Common use of Note Payments Clause in Contracts

Note Payments. Notwithstanding the terms of the Notes, Borrower covenants and agrees to make the following payments to Lender (the “Restructure”): (a) a payment in the amount of $50,000.00 on or before December 15, 2015; (b) a payment in the amount of $50,000.00 on or before January 15, 2016; (c) a payment in the amount of $50,000.00 on or before February 15, 2016; and (d) a payment equal to the remaining aggregate Outstanding Balance of the Notes on or before March 15, 2016 (collectively, the “Note Payments”). Unless specified otherwise by Lender in a written notice delivered to Borrower (which notice Lender may provide in its sole and absolute discretion), all Note Payments shall be applied first against the Outstanding Balance of the November Note until the November Note has been paid in full and thereafter against the June Note until the June Note is paid in full. Note Payments may be made in cash or shares of Borrower’s Common Stock (“Payment Shares”); provided that any portion of any Note Payment that is paid via Payment Shares shall be subject to the following conditions: (i) no Note Payment may be made via Payment Shares if there is an Equity Conditions Failure, which failure is not waived in writing by Lender, as of the date Borrower seeks to deliver the applicable Payment Shares to Lender; (ii) the number of Payment Shares deliverable with respect to any portion of any Note Payment made in Common Stock shall be equal to the amount of the Note Payment being paid in Payment Shares divided by the then-current Installment Conversion Price (as calculated pursuant to Section 8.1 of the November Note); (iii) all Payment Shares must be delivered in the manner set forth in Section 9 of the November Note; (iv) the applicable shares of Common Stock must have been received by Lender or its broker, as applicable, and become Free Trading (as defined below) on or before the applicable Payment Date for such portion of the applicable Note Payment to be deemed to have been timely made; and (v) on the date that is twenty (20) Trading Days from each date Borrower delivers Free Trading Payment Shares to Lender, there shall be a true-up where Borrower shall deliver to Lender additional shares of Common Stock on the terms and in the manner set forth in Section 11 of the November Note, provided that for purposes hereof, all references to “Installment Conversion Shares” shall be deemed to refer to Payment Shares. For the avoidance of doubt, the conditions for payments of Note Payments via Payment Shares set forth above in this Section 2 shall apply to Note Payments made with respect to both the November Note and the June Note and to the extent any necessary term related to the payment of a Note Payment via Payment Shares is not addressed in this Agreement, but is addressed in the November Note, the provision of the November Note shall apply (provided that if there is any conflict between a term set forth herein and a term set forth in the November Note, this Agreement shall govern), even if the November Note has been paid in full. For purposes hereof, the term “Free Trading” means that (y) the applicable Payment Shares have been cleared and approved for public resale by the compliance departments of Lender’s brokerage firm and the clearing firm servicing such brokerage, and (z) such Payment Shares are held in the name of the clearing firm servicing Lender’s brokerage firm and have been deposited into such clearing firm’s account for the benefit of Lender.

