PRIOR TO
THE TIME SUCH LIST IS FURNISHED,
in each case to the extent such information is in the possession or control of
the Company and has not otherwise been received by the Trustee in its capacity
as Securities Registrar.
SECTION 7.2
Preservation of Information, Communications to Holders.
(A)
THE TRUSTEE SHALL PRESERVE, IN AS CURRENT A FORM AS IS REASONABLY
PRACTICABLE, THE NAMES AND ADDRESSES OF HOLDERS CONTAINED IN THE MOST RECENT
LIST FURNISHED TO THE TRUSTEE AS PROVIDED IN SECTION 7.1 AND THE NAMES AND
ADDRESSES OF HOLDERS RECEIVED BY THE TRUSTEE IN ITS CAPACITY AS SECURITIES
REGISTRAR.
THE TRUSTEE MAY DESTROY ANY LIST FURNISHED TO IT AS PROVIDED IN
SECTION 7.1 UPON RECEIPT OF A NEW LIST SO FURNISHED.
(B)
THE RIGHTS OF HOLDERS TO COMMUNICATE WITH OTHER HOLDERS WITH
RESPECT TO THEIR RIGHTS UNDER THIS INDENTURE OR UNDER THE SECURITIES, AND THE
CORRESPONDING RIGHTS AND PRIVILEGES OF THE TRUSTEE, SHALL BE AS PROVIDED IN THE
TRUST INDENTURE ACT.
(C)
EVERY HOLDER OF SECURITIES, BY RECEIVING AND HOLDING THE SAME,
AGREES WITH THE COMPANY AND THE TRUSTEE THAT NEITHER THE COMPANY NOR THE TRUSTEE
NOR ANY AGENT OF EITHER OF THEM SHALL BE HELD ACCOUNTABLE BY REASON OF THE
DISCLOSURE OF INFORMATION AS TO THE NAMES AND ADDRESSES OF THE HOLDERS MADE
PURSUANT TO THE TRUST INDENTURE ACT.
SECTION 7.3
Reports by Company.
(A)
THE COMPANY SHALL FURNISH TO THE HOLDERS AND TO PROSPECTIVE
PURCHASERS OF SECURITIES, UPON THEIR REQUEST, THE INFORMATION REQUIRED TO BE
FURNISHED PURSUANT TO RULE 144A(D)(4) UNDER THE SECURITIES ACT.
THE DELIVERY
REQUIREMENT SET FORTH IN THE PRECEDING SENTENCE MAY BE SATISFIED BY COMPLIANCE
WITH SECTION 7.3(B) HEREOF.
(B)
THE COMPANY SHALL FURNISH TO EACH OF (I) THE TRUSTEE, (II) THE
HOLDERS AND TO SUBSEQUENT HOLDERS OF SECURITIES, (III) TABERNA CAPITAL
MANAGEMENT, LLC, 450 PARK AVENUE, NEW YORK, NEW YORK 10022, ATTN:
RAPHAEL LICHT
(OR SUCH OTHER ADDRESS AS DESIGNATED BY TABERNA CAPITAL MANAGEMENT, LLC) AND
(IV) ANY BENEFICIAL OWNER OF THE SECURITIES REASONABLY IDENTIFIED TO THE COMPANY
(WHICH IDENTIFICATION MAY BE MADE EITHER BY SUCH BENEFICIAL OWNER OR BY TABERNA
CAPITAL MANAGEMENT, LLC), A DULY COMPLETED AND EXECUTED CERTIFICATE
SUBSTANTIALLY AND SUBSTANTIVELY IN THE FORM ATTACHED HERETO AS EXHIBIT A,
INCLUDING THE FINANCIAL STATEMENTS REFERENCED IN SUCH EXHIBIT, WHICH CERTIFICATE
AND FINANCIAL STATEMENTS SHALL BE SO FURNISHED BY THE COMPANY NOT LATER THAN
FORTY-FIVE (45) DAYS AFTER THE END OF EACH OF THE FIRST THREE FISCAL QUARTERS OF
EACH FISCAL YEAR OF THE COMPANY AND NOT LATER THAN NINETY (90) DAYS AFTER THE
END OF EACH FISCAL YEAR OF THE COMPANY.
(C)
IF THE COMPANY INTENDS TO FILE ITS ANNUAL AND QUARTERLY
INFORMATION WITH THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") IN
ELECTRONIC FORM PURSUANT TO REGULATION S-T OF THE COMMISSION USING THE
COMMISSION'S ELECTRONIC DATA GATHERING, ANALYSIS AND RETRIEVAL ("EDGAR") SYSTEM,
THE COMPANY SHALL NOTIFY THE TRUSTEE IN THE MANNER PRESCRIBED HEREIN OF EACH
SUCH ANNUAL AND QUARTERLY FILING.
THE TRUSTEE IS HEREBY AUTHORIZED AND
47
DIRECTED TO ACCESS THE