Common use of Failure to Become Effective Clause in Contracts

Failure to Become Effective. If the Shelf Registration Statement required by Section 2.01 does not become or is not declared effective on or before the Target Effective Date, then each Purchaser shall be entitled to a payment (with respect to the Restricted Units of each such Purchaser), as liquidated damages and not as a penalty, (a) for each non-overlapping 30-day period for the first 60 days following the Target Effective Date, an amount equal to (i) 0.25% times (ii) the product of (A) the Unit Purchase Price times (B) the number of Restricted Units held by such Purchaser (such product of (A) and (B) being the “Liquidated Damages Multiplier”), and (b) for each non-overlapping 30-day period beginning on the 61st day following the Target Effective Date, with such payment amount increasing by an additional amount equal to 0.25% times the Liquidated Damages Multiplier per non-overlapping 30-day period for each subsequent 60 days up to a maximum amount equal to 1.0% times the Liquidated Damages Multiplier per non-overlapping 30-day period (the “Liquidated Damages”) (i.e., 0.5% for 61-120 days; 0.75% for 121-180 days; and 1.0% thereafter); provided, that the aggregate amount of Liquidated Damages payable by the Partnership under this Agreement to each Purchaser shall not exceed 5.0% of the Unit Purchase Price multiplied by the number of Restricted Units held by such Purchaser. The Liquidated Damages payable pursuant to the immediately preceding sentence shall be payable within ten (10) Business Days after the end of each such non-overlapping 30-day period. Any Liquidated Damages shall be paid to each Purchaser in cash or immediately available funds; provided, however, if the Partnership certifies that it is unable to pay Liquidated Damages in cash or immediately available funds because such payment will violate a covenant in an existing credit agreement or other indebtedness, then the Partnership may pay the Liquidated Damages in kind in the form of the issuance of additional Units, unless otherwise not permitted. Upon any issuance of Units as Liquidated Damages, the Partnership shall promptly (i) prepare and file an amendment to the Shelf Registration Statement prior to its effectiveness adding such Units to such Shelf Registration Statement as additional Registrable Securities and (ii) prepare and file a supplemental listing application with the NYSE to list such additional Units. The determination of the number of Units to be issued as Liquidated Damages shall be equal to the average of the closing sales prices of the Partnership’s Units for the ten (10) trading days immediately preceding the date on which the liquidated damages payment is due, less a discount of 2%. The payment of liquidated damages to a Purchaser shall cease at the earlier of (i) such time as the Shelf Registration Statement is declared effective or (ii) one year from the Closing Date.

Failure to Become Effective. If the Shelf Resale Registration Statement required by Section 2.01 2.1(a) does not become or is not declared effective on or before the Target Effective Date, then the Partnership shall pay each Purchaser shall be entitled to a payment Holder (with respect to the Restricted Purchased Units of each such PurchaserHolder which are included on such Resale Registration Statement), as liquidated damages and not as a penalty, (ai) for each non-overlapping 30-day period for the first 60 days following the Target Effective Date, an amount equal to (iA) 0.25% times (iiB) the product of (Ax) the Purchased Unit Purchase Price times (By) the number of Restricted Units Purchased Units, then held by such Purchaser Holder and included on such Resale Registration Statement (such product of (Ax) and (By) being the “Liquidated Damages Multiplier”), and (bii) for each non-overlapping 30-day period beginning on the 61st day following the Target Effective Date, with such payment amount increasing by an additional amount equal to 0.25% times the Liquidated Damages Multiplier per non-overlapping 30-day period for each subsequent 60 days (i.e., 0.5% for 61-120 days, 0.75% for 121-180 days, and 1.0% thereafter) up to a maximum amount equal to 1.0% times the Liquidated Damages Multiplier per non-overlapping 30-day period (the “Liquidated Damages”) (i.e., 0.5% for 61-120 days; 0.75% for 121-180 days; and 1.0% thereafter); provided, that the aggregate amount of Liquidated Damages payable by the Partnership under this Agreement to each Purchaser shall per Purchased Unit may not exceed 5.0% of the Purchased Unit Purchase Price multiplied by the number of Restricted Units held by such PurchaserPrice. The Liquidated Damages payable pursuant to the immediately preceding sentence shall be payable within ten (10) Business Days after the end of each such non-overlapping 30-day period. Any Liquidated Damages shall be paid to each Purchaser Holder in cash or immediately available fundscash; provided, however, if the Partnership certifies that it is unable to pay Liquidated Damages in cash or immediately available funds because such payment will violate a covenant in an existing credit agreement or other indebtedness, then the Partnership may may, in its sole discretion, pay the Liquidated Damages in kind in the form of the issuance of additional Common Units, unless otherwise not permitted. Upon any issuance of Common Units as Liquidated Damages, the Partnership shall promptly (i) prepare and file an amendment to the Shelf Registration Statement prior to its effectiveness adding such Units to such Shelf Registration Statement as additional Registrable Securities and (ii) prepare and file a supplemental listing application with the NYSE NASDAQ to list such additional Common Units. The determination of the number of Common Units to be issued paid as Liquidated Damages shall be equal to based on the volume-weighted average price of the closing sales prices of the Partnership’s Common Units for the ten (10) trading days immediately preceding the date on which the liquidated damages Liquidated Damages payment is due, less a discount of 2%. The payment of liquidated damages Liquidated Damages under this Section 2.1(c) and Section 2.1(d) to a Purchaser Holder shall cease at the earlier of (i) such time as the Shelf Resale Registration Statement becomes or is declared effective by the Commission or (ii) one year from at such time as the Closing Datesecurities included on the Resale Registration Statement are no longer Registrable Securities), and shall be prorated for any period of less than 30 days in which the Liquidated Damages cease.

Failure to Become Effective. If the Shelf Resale Registration Statement required by Section 2.01 2.1(a) does not become or is not declared effective on or before the Target Effective Date, then the Partnership shall pay each Purchaser shall be entitled to a payment Holder (with respect to either the Restricted Purchased Units or the Converted Class C Units, as applicable, of each such PurchaserHolder which are included on such Resale Registration Statement), as liquidated damages and not as a penalty, (ai) for each non-overlapping 30-day period for the first 60 days following the Target Effective Date, an amount equal to (iA) 0.25% times (iiB) the product of (Ax) the Class C Unit Purchase Price times (By) the number of Restricted Purchased Units or the Converted Class C Units, as applicable, then held by such Purchaser Holder and included on such Resale Registration Statement and which may not otherwise be disposed of pursuant to Rule 144 without any restriction, including if the Holder is an Affiliate of the Partnership, restrictions that apply to sales by Affiliates (such product of (Ax) and (By) being the “Liquidated Damages Multiplier”), and (bii) for each non-overlapping 30-day period beginning on the 61st day following the Target Effective Date, with such payment amount increasing by an additional amount equal to 0.25% times the Liquidated Damages Multiplier per non-overlapping 30-day period for each subsequent 60 days (i.e., 0.5% for 61-120 days, 0.75% for 121-180 days, and 1.0% thereafter) up to a maximum amount equal to 1.0% times the Liquidated Damages Multiplier per non-overlapping 30-day period (the “Liquidated Damages”) (i.e., 0.5% for 61-120 days; 0.75% for 121-180 days; and 1.0% thereafter); provided, that the aggregate amount of Liquidated Damages payable by the Partnership under this Agreement to each Purchaser shall per Purchased Unit or Converted Class C Unit, as applicable, may not exceed 5.0% of the Class C Unit Purchase Price multiplied by the number of Restricted Units held by such PurchaserPrice. The Liquidated Damages payable pursuant to the immediately preceding sentence shall be payable within ten (10) Business Days after the end of each such non-overlapping 30-day period. Any Liquidated Damages shall be paid to each Purchaser Holder in cash or immediately available fundscash; provided, however, if the Partnership certifies that it is unable to pay Liquidated Damages in cash or immediately available funds because such payment will violate a covenant in an existing credit agreement or other indebtedness, then the Partnership may may, in its sole discretion, pay the Liquidated Damages in kind in the form of the issuance of additional Class C Units, unless otherwise not permitted. Upon any issuance of Class C Units as Liquidated Damages, the Partnership shall promptly (i) prepare and file an amendment to the Shelf Registration Statement prior to its effectiveness adding such Units to such Shelf Registration Statement as additional Registrable Securities and (ii) prepare and file a supplemental listing application with the NYSE to list such additional Converted Class C Units. The determination of the number of Class C Units to be issued paid as Liquidated Damages shall be equal to based on the volume-weighted average price of the closing sales prices of the Partnership’s Common Units for the ten (10) trading days immediately preceding the date on which the liquidated damages Liquidated Damages payment is due, less a discount of 2%. The payment of liquidated damages Liquidated Damages under this Section 2.1(b) and Section 2.1(e) to a Purchaser Holder shall cease at the earlier of (i) such time as the Shelf Resale Registration Statement becomes or is declared effective by the Commission or at such time as the securities included on the Resale Registration Statement are no longer Registrable Securities or may be disposed of pursuant to Rule 144 without any restriction (ii) one year from including, if the Closing DateHolder is an Affiliate of the Partnership, restrictions that apply to sales by Affiliates), and shall be prorated for any period of less than 30 days in which the Liquidated Damages cease.

