shares of Common Stock. Except as set forth in Stock outstanding at such time; provided, however, that upon the preceding sentence, for purposes of Holder providing the Maker with with sixty-one (61) days notice (pursuant to Section 6.2 hereof) (the “9.999% Waiver Notice”)that the Holder would like to waive this Section 6.17, beneficial ownership will be calculated in accordance 4.4(b) with Section 13(d) and the rules and regulations promulgated thereunder under the Exchange Act. For purposes of this Section 6.17, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of issued and outstanding regard to any or all shares of Common Stock as reflected issuable in respect of this Note, this Section 4.4(b) will be of no force or effect with regard to all or a portion of the Note referenced in the 9.999% Waiver Notice. (xc) Notwithstanding anything to the Company’s most recent document contrary set forth in this Note, the Maker shall not be obligated to issue any shares of Common Stock upon conversion of this Note or report, as otherwise pursuant to the case may be, filed by terms of this Note if the Company issuance of such shares of Common Stock (taken together with the Commissionissuance of all other shares of Common Stock upon conversion of the Other Notes or exercise of the Warrants or otherwise pursuant to the terms of the Notes, (yor the Warrants) a more recent public announcement by would exceed the Company or (z) any other recent notice by the Company, in each case setting forth the aggregate number of shares of Common Stock issued which the Maker may issue upon exercise or conversion (as the case may be) of the Warrants and outstanding. Upon the written request Notes or otherwise pursuant to the respective terms thereof without breaching the Maker’s obligations under the rules or regulations of a Holder, the Company will within two Business Days confirm in writing to such Holder Trading Market (the number of shares which may be issued without violating such rules and regulations referred to herein as the “Exchange Cap”), except that such limitation shall not apply in the event that the Maker (A) obtains the approval of its stockholders as required by the applicable rules of the Trading Market for issuances of shares of Common Stock then issued in excess of such amount or (B) obtains a written opinion from outside counsel to the Maker that such approval is not required, which opinion shall be reasonably satisfactory to the Holder, provided that the Maker shall promptly, and outstandingin any event within four (4) months from the date of the Conversion Notice, obtain either (A) or (B). In any casethe event that on the date four (4) months from the date of the Conversion Notice (the “Exchange Cap Deadline”), the number of issued and outstanding Maker is prohibited from issuing any shares of Common Stock will be determined for pursuant to this purpose after giving effect Section 4.4(c) (the “Exchange Cap Shares”), the Maker shall pay to the conversion or exercise of securities of the Company, including the Securities, by the applicable Holder and its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported, announced or confirmed. Any purported delivery of shares of Common Stock upon exercise of the conversion right on the Securities will be void and have no effect to the extent (but only to the extent) that such delivery would result in a Holder (including its Affiliates) becoming the beneficial owner of more than the Maximum Percentage of the shares of Common Stock outstanding at such time. Notwithstanding anything to the contrary in this Section 6.17, no Holder will be entitled, with or without the Company’s consent, to waive the restrictions set forth in this Section 6.17. If the Company is unable to exercise its option (pursuant to Section 6.10) to convert some or all of the Securities of any Holder due to the limitations described in this Section 6.17, then the Company will have the right at any time to redeem the Securities held by such Holder that the Company is not permitted to convert; provided, however, that the Company may only redeem the Securities after the 2015 Notes are no longer outstanding. If the Company elects to redeem such Securities from such Holder, as partial liquidated damages and not as a penalty, the redemption shall be made dollar amount due in accordance with and pursuant to the provisions of Article 7. In addition, Section 4.3(c) commencing on the Holder will retain its right to voluntarily convert such Holder’s Securities, subject to Exchange Cap Deadline until the limitations set forth in this Section 6.17date the Exchange Cap Shares are delivered pursuant hereto.