Note Payments. Notwithstanding Payments under the terms of the Notes, Borrower covenants Note shall be due and agrees to make the following payments to Lender (the “Restructure”): payable as follows: (a) a payment in Except as specifically set forth herein, interest on the entire principal amount of $50,000.00 the Loan shall accrue at the Eurodollar Rate and shall be due and payable monthly, in arrears on or before December 15, 2015; the first day of each and every calendar month (for the prior month). The entire principal balance of the Loan shall be due and payable on the Maturity Date. (b) a payment in Additional interest ("Additional Eurodollar Interest") on the amount Principal Amount shall be payable on the last day of $50,000.00 on or before January 15each Eurodollar Interest Period, 2016; (c) a payment in the amount at an annual rate of $50,000.00 on or before February 15interest equal, 2016; and (d) a payment equal at all times during such Eurodollar Interest Period, to the remaining aggregate Outstanding Balance excess of the Notes on or before March 15, 2016 (collectively, the “Note Payments”). Unless specified otherwise by Lender in a written notice delivered to Borrower (which notice Lender may provide in its sole and absolute discretion), all Note Payments shall be applied first against the Outstanding Balance of the November Note until the November Note has been paid in full and thereafter against the June Note until the June Note is paid in full. Note Payments may be made in cash or shares of Borrower’s Common Stock (“Payment Shares”); provided that any portion of any Note Payment that is paid via Payment Shares shall be subject to the following conditions: (i) no Note Payment may be made via Payment Shares if there is an Equity Conditions Failurethe rate obtained by dividing the Offered Rate for such Eurodollar Interest Period by a percentage equal to 100% , which failure is not waived in writing minus the reserve percentage applicable during such Eurodollar Interest Period under regulations issued from time to time by Lender, as the Board of Governors of the date Borrower seeks Federal Reserve System (or if more than one such percentage is so applicable, minus the daily average for such percentages for those days in such Eurodollar Interest Period during which any such percentage shall be so applicable) for determining the maximum reserve requirement (including any marginal reserve requirement) for Lender in respect of liabilities or assets consisting of or including Eurocurrency liabilities (as defined in Regulation D of the Board of Governors of the Federal Reserve System as in effect from time to deliver the applicable Payment Shares to Lender; time), over (ii) the number of Payment Shares deliverable with respect to any portion of any Note Payment made in Common Stock shall be equal Offered Rate for such Eurodollar Interest Period. A certificate as to the amount of any such Additional Eurodollar Interest due hereunder prepared by Lender and submitted to Borrower shall be conclusive as to the Note Payment being paid in Payment Shares divided by the then-current Installment Conversion Price (as calculated pursuant to Section 8.1 of the November Note); (iii) all Payment Shares must be delivered in the manner matters set forth in Section 9 of the November Note; (iv) the applicable shares of Common Stock must have been received by Lender or its brokertherein, as applicable, and become Free Trading (as defined below) on or before the applicable Payment Date for such portion of the applicable absent manifest error. The Note Payment to shall not be deemed to have been timely made; and (v) on paid and/or satisfied in full until all Additional Eurodollar Interest payable hereunder shall have been paid. In addition to all payments of interest due hereunder, Borrower shall, from time to time, during any Eurodollar Interest Period in which the date that Eurodollar Rate is twenty (20) Trading Days from each date Borrower delivers Free Trading Payment Shares in effect hereunder, pay to Lender upon demand by Lender, there additional amounts (the "Additional Amounts") sufficient to compensate Lender for (i) any loss, cost or expense incurred by reason of the liquidation or reemployment of deposit or other funds acquired by Lender, or incurred by reason of Lender's failure to acquire deposits or funds it shall be have arranged to acquire, to fund or maintain the Principal Amount during any Eurodollar Interest Period as a true-up where Borrower shall deliver result of (a) any payment or prepayment of all or any portion of the Principal Amount of the Note, whether voluntary or involuntary (including, without limitation, any payment or prepayment resulting from an acceleration of the Note), or (b) any involuntary conversion, from the Eurodollar Rate to Lender additional shares of Common Stock the Prime Rate on a day other than a day on which such conversion is otherwise permitted under the terms and in the manner set forth in Section 11 of the November Note, provided that for purposes hereof, all references to “Installment Conversion Shares” shall be deemed to refer to Payment Shares. For the avoidance of doubt, the conditions for payments of Note Payments via Payment Shares set forth above in this Section 2 shall apply to Note Payments made with respect to both the November Note and the June Note and to the extent any necessary term related to the payment of a Note Payment via Payment Shares is not addressed in this Agreement, but is addressed in the November Note, the provision of the November Note shall apply (provided that if there is any conflict between a term set forth herein and a term set forth in the November Note, this Agreement shall govern), even if the November Note has been paid in full. For purposes hereof, the term “Free Trading” means that (y) the applicable Payment Shares have been cleared and approved for public resale by the compliance departments of Lender’s brokerage firm and the clearing firm servicing such brokerage, and (z) such Payment Shares are held in the name of the clearing firm servicing Lender’s brokerage firm and have been deposited into such clearing firm’s account for the benefit of Lender.hereof ; and

Note Payments. Notwithstanding Borrower shall make the terms following cash payments to Lender (each, a “Note Payment”): (a) The Original Principal Balance shall accrue interest at the annual rate of 8%, compounded monthly, commencing as of June 1, 2012. Borrower agrees to pay to Lender monthly payments in the Notesamount of $37,018.31 on the 1st day of each calendar month, commencing on October 1, 2012, and continuing thereafter until September 1, 2014 (each, a “Monthly Amortizing Payment”). An amortization schedule is attached hereto as Schedule A. (b) In addition to the Monthly Amortizing Payments, Borrower covenants and agrees to shall make the following payments (each, an “Additional Payment”) to Lender each month during which the conditions to such Additional Payment being paid are satisfied; provided, however that for any month during which the conditions are satisfied for both Additional Payments to be made, Borrower shall only be obligated to make the higher of the two Additional Payments. When required, each such Additional Payment shall be payable together with the Monthly Amortizing Payment for the given month. (i) If the “Restructure”): aggregate total daily dollar trading volume of the Common Stock for the 22 Trading Days (aas defined in the Note) a immediately preceding the date each Monthly Amortizing Payment is due is greater than $2,500,000, then Borrower shall make one additional payment in the amount of the Monthly Amortizing Payment together with the Monthly Amortizing Payment due for that month. (ii) If during any calendar month immediately preceding the date a Monthly Amortizing Payment is due, the aggregate total amount of all of Borrower’s draws (“Draws”) during such calendar month on any and all equity lines of credit available to Borrower (whether now existing or that may exist hereafter), including without limitation that certain credit facility between Borrower and Dutchess Opportunity Fund II, LP dated November 30, 2011, exceeds $50,000.00 on or before December 15200,000.00, 2015; (b) a payment in then, together with the Monthly Amortizing Payment due for that month, Borrower shall pay to Lender 31.6% of the excess of the amount of such Draws during such month over $50,000.00 on or before January 15200,000.00. In furtherance of the foregoing, 2016; Borrower shall deliver to Lender each month together with its Monthly Amortizing Payment a certificate certifying to Lender the amount of Borrower’s Draws during the preceding month. (c) The Monthly Amortizing Payments and the Additional Payments, less any accrued interest represented by such payments, shall reduce the Original Principal Balance. After a monthly payment in to the Lender of the Monthly Amortizing Payment and any Additional Payment, if the remaining Original Principal Balance plus accrued interest is less than the amount of $50,000.00 the next Monthly Amortizing Payment set forth above, then on or before February 15, 2016; and (d) a payment equal to the remaining aggregate Outstanding Balance date of the Notes on or before March 15, 2016 next Monthly Amortizing Payment (collectivelythe “Final Payment Date”), the “Note Payments”). Unless specified otherwise by Lender in a written notice delivered to Borrower (which notice Lender may provide in its sole and absolute discretion), all Note Payments shall be applied first against the Outstanding Balance of the November Note until the November Note has been paid in full and thereafter against the June Note until the June Note is