rate
on the Registrable Securities will be increased by (i) 0.25% per annum for the
first 90-day period payable commencing from one day after the Shelf Additional
Interest Date and (ii) an additional 0.25% per annum with respect to each
subsequent 90-day period, in each case until the Shelf Registration Statement
becomes effective or the Securities become freely tradable under the Securities
Act, up to a maximum increase of 1.00% per annum.
8
If the Shelf Registration Statement, if required hereby, has become effective
and thereafter either ceases to be effective or the Prospectus contained therein
ceases to be usable, in each case whether or not permitted by this Agreement, at
any time during the Shelf Effectiveness Period, and such failure to remain
effective or usable exists for more than 30 days (whether or not consecutive) in
any 12-month period, then the interest rate on the Registrable Securities will
be increased by 1.00% per annum commencing on the 31st day in such 12-month
period and ending on such date that the Shelf Registration Statement has again
become effective or the Prospectus again becomes usable.
(E)
WITHOUT LIMITING THE REMEDIES AVAILABLE TO THE INITIAL PURCHASERS
AND THE HOLDERS, THE COMPANY AND THE GUARANTORS ACKNOWLEDGE THAT ANY FAILURE BY
THE COMPANY OR THE GUARANTORS TO COMPLY WITH THEIR OBLIGATIONS UNDER SECTION
2(A) AND SECTION 2(B) HEREOF MAY RESULT IN MATERIAL IRREPARABLE INJURY TO THE
INITIAL PURCHASERS OR THE HOLDERS FOR WHICH THERE IS NO ADEQUATE REMEDY AT LAW,
THAT IT WILL NOT BE POSSIBLE TO MEASURE DAMAGES FOR SUCH INJURIES PRECISELY AND
THAT, IN THE EVENT OF ANY SUCH FAILURE, THE INITIAL PURCHASERS OR ANY HOLDER MAY
OBTAIN SUCH RELIEF AS MAY BE REQUIRED TO SPECIFICALLY ENFORCE THE COMPANY'S AND
THE GUARANTORS' OBLIGATIONS UNDER SECTION 2(A) AND SECTION 2(B) HEREOF.
(F)
THE COMPANY REPRESENTS, WARRANTS AND COVENANTS THAT IT (INCLUDING
ITS AGENTS AND REPRESENTATIVES) WILL NOT PREPARE, MAKE, USE, AUTHORIZE, APPROVE
OR REFER TO ANY FREE WRITING PROSPECTUS.
3.
REGISTRATION PROCEDURES. (A) IN CONNECTION WITH THEIR OBLIGATIONS
PURSUANT TO SECTION 2(A) AND SECTION 2(B) HEREOF, THE COMPANY AND THE GUARANTORS
SHALL AS EXPEDITIOUSLY AS POSSIBLE:
(I)
PREPARE AND FILE WITH THE SEC A REGISTRATION STATEMENT ON THE
APPROPRIATE FORM UNDER THE SECURITIES ACT, WHICH FORM (X) SHALL BE SELECTED BY
THE COMPANY AND THE GUARANTORS, (Y) SHALL, IN THE CASE OF A SHELF REGISTRATION,
BE AVAILABLE FOR THE SALE OF THE REGISTRABLE SECURITIES BY THE HOLDERS THEREOF
AND (Z) SHALL COMPLY AS TO FORM IN ALL MATERIAL RESPECTS WITH THE REQUIREMENTS
OF THE APPLICABLE FORM AND INCLUDE ALL FINANCIAL STATEMENTS REQUIRED BY THE SEC
TO BE FILED THEREWITH; AND USE THEIR REASONABLE BEST EFFORTS TO CAUSE SUCH
REGISTRATION STATEMENT TO BECOME EFFECTIVE AND REMAIN EFFECTIVE FOR THE
APPLICABLE PERIOD IN ACCORDANCE WITH SECTION 2 HEREOF;
(II)
PREPARE AND FILE WITH THE SEC SUCH AMENDMENTS AND POST-EFFECTIVE
AMENDMENTS TO EACH REGISTRATION STATEMENT AS MAY BE NECESSARY TO KEEP SUCH
REGISTRATION STATEMENT EFFECTIVE FOR THE APPLICABLE PERIOD IN ACCORDANCE WITH
SECTION 2 HEREOF