Failure to Become Effective. If the Shelf Resale Registration Statement required by Section 2.01 2.01(a) does not become or is not declared effective on or before the 60th day following the date it is initially filed pursuant to Section 2.01(a) (the “Target Effective Date”), then Crestwood shall pay each Purchaser shall be entitled to a payment (with respect to the Restricted Units of each such Purchaser)Holder, as liquidated damages and not as a penalty, (ai) for each non-overlapping 30-day period for the first 60 days following the Target Effective Date, an amount equal to (iA) 0.25% times (iiB) the product of (Ax) the Common Unit Purchase Price times (By) the number of Restricted Common Units then held by such Purchaser Holder that may not otherwise be disposed of pursuant to Rule 144 without any restriction, including, if the Holder is an Affiliate of Crestwood, restrictions that apply to sales by Affiliates (such product of (Ax) and (By) being the “Liquidated Damages Multiplier”), and (bii) for each non-overlapping 30-day period beginning on the 61st day following the Target Effective Date, with such payment amount increasing by an additional amount equal to 0.25% times the Liquidated Damages Multiplier per non-overlapping 30-day period for each subsequent 60 days (i.e., 0.5% for 61-120 days, 0.75% for 121-180 days, and 1.0% thereafter) up to a maximum amount equal to 1.0% times the Liquidated Damages Multiplier per non-overlapping 30-day period (the “Liquidated Damages”) (i.e., 0.5% for 61-120 days; 0.75% for 121-180 days; and 1.0% thereafter); provided, provided that the aggregate amount of Liquidated Damages payable by the Partnership under Crestwood pursuant to this Agreement to each Purchaser shall section may not exceed 5.0% of the Unit Purchase Price multiplied aggregate amount paid by the number of Restricted Purchasers for the Common Units held by such Purchaserpursuant to the Purchase Agreement. The Liquidated Damages payable pursuant to the immediately preceding sentence shall be payable within ten (10) Business Days after the end of each such non-overlapping 30-day period. Any Liquidated Damages (including any Liquidated Damages payable pursuant to Section 2.01(e)) shall be paid to each Purchaser Holder in cash or immediately available fundscash; provided, however, that if the Partnership (1) Crestwood certifies that it is unable to pay Liquidated Damages in cash or immediately available funds because such payment will violate a covenant in an existing credit agreement or other indebtednessindebtedness or (2) the Resale Registration Statement has not become effective by the Target Effective Date solely as a result of or in connection with a position, determination or action of the Commission with respect to the Resale Registration Statement, and the cure for such failure is beyond the control of Crestwood, then the Partnership may Crestwood may, in its sole discretion, pay the Liquidated Damages in kind in the form of the issuance of additional Common Units, unless otherwise not permitted. Upon any issuance of Common Units as Liquidated Damages, the Partnership Crestwood shall promptly (iI) prepare and file an amendment to the Shelf Resale Registration Statement prior to its effectiveness adding such Common Units to such Shelf Resale Registration Statement as additional Registrable Securities and (iiII) prepare and file a supplemental listing application with the NYSE (or such other market on which the Registrable Securities are then listed and traded) to list such additional Common Units. The determination of the number of Common Units to be issued paid as Liquidated Damages shall be equal to based upon the average Common Unit Price, determined as of the closing sales prices of the Partnership’s Units for the ten (10) trading days immediately preceding the date on which the liquidated damages Liquidated Damages payment is due, less a discount of 2%. The payment of liquidated damages Liquidated Damages under this Section 2.01(b) and Section 2.01(e) to a Purchaser Holder shall cease at the earlier of (i) such time as the Shelf Resale Registration Statement becomes or is declared effective by the Commission or at such time as the securities included on the Resale Registration Statement are no longer Registrable Securities or may be disposed of pursuant to Rule 144 without any restriction (ii) one year from including, if the Closing DateHolder is an Affiliate of Crestwood, restrictions that apply to sales by Affiliates), and shall be prorated for any period of less than 30 days in which the Liquidated Damages cease.

Failure to Become Effective. If the a Shelf Registration Statement required by Section 2.01 2.02(a) does not become or is not declared effective on or before within two hundred and forty (240) days after the Target Effective Demand Notice Date, then each Purchaser Selling Holder shall be entitled to a payment (with respect to each Registrable Security held by the Restricted Units of each such PurchaserSelling Holder), as liquidated damages and not as a penalty, (a) for each non-overlapping 30of 0.125% of the Unit Purchase Price per thirty-day period for the first 60 days day period immediately following the Target Effective Date, an amount equal to (i) 0.25% times (ii) 240th day after the product of (A) the Unit Purchase Price times (B) the number of Restricted Units held by such Purchaser (such product of (A) and (B) being the “Liquidated Damages Multiplier”), and (b) for each non-overlapping 30-day period beginning on the 61st day following the Target Effective Demand Notice Date, with such payment amount increasing by an additional amount equal to 0.250.125% times of the Liquidated Damages Multiplier Unit Purchase Price per non-overlapping 30thirty-day period for each subsequent 60 days day period, up to a maximum amount equal to 1.0of 1.00% times of the Liquidated Damages Multiplier Unit Purchase Price per non-overlapping 30thirty-day period (the “Liquidated Damages”) (i.e.), 0.5% for 61-120 days; 0.75% for 121-180 days; and 1.0% thereafter); provided, that until such time as such Shelf Registration Statement becomes effective or is declared effective or the aggregate amount of Liquidated Damages payable by the Partnership under this Agreement to each Purchaser shall not exceed 5.0% of the Unit Purchase Price multiplied by the number of Restricted Units held Registrable Securities covered by such PurchaserShelf Registration Statement are no longer outstanding. The Liquidated Damages payable pursuant to the immediately preceding sentence shall be payable paid to each Selling Holder in cash within ten (10) Business Days after of the end of each such non-overlapping 30-day period. Any payments made pursuant to this Section 2.01(c) shall constitute the Selling Holders’ exclusive monetary remedy for such events. The Liquidated Damages imposed hereunder shall be paid to each Purchaser the Selling Holders in cash or immediately available funds; provided, however, if . In no event will the Partnership certifies that it is unable to pay aggregate amount of Liquidated Damages in cash or immediately available funds because such payment will violate a covenant in an existing credit agreement or other indebtedness, then paid to the Partnership may pay Selling Holders exceed five percent (5%) of the aggregate of the Unit Purchase Price (the “Liquidated Damages Cap”). In addition to being subject to the Liquidated Damages in kind in Cap, the form payment of the issuance Liquidated Damages to a Selling Holder shall cease at such time as the Registrable Securities of additional Unitssuch Selling Holder become eligible for resale under Rule 144 of the Securities Act. Notwithstanding the foregoing, unless otherwise not permitted. Upon any issuance nothing in this Section 2.01(c) shall relieve K-Sea of Units as Liquidated Damages, the Partnership shall promptly (i) prepare and file an amendment its obligation to use its reasonable best efforts to cause the Shelf Registration Statement prior to its effectiveness adding such Units become effective as soon as possible after the initial 240-day period pursuant to such Shelf Registration Statement as additional Registrable Securities and (ii) prepare and file a supplemental listing application with the NYSE to list such additional Units. The determination of the number of Units to be issued as Liquidated Damages shall be equal to the average of the closing sales prices of the Partnership’s Units for the ten (10) trading days immediately preceding the date on which the liquidated damages payment is due, less a discount of 2%. The payment of liquidated damages to a Purchaser shall cease at the earlier of (i) such time as the Shelf Registration Statement is declared effective or (ii) one year from the Closing DateSection 2.01(a).

Failure to Become Effective. If the Shelf Resale Registration Statement required by Section 2.01 2.1(a) does not become or is not declared effective on or before the 60th day following the date it is initially filed pursuant to Section 2.1(a) (the “Target Effective Date”), then Crestwood shall pay each Purchaser shall be entitled to a payment Holder (with respect to the Restricted Redemption Units of each such PurchaserHolder), as liquidated damages and not as a penalty, (ai) for each non-overlapping 30-day period for the first 60 days following the Target Effective Date, an amount equal to (iA) 0.25% times (iiB) the product of (Ax) the CMLP Unit Purchase Price used to calculate the number of Redemption Units issued following the occurrence of the applicable Trigger Event (the “Redemption Price”) times (By) the number of Restricted Redemption Units then held by such Purchaser Holder that may not otherwise be disposed of pursuant to Rule 144 without any restriction, including, if the Holder is an Affiliate of Crestwood, restrictions that apply to sales by Affiliates (such product of (Ax) and (By) being the “Liquidated Damages Multiplier”), and (bii) for each non-overlapping 30-day period beginning on the 61st day following the Target Effective Date, with such payment amount increasing by an additional amount equal to 0.25% times the Liquidated Damages Multiplier per non-overlapping 30-day period for each subsequent 60 days (i.e., 0.5% for 61-120 days, 0.75% for 121-180 days, and 1.0% thereafter) up to a maximum amount equal to 1.0% times the Liquidated Damages Multiplier per non-overlapping 30-day period (the “Liquidated Damages”) (i.e., 0.5% for 61-120 days; 0.75% for 121-180 days; and 1.0% thereafter); provided, provided that the aggregate amount of Liquidated Damages payable by the Partnership under this Agreement to each Purchaser shall Crestwood per Redemption Unit may not exceed 5.0% of the Unit Purchase Price multiplied by the number of Restricted Units held by such PurchaserRedemption Price. The Liquidated Damages payable pursuant to the immediately preceding sentence shall be payable within ten (10) Business Days after the end of each such non-overlapping 30-day period. Any Liquidated Damages (including any Liquidated Damages payable pursuant to Section 2.1(e)) shall be paid to each Purchaser Holder in cash or immediately available fundscash; provided, however, that if the Partnership (A) Crestwood certifies that it is unable to pay Liquidated Damages in cash or immediately available funds because such payment will violate a covenant in an existing credit agreement or other indebtednessindebtedness or (B) the Resale Registration Statement has not become effective by the Target Effective Date solely as a result of or in connection with a position, determination or action of the Commission with respect to the Resale Registration Statement, and the cure for such failure is beyond the control of Crestwood, then the Partnership may Crestwood may, in its sole discretion, pay the Liquidated Damages in kind in the form of the issuance of additional CMLP Units, unless otherwise not permitted. Upon any issuance of CMLP Units as Liquidated Damages, the Partnership Crestwood shall promptly (i) prepare and file an amendment to the Shelf Resale Registration Statement prior to its effectiveness adding such CMLP Units to such Shelf Resale Registration Statement as additional Registrable Securities and (ii) prepare and file a supplemental listing application with the NYSE (or such other market on which the Registrable Securities are then listed and traded) to list such additional CMLP Units. The determination of the number of CMLP Units to be issued paid as Liquidated Damages shall be equal to based upon the average CMLP Unit Price, determined as of the closing sales prices of the Partnership’s Units for the ten (10) trading days immediately preceding the date on which the liquidated damages Liquidated Damages payment is due, less a discount of 2%. The payment of liquidated damages Liquidated Damages under this Section 2.1(b) and Section 2.1(e) to a Purchaser Holder shall cease at the earlier of (i) such time as the Shelf Resale Registration Statement becomes or is declared effective by the Commission or at such time as the securities included on the Resale Registration Statement are no longer Registrable Securities or may be disposed of pursuant to Rule 144 without any restriction (ii) one year from including, if the Closing DateHolder is an Affiliate of Crestwood, restrictions that apply to sales by Affiliates), and shall be prorated for any period of less than 30 days in which the Liquidated Damages cease.