Limitations on Conversion. The Company will not effect Notwithstanding anything to the contrary contained herein, the number of shares that may be acquired by the Holder upon any conversion of this Note (or otherwise in respect hereof) or upon issuance by the Securities (including Corporation of any Mandatory Conversion pursuant Shares or Interest Shares shall be limited to Section 6.10)the extent necessary to insure that, and Holders of following such conversion, the Securities will not have the right to convert any portion of the Securities, in excess of that portion of the Securities on conversion of which the sum of (1) the total number of shares of Common Stock then beneficially owned by a Holder and its Affiliates (other than shares of Common Stock which may be deemed beneficially owned through the ownership of the unconverted portion of the Securities or the unexercised or unconverted portion of any other securities of the Company beneficially owned by such Holder or its Affiliates subject to a limitation on exercise or conversion analogous to the limitations described in this Section 6.17) and (2) the number of shares of Common Stock issuable upon the conversion of the portion of the Securities with respect to which the determination set forth in this sentence is being made (including any shares related to the settlement of the Coupon Make Whole Payment and the Additional Amount in connection therewith), would result in beneficial ownership by such Holder and its Affiliates and any other Persons whose beneficial ownership of any amount greater than 9.9% (Common Stock would be aggregated with the “Maximum Percentage”Holder?s for purposes of Section 13(d) of the then issued and outstanding shares of Common Stock. Except as set forth in the preceding sentence, for purposes of this Section 6.17, beneficial ownership will be calculated in accordance with Section 13(d) and the rules and regulations promulgated thereunder under the Exchange Act. For purposes , does not exceed 4.99% of this Section 6.17, in determining the number of outstanding shares of Common Stock, a Holder may rely on the total number of issued and outstanding shares of Common Stock as reflected (including for such purpose the shares of Common Stock issuable upon such exercise) (the ?Maximum Percentage?). For such purposes, beneficial ownership shall be determined in (xaccordance with Section 13(d) of the Company’s most recent document or report, as Exchange Act and the case may be, filed rules and regulations promulgated thereunder. Each exercise of conversion rights by the Company with the Commission, (y) Holder will constitute a more recent public announcement representation by the Company or (z) any other recent Holder that it has evaluated the limitation set forth in this Section and determined that issuance of the full number of shares of Common Stock requested in such conversion notice by the Company, in each case setting forth is permitted under this Section. This provision shall not restrict the number of shares of Common Stock issued and outstanding. Upon which a Holder may receive or beneficially own in order to determine the written request amount of securities or other consideration that such Holder may receive in the event of a Holdertransaction contemplated in Sections 4(b) or (c) of this Note. By written notice to the Corporation, the Company Holder may (i) waive the provisions of this Section but any such waiver will within two Business Days confirm in writing to not be effective until the 61st day after such Holder the number of shares of Common Stock then issued and outstanding. In any case, the number of issued and outstanding shares of Common Stock will be determined for this purpose after giving effect notice is delivered to the conversion or exercise of securities of the CompanyCorporation, including the Securities, by the applicable nor will any such waiver effect any other Holder and its Affiliates since (ii) increase or decrease the date as Maximum Percentage to any other percentage not in excess of which 9.99% specified in such number of outstanding shares of Common Stock was reported, announced or confirmed. Any purported delivery of shares of Common Stock upon exercise of notice; provided that (A) any such increase will not be effective until the conversion right on the Securities will be void and have no effect sixty-first (61st) day after such notice is delivered to the extent Corporation, and (but B) any such increase or decrease will apply only to the extent) that such delivery would result in a Holder (including its Affiliates) becoming the beneficial owner of more than the Maximum Percentage and not to any other holder of the shares of Common Stock outstanding at such time. Notwithstanding anything to the contrary in this Section 6.17, no Holder will be entitled, with or without the Company’s consent, to waive the restrictions set forth in this Section 6.17. If the Company is unable to exercise its option (pursuant to Section 6.10) to convert some or all of the Securities of any Holder due to the limitations described in this Section 6.17, then the Company will have the right at any time to redeem the Securities held by such Holder that the Company is not permitted to convert; provided, however, that the Company may only redeem the Securities after the 2015 Notes are no longer outstanding. If the Company elects to redeem such Securities from such Holder, the redemption shall be made in accordance with and pursuant to the provisions of Article 7. In addition, the Holder will retain its right to voluntarily convert such Holder’s Securities, subject to the limitations set forth in this Section 6.17Corporation Notes.

Limitations on Conversion. The Company will Notwithstanding SECTION 6(a) or SECTION 6(c) but subject to SECTION 8, the Corporation shall not effect any conversion of the Securities (including any Mandatory Conversion Series 8 Convertible Preferred Shares or otherwise issue Class A Shares pursuant to Section 6.10SECTION 6(a) or SECTION 6(c), and Holders no holder of Series 8 Convertible Preferred Shares will be permitted to convert Series 8 Convertible Preferred Shares into Class A Shares if, and to the extent that, following such conversion, either (i) such holder’s aggregate voting power on a matter being voted on by holders of Class A Shares would exceed 19.9% of the Securities Maximum Voting Power (as defined below) or (ii) such holder would Beneficially Own more than 19.9% of the then outstanding Common Shares; provided, however, that such conversion restriction shall not apply to any conversion in connection with and subject to completion of (A) a public sale of the Class A Shares to be issued upon such conversion, if following consummation of such public sale such holder will not have the right to convert any portion of the Securities, Beneficially Own in excess of that portion 19.9% of the Securities on conversion then outstanding Class A Shares or (B) a bona fide third party tender offer for the Class A Shares issuable thereupon. For purposes of which the sum of (1) foregoing sentence, the number of shares of Common Stock beneficially owned Class A Shares Beneficially Owned by a Holder and its Affiliates (other than shares holder shall include the number of Common Stock which may be deemed beneficially owned through the ownership Class A Shares issuable upon conversion of the Series 8 Convertible Preferred Shares with respect to which a conversion notice has been given, but shall exclude the number of Class A Shares which would be issuable upon conversion or exercise of the remaining, unconverted portion of the Securities or the unexercised or unconverted portion of Series 8 Convertible Preferred Shares and any other securities of the Company beneficially owned Series 9 Alternative Preference Shares Beneficially Owned by such Holder or its Affiliates subject to a limitation on exercise or conversion analogous to the limitations described in this Section 6.17) and (2) the number of shares of Common Stock issuable upon the conversion of the portion of the Securities with respect to which the determination set forth in this sentence is being made (including any shares related to the settlement of the Coupon Make Whole Payment and the Additional Amount in connection therewith), would result in beneficial ownership by such Holder and its Affiliates of any amount greater than 9.9% (the “Maximum Percentage”) of the then issued and outstanding shares of Common Stock. Except as set forth in the preceding sentence, for purposes of this Section 6.17, beneficial ownership will be calculated in accordance with Section 13(d) and the rules and regulations promulgated thereunder under the Exchange Act. For purposes of this Section 6.17, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of issued and outstanding shares of Common Stock as reflected in (x) the Company’s most recent document or report, as the case may be, filed by the Company with the Commission, (y) a more recent public announcement by the Company or (z) any other recent notice by the Company, in each case setting forth the number of shares of Common Stock issued and outstandingholder. Upon the written request of a Holderthe holder, the Company will Corporation shall within two (2) Business Days confirm in writing (which may be by email) to such Holder any holder the number of shares of Common Stock Class A Shares, Class B Shares and Class C Shares then issued and outstanding. In connection with any caseconversion and as a condition to the Corporation effecting such conversion, upon request of the number Corporation, a holder of issued and outstanding shares Series 8 Convertible Preferred Shares shall deliver to the Corporation a certificate, signed by a duly authorized officer of Common Stock will be determined for this purpose such holder, no less than twelve (12) Business Days prior to the applicable conversion, certifying that, after giving effect to the conversion or exercise such conversion, (i) such holder’s aggregate voting power on a matter being voted on by holders of securities Class A Shares will not exceed 19.9% of the CompanyMaximum Voting Power or (ii) such holder will not Beneficially Own more than 19.9% of the then outstanding Common Shares. For purposes hereof, including “Maximum Voting Power” means, at the Securitiestime of determination of the Maximum Voting Power, by the applicable Holder and its Affiliates since the date as of which such total number of outstanding votes which may be cast by all shares of Common Stock was reported, announced or confirmed. Any purported delivery of shares of Common Stock upon exercise of the conversion right Corporation’s capital on the Securities will be void and have no effect to the extent (but only to the extent) that such delivery would result in a Holder (including its Affiliates) becoming the beneficial owner of more than the Maximum Percentage of the shares of Common Stock outstanding at such time. Notwithstanding anything to the contrary in this Section 6.17, no Holder will be entitled, with or without the Company’s consent, to waive the restrictions set forth in this Section 6.17. If the Company is unable to exercise its option (pursuant to Section 6.10) to convert some or all of the Securities of any Holder due to the limitations described in this Section 6.17, then the Company will have the right at any time to redeem the Securities held by such Holder that the Company is not permitted to convert; provided, however, that the Company may only redeem the Securities after the 2015 Notes are no longer outstanding. If the Company elects to redeem such Securities from such Holder, the redemption shall be made in accordance with and pursuant to the provisions of Article 7. In addition, the Holder will retain its right to voluntarily convert such Holder’s Securities, matter subject to the limitations vote of the Common Shares and any other securities that constitute Voting Stock voting together as a single class and after giving effect to any limitation on voting power set forth in this Section 6.17herein and the certificate of incorporation or other similar document governing other Voting Stock.