OTHER FEE OR
COMMISSION AS A RESULT OF ANY TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(JJ)
ANY CERTIFICATE SIGNED BY ANY OFFICER OF THE COMPANY DELIVERED TO
THE MANAGER OR TO COUNSEL FOR THE MANAGER PURSUANT TO OR IN CONNECTION WITH THIS
AGREEMENT SHALL BE DEEMED A REPRESENTATION AND WARRANTY BY THE COMPANY TO THE
MANAGER AS TO THE MATTERS COVERED THEREBY.
SECTION 2.
SALE AND DELIVERY OF SECURITIES.
(A)
ON THE BASIS OF THE REPRESENTATIONS, WARRANTIES AND AGREEMENTS
HEREIN CONTAINED, BUT SUBJECT TO THE TERMS AND CONDITIONS HEREIN SET FORTH, THE
MANAGER AGREES TO USE ITS REASONABLE EFFORTS TO SELL THE SHARES AS SALES AGENT
FOR THE FORWARD PURCHASER IN THE MANNER CONTEMPLATED BY THE GENERAL DISCLOSURE
PACKAGE AND THE PROSPECTUS AND ON THE FOLLOWING TERMS.
(I)
THE SHARES ARE TO BE SOLD ON A DAILY BASIS OR OTHERWISE AS SