the date on which the Shelf
Registration Period has expired.
(B)
A REGISTRATION DEFAULT REFERRED TO IN SECTION 8(A)(III) SHALL BE
DEEMED NOT TO HAVE OCCURRED AND BE CONTINUING IN RELATION TO THE SHELF
REGISTRATION STATEMENT OR THE RELATED PROSPECTUS IF (I) SUCH REGISTRATION
DEFAULT HAS OCCURRED SOLELY AS A RESULT OF (X) THE FILING OF A
15
POST-EFFECTIVE AMENDMENT TO SUCH SHELF REGISTRATION STATEMENT TO INCORPORATE
ANNUAL AUDITED FINANCIAL INFORMATION WITH RESPECT TO THE COMPANY WHERE SUCH
POST-EFFECTIVE AMENDMENT IS NOT YET EFFECTIVE AND NEEDS TO BE DECLARED EFFECTIVE
TO PERMIT HOLDERS TO USE THE RELATED PROSPECTUS OR (Y) THE OCCURRENCE OF OTHER
MATERIAL EVENTS OR DEVELOPMENTS WITH RESPECT TO THE COMPANY THAT WOULD NEED TO
BE DESCRIBED IN SUCH SHELF REGISTRATION STATEMENT OR THE RELATED PROSPECTUS AND
(II) IN THE CASE OF CLAUSE (Y) THE COMPANY IS PROCEEDING PROMPTLY AND IN GOOD
FAITH TO AMEND OR SUPPLEMENT SUCH SHELF REGISTRATION STATEMENT AND RELATED
PROSPECTUS TO DESCRIBE SUCH EVENTS; PROVIDED, HOWEVER, THAT IN ANY CASE IF SUCH
REGISTRATION DEFAULT OCCURS FOR A CONTINUOUS PERIOD IN EXCESS OF 30 DAYS IN ANY
THREE-MONTH PERIOD OR AN AGGREGATE OF 120 DAYS IN ANY 12-MONTH PERIOD,
ADDITIONAL DIVIDENDS SHALL BE PAYABLE IN ACCORDANCE WITH THE ABOVE PARAGRAPH
FROM THE DAY SUCH REGISTRATION DEFAULT OCCURRED UNTIL SUCH REGISTRATION DEFAULT
IS CURED OR, IF EARLIER, THE SHELF REGISTRATION PERIOD HAS EXPIRED.
(C)
ANY AMOUNTS OF ADDITIONAL DIVIDENDS DUE PURSUANT TO SECTION 8(A)
WILL BE PAYABLE IN CASH ON THE REGULAR DIVIDEND PAYMENT DATES (OR SUCH OTHER
TIME AS PROVIDED IN THE CERTIFICATE OF DESIGNATIONS FOR THE PAYMENT OF DIVIDENDS
OR DISTRIBUTIONS) WITH RESPECT TO THE SECURITIES. THE AMOUNT OF ADDITIONAL
DIVIDENDS WILL BE DETERMINED BY MULTIPLYING THE APPLICABLE ADDITIONAL DIVIDENDS
BY THE AGGREGATE LIQUIDATION PREFERENCE OF THE SECURITIES AND FURTHER MULTIPLIED
BY A FRACTION, THE NUMERATOR OF WHICH IS THE NUMBER OF DAYS SUCH ADDITIONAL
DIVIDENDS WERE APPLICABLE DURING SUCH PERIOD (DETERMINED ON THE BASIS OF A
360-DAY YEAR COMPRISED OF TWELVE 30-DAY MONTHS), AND THE DENOMINATOR OF WHICH IS
360.
9.
RULES 144 AND 144A. THE COMPANY SHALL USE ALL REASONABLE BEST
EFFORTS TO FILE THE REPORTS REQUIRED TO BE FILED BY IT UNDER THE SECURITIES ACT
AND THE EXCHANGE ACT IN A TIMELY MANNER AND, IF AT ANY TIME THE COMPANY IS NOT
REQUIRED TO FILE SUCH REPORTS, IT WILL, UPON THE REQUEST OF ANY HOLDER OF
REGISTRABLE SECURITIES, MAKE PUBLICLY AVAILABLE OTHER INFORMATION SO LONG AS
NECESSARY TO PERMIT SALES OF THEIR SECURITIES PURSUANT TO RULES 144 AND 144A OF
THE SECURITIES ACT, OR ANY SUCCESSOR REGULATION OR STATUTE THERETO. THE COMPANY
COVENANTS THAT IT WILL TAKE SUCH FURTHER ACTION AS ANY HOLDER MAY REASONABLY
REQUEST, ALL TO THE EXTENT REQUIRED FROM TIME TO TIME TO ENABLE SUCH HOLDER TO
SELL SECURITIES WITHOUT REGISTRATION UNDER THE SECURITIES ACT WITHIN THE
LIMITATION OF THE EXEMPTIONS PROVIDED BY RULES 144 AND 144A (INCLUDING THE
REQUIREMENTS OF RULE 144A(D)(4)). THE COMPANY WILL PROVIDE A COPY OF THIS
AGREEMENT TO PROSPECTIVE PURCHASERS OF SECURITIES