paid in full. Note Payments may be made in cash or shares of Borrower’s Common Stock (“Monthly Amortizing Payment Shares”); provided that any portion of any Note Payment that is paid via Payment Shares shall be subject to the following conditions: (i) no Note Payment may be made via Payment Shares if there is an Equity Conditions Failure, which failure is not waived in writing by Lender, as of the date Borrower seeks to deliver the applicable Payment Shares to Lender; (ii) the number of Payment Shares deliverable with respect to any portion of any Note Payment made in Common Stock shall be equal to the remaining Original Principal Balance plus accrued interest. (d) On the earlier of September 1, 2014 or the Final Payment Date, in addition to the final Monthly Amortizing Payment due on such date, the Borrower shall pay to the Lender the amount of the Note Payment being Standstill Effect and any other amounts due under the Notes and not yet paid in Payment Shares divided by the then-current Installment Conversion Price (as calculated pursuant to Section 8.1 of such date. The amount of the November Note); (iii) all Payment Shares must be delivered in Standstill Effect shall not accrue interest prior to the manner set forth in Section 9 of the November Note; (iv) the applicable shares of Common Stock must have been received by Lender or its broker, as applicable, and become Free Trading (as defined below) date on or before the applicable Payment Date for such portion of the applicable Note Payment which it is required to be deemed to have paid, but thereafter, if such Standstill Effect has not been timely made; and paid on time, the Standstill Effect shall accrue interest at 8% until such time as it is paid. (ve) on the date that is twenty (20) Trading Days from each date Borrower delivers Free Trading Payment Shares to Lender, there shall be a true-up where Borrower shall deliver to Lender additional shares of Common Stock on the terms and in the manner set forth in Section 11 of the November Note, provided that for purposes hereof, all references to “Installment Conversion Shares” shall be deemed to refer to Payment Shares. For the avoidance of doubt, the conditions for payments of Note Payments via Payment Shares set forth above no provision in this Section 2 Agreement or any other agreement shall apply alter, impair or render conditional the obligation of Borrower, which is absolute and unconditional, to Note Payments made with respect to both make the November Note Monthly Amortizing Payments, the Additional Payments, and the June Note and to the extent any necessary term related to the payment of a Note Payment via Payment Shares is not addressed in this Agreementthe Standstill Effect at the place, but is addressed at the time, and in the November Note, the provision of the November Note shall apply (provided that if there is any conflict between a term set forth currency herein and a term set forth in the November Note, this Agreement shall govern), even if the November Note has been paid in full. For purposes hereof, the term “Free Trading” means that (y) the applicable Payment Shares have been cleared and approved for public resale by the compliance departments of Lender’s brokerage firm and the clearing firm servicing such brokerage, and (z) such Payment Shares are held in the name of the clearing firm servicing Lender’s brokerage firm and have been deposited into such clearing firm’s account for the benefit of Lenderprescribed.

Note Payments. Notwithstanding the terms of the Notes, Borrower covenants and agrees to shall make the following payments to Lender (each, a “Note Payment”), which Note Payments shall be made in the “Restructure”): form of cash. (a) a payment Borrower agrees to pay to Lender monthly payments in the amount of $50,000.00 33,238.12 on or before December 15the 1st day of each calendar month, 2015; commencing on October 1, 2012, and continuing thereafter until September 1, 2014 (the “Final Payment Date”) (each, a “Monthly Amortizing Payment”, and together, the “Monthly Amortization Payments”). (b) a payment in No later than the amount earlier of $50,000.00 on or before January 15, 2016; (c) a payment in the amount of $50,000.00 on or before February 15, 2016; and (d) a payment equal to the remaining aggregate Outstanding Balance of the Notes on or before March 15, 2016 (collectively, the “Note Payments”). Unless specified otherwise by Lender in a written notice delivered to Borrower (which notice Lender may provide in its sole and absolute discretion), all Note Payments shall be applied first against the Outstanding Balance of the November Note until the November Note has been paid in full and thereafter against the June Note until the June Note is paid in full. Note Payments may be made in cash or shares of Borrower’s Common Stock (“Payment Shares”); provided that any portion of any Note Payment that is paid via Payment Shares shall be subject to the following conditions: (i) no Note the Final Payment may be made via Payment Shares if there is an Equity Conditions FailureDate, which failure is not waived in writing by Lender, as of the date Borrower seeks to deliver the applicable Payment Shares to Lender; and (ii) the number of Payment Shares deliverable with respect to any portion of any Note Payment made in Common Stock shall be equal to first date on which all amounts required by the amount of the Note Payment being Monthly Amortization Payments are paid in Payment Shares divided by the then-current Installment Conversion Price (as calculated pursuant to Section 8.1 of the November Note); (iii) all Payment Shares must be delivered in the manner set forth in Section 9 of the November Note; (iv) the applicable shares of Common Stock must have been received by Lender or its brokerfull, as applicable, and become Free Trading (as defined below) on or before the applicable Payment Date for such portion of the applicable Note Payment to be deemed to have been timely made; and (v) on the date that is twenty (20) Trading Days from each date Borrower delivers Free Trading Payment Shares shall pay to Lender, there in one payment, the Standstill Effect, together with all principal and interest and any other amounts due under this Agreement or the Note and not yet paid as of such date (the “Final Payment”). For purposes of clarity, the Final Payment shall be a true-up where Borrower shall deliver in addition to Lender additional shares of Common Stock on the terms and in the manner set forth in Section 11 of the November NoteMonthly Amortizing Payment due September 1, provided that for purposes hereof, all references to “Installment Conversion Shares” shall be deemed to refer to Payment Shares2014. For the avoidance of doubt, no provision in this Agreement or any other agreement shall alter, impair or render conditional the obligation of Borrower, which is absolute and unconditional, to make the Monthly Amortizing Payments at the place, at the time, and in the currency herein prescribed. (c) In addition to the Monthly Amortizing Payments, Borrower shall make the following payments (each, an “Additional Payment”) to Lender each month during which the conditions to such Additional Payment being paid are satisfied; provided, however that for payments any month during which the conditions are satisfied for both Additional Payments to be made, Borrower shall only be obligated to make the higher of Note Payments via the two Additional Payments. When required, each such Additional Payment Shares set forth above in this Section 2 shall apply to Note Payments made be payable together with respect to both the November Note and Monthly Amortizing Payment for the June Note and to given month. (i) If the extent any necessary term related to aggregate total daily dollar trading volume of the payment of a Note Payment via Payment Shares is not addressed in this Agreement, but is addressed Common Stock for the 22 Trading Days (as defined in the November Note) immediately preceding the date each Monthly Amortizing Payment is due is greater than $2,500,000, then Borrower shall make one additional payment in the amount of the Monthly Amortizing Payment together with the Monthly Amortizing Payment due for that month. (ii) If during any calendar month immediately preceding the date a Monthly Amortizing Payment is due, the provision aggregate total amount of all of Borrower’s draws (“Draws”) during such calendar month on any and all equity lines of credit available to Borrower (whether now existing or that may exist hereafter), including without limitation that certain credit facility between Borrower and Dutchess Opportunity Fund II, LP dated November 30, 2011, exceeds $200,000.00, then, together with the Monthly Amortizing Payment due for that month, Borrower shall pay to Lender 28.4% of the November Note shall apply (provided that if there is any conflict between a term set forth herein and a term set forth in the November Note, this Agreement shall govern), even if the November Note has been paid in full. For purposes hereof, the term “Free Trading” means that (y) the applicable Payment Shares have been cleared and approved for public resale by the compliance departments of Lender’s brokerage firm and the clearing firm servicing such brokerage, and (z) such Payment Shares are held in the name excess of the clearing firm servicing Lenderamount of such Draws during such month over $200,000.00. In furtherance of the foregoing, Borrower shall deliver to Lender each month together with its Monthly Amortizing Payment a certificate certifying to Lender the amount of Borrower’s brokerage firm and have been deposited into such clearing firm’s account for Draws during the benefit of Lenderpreceding month.

