(ii), (iii), (iv) and (v) at any one time; and
provided further that (1) upon the filing of the Initial Shelf Registration as
required hereunder (in the case of clause (a)(i) of this Section 3), (2) upon
the effectiveness of a Shelf Registration as required hereunder (in the case of
clause (a)(ii) of this Section 3), (3) upon the effectiveness of a Shelf
Registration which had ceased to remain effective (in the case of clause
(a)(iii) of this Section 3), (4) upon the effectiveness of a post-effective
amendment as required hereunder (in the case of clause (a)(iv) of this
Section 3), or (5)
7
upon the termination of the Deferral Period that caused the limit on the
aggregate duration of Deferral Periods to be exceeded (in the case of clause
(a)(v) of this Section 3), Liquidated Damages on the Registrable Notes as a
result of such clause shall cease to accrue.
It is understood and agreed that,
notwithstanding any provision to the contrary, no Liquidated Damages shall
accrue on any Registrable Notes that are then covered by, and may be sold under,
an effective Shelf Registration Statement.
Notwithstanding the foregoing, no
Liquidated Damages shall accrue as to any security from and after the earlier of
(x) the date such security ceases to be a Registrable Note and (y) expiration of
the Effectiveness Period.
(B)
NOTWITHSTANDING SECTION 3(A), THE COMPANY, UPON
WRITTEN NOTICE TO THE HOLDERS, SHALL BE PERMITTED TO SUSPEND THE AVAILABILITY OF
A REGISTRATION STATEMENT COVERING THE REGISTRABLE SECURITIES FOR ANY BONA FIDE
REASON WHATSOEVER FOR UP TO 30 CONSECUTIVE DAYS (THE "DEFERRAL PERIOD") IN ANY
90-DAY PERIOD WITHOUT BEING OBLIGATED TO PAY LIQUIDATED DAMAGES; PROVIDED THAT
DEFERRAL PERIODS MAY NOT TOTAL MORE THAN 90 DAYS IN THE AGGREGATE IN ANY
TWELVE-MONTH PERIOD.
THE COMPANY SHALL NOT BE REQUIRED TO SPECIFY IN THE
WRITTEN NOTICE TO THE HOLDERS THE NATURE OF THE EVENT GIVING RISE TO THE
DEFERRAL PERIOD.
(C)
SO LONG AS NOTES REMAIN OUTSTANDING, THE COMPANY
SHALL NOTIFY THE TRUSTEE WITHIN FIVE BUSINESS DAYS AFTER EACH AND EVERY DATE ON
WHICH AN EVENT OCCURS IN RESPECT OF WHICH LIQUIDATED DAMAGES ARE REQUIRED TO BE
PAID.
ANY AMOUNTS OF LIQUIDATED DAMAGES DUE PURSUANT TO CLAUSE (A)(I), (A)(II),
(A)(III), (A)(IV) OR (A)(V) OF THIS SECTION 3 WILL BE PAYABLE IN CASH ON
APRIL 15 AND OCTOBER 15 OF EACH YEAR (EACH, A "DAMAGES PAYMENT DATE"),
COMMENCING WITH THE FIRST SUCH DAMAGES PAYMENT DATE OCCURRING AFTER ANY SUCH
LIQUIDATED DAMAGES COMMENCES TO ACCRUE, TO HOLDERS TO WHOM REGULAR INTEREST IS
PAYABLE ON THE DAMAGES PAYMENT DATE; PROVIDED THAT ANY LIQUIDATED DAMAGES
ACCRUED WITH RESPECT TO ANY NOTE OR PORTION THEREOF CALLED FOR REDEMPTION BY THE
COMPANY ON A REDEMPTION DATE OR CONVERTED INTO UNDERLYING SHARES ON A CONVERSION
DATE PRIOR TO THE DAMAGES PAYMENT DATE, SHALL, IN ANY SUCH EVENT, BE PAID
INSTEAD TO THE HOLDER WHO SUBMITTED SUCH NOTE OR PORTION THEREOF FOR REDEMPTION
OR CONVERSION ON THE APPLICABLE REDEMPTION DATE OR CONVERSION DATE, AS THE CASE
MAY