TO COOPERATE WITH AN UNDERWRITTEN OFFERING UNLESS A
REQUEST FOR AN UNDERWRITTEN OFFERING IS MADE BY HOLDERS OF 33 1/3% OF TRANSFER
RESTRICTED SECURITIES OUTSTANDING, (II) THE COMPANY SHALL NOT BE OBLIGATED TO
COOPERATE WITH MORE THAN ONE UNDERWRITTEN OFFERING PURSUANT TO THIS AGREEMENT,
(III) UPON RECEIPT OF A REQUEST TO PREPARE AND FILE AN AMENDMENT OR SUPPLEMENT
TO A REGISTRATION STATEMENT AND PROSPECTUS IN CONNECTION WITH AN UNDERWRITTEN
OFFERING, THE COMPANY MAY DELAY THE FILING OF ANY SUCH AMENDMENT OR SUPPLEMENT
FOR UP TO 120 DAYS IF THE COMPANY IN GOOD FAITH HAS A VALID BUSINESS REASON FOR
SUCH DELAY; PROVIDED, HOWEVER THAT NOTHING IN THIS CLAUSE (III) LIMITS THE
COMPANY'S OBLIGATIONS UNDER SECTION 1, AND (IV) THE COMPANY SHALL NOT BE
REQUIRED TO PAY MORE THAN AN AGGREGATE OF $200,000 OF REGISTRATION-RELATED
EXPENSES, IN ADDITION TO INTERNAL EXPENSES OF THE COMPANY (INCLUDING, WITHOUT
LIMITATION, SALARIES OF OFFICERS AND EMPLOYEES PERFORMING LEGAL AND ACCOUNTING
DUTIES) IN CONNECTION WITH ANY SUCH UNDERWRITTEN OFFERING.
9.
MISCELLANEOUS.
(A)
REMEDIES.
THE COMPANY ACKNOWLEDGES AND AGREES THAT ANY FAILURE BY THE
COMPANY TO COMPLY WITH ITS OBLIGATIONS UNDER SECTION 1 AND 2 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 OBLIGATIONS UNDER SECTIONS 1 AND
2 HEREOF. THE COMPANY FURTHER AGREES TO WAIVE THE DEFENSE IN ANY ACTION FOR
SPECIFIC PERFORMANCE THAT A REMEDY AT LAW WOULD BE ADEQUATE.
21
(B)
NO INCONSISTENT AGREEMENTS.
THE COMPANY WILL NOT ON OR AFTER THE DATE OF
THIS AGREEMENT ENTER INTO ANY AGREEMENT WITH RESPECT TO ITS
U.S. DOLLAR-DENOMINATED DEBT SECURITIES THAT ARE SUBSTANTIALLY SIMILAR TO THE
SECURITIES, WHICH AGREEMENT IS INCONSISTENT WITH THE RIGHTS GRANTED TO THE
HOLDERS IN THIS AGREEMENT OR ENTER INTO ANY AGREEMENT THAT OTHERWISE CONFLICTS
WITH THE PROVISIONS HEREOF.
THE RIGHTS GRANTED TO THE HOLDERS HEREUNDER DO NOT
IN ANY WAY CONFLICT WITH AND ARE NOT INCONSISTENT WITH THE RIGHTS GRANTED TO THE
HOLDERS OF THE COMPANY'S SECURITIES UNDER ANY AGREEMENT IN EFFECT ON THE DATE
HEREOF.
(C)
AMENDMENTS AND WAIVERS.
THE PROVISIONS OF THIS AGREEMENT MAY NOT BE
AMENDED, MODIFIED OR SUPPLEMENTED, AND WAIVERS OR CONSENTS TO DEPARTURES FROM
THE PROVISIONS HEREOF MAY NOT BE GIVEN, EXCEPT BY THE COMPANY AND THE WRITTEN
CONSENT OF THE MAJORITY HOLDERS AFFECTED BY SUCH AMENDMENT, MODIFICATION,
SUPPLEMENT, WAIVER OR CONSENTS.
(D)
NOTICES.
ALL NOTICES AND OTHER COMMUNICATIONS PROVIDED FOR OR PERMITTED
HEREUNDER SHALL BE MADE IN WRITING BY HAND DELIVERY, FIRST-CLASS MAIL, FACSIMILE
TRANSMISSION, OR AIR COURIER WHICH GUARANTEES OVERNIGHT DELIVERY:
(1)
IF TO A HOLDER OF THE SECURITIES, AT THE MOST CURRENT ADDRESS GIVEN BY SUCH
HOLDER TO THE COMPANY.
(2)
IF TO THE INITIAL PURCHASERS;
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York,