Note Payments. Notwithstanding the terms of the Notes, Borrower covenants and agrees to make the following payments to Lender (the “Restructure”): (a) All Loans made by Lender to the Borrower shall be evidenced by a single Note dated as of the Closing Date, delivered and payable to Lender in a principal amount equal to Lender's Commitment as of the Closing Date. (b) The outstanding principal balance of each and every Loan, as evidenced by the Note, shall mature and be fully due and payable on the Maturity Date. (c) Subject to SECTION 9.6 hereof, the Borrower hereby agrees to pay accrued interest on the unpaid principal balance of the Loans on the Interest Payment Dates, commencing the first of such dates to occur after the date hereof. After the Maturity Date, accrued and unpaid interest on the Loans shall be payable on demand. (d) To effect payment of accrued interest owing on the Loans as of the Interest Payment Dates, subject to the provisions of SECTIONS 2.1 AND 4.1 hereof, the Lender may, but shall not be obligated to, make a Loan to pay in full the amount of $50,000.00 accrued interest owing and payable on or before December 15, 2015; (b) a payment in the amount of $50,000.00 on or before January 15, 2016; (c) a payment in the amount of $50,000.00 on or before February 15, 2016; and (d) a payment equal to the remaining aggregate Outstanding Balance Loans as of the Notes on or before March 15, 2016 (collectively, the “Note Payments”). Unless specified otherwise by Lender in a written notice delivered to Borrower (which notice Lender may provide in its sole and absolute discretion), all Note Payments shall be applied first against the Outstanding Balance of the November Note until the November Note has been paid in full and thereafter against the June Note until the June Note is paid in full. Note Payments may be made in cash or shares of Borrower’s Common Stock (“respective Interest Payment Shares”); provided that any portion of any Note Payment that is paid via Payment Shares shall be subject to the following conditions: Date if (i) no Note Payment may such Loan is to be made via Payment Shares if there is an Equity Conditions Failureprior to the Maturity Date, which failure is not waived in writing by Lender, as of the date Borrower seeks to deliver the applicable Payment Shares to Lender; (ii) the number of Payment Shares deliverable with respect to any portion of any Note Payment made in Common Stock shall Availability would be equal to the amount of the Note Payment being paid in Payment Shares divided by the then-current Installment Conversion Price (as calculated pursuant or greater than zero after giving effect to Section 8.1 of the November Note); such Loan, and (iii) all Payment Shares must be delivered in the manner set forth in Section 9 no Default or Event of Default shall have occurred which is then continuing. The inability of the November Note; (iv) Lender to cause a payment of any accrued interest owing on the Loans on any Interest Payment Date as of the respective due date thereof in accordance with the preceding sentence shall not in any way whatsoever effect the Borrower's obligation to otherwise pay such amounts in accordance with the applicable shares of Common Stock must have been received by Lender terms hereof or its broker, as applicable, and become Free Trading (as defined below) on or before the applicable Payment Date for such portion of the applicable Note Payment to be deemed to have been timely made; and (v) on the date that is twenty (20) Trading Days from each date Borrower delivers Free Trading Payment Shares to Lender, there shall be a true-up where Borrower shall deliver to Lender additional shares of Common Stock on the terms and in the manner set forth in Section 11 of the November Note, provided that for purposes hereof, all references to “Installment Conversion Shares” shall be deemed to refer to Payment Shares. For the avoidance of doubt, the conditions for payments of Note Payments via Payment Shares set forth above in this Section 2 shall apply to Note Payments made with respect to both the November Note and the June Note and to the extent any necessary term related to the payment of a Note Payment via Payment Shares is not addressed in this Agreement, but is addressed in the November Note, the provision of the November Note shall apply (provided that if there is any conflict between a term set forth herein and a term set forth in the November Note, this Agreement shall govern), even if the November Note has been paid in full. For purposes hereof, the term “Free Trading” means that (y) the applicable Payment Shares have been cleared and approved for public resale by the compliance departments of Lender’s brokerage firm and the clearing firm servicing such brokerage, and (z) such Payment Shares are held in the name of the clearing firm servicing Lender’s brokerage firm and have been deposited into such clearing firm’s account for the benefit of Lenderother Loan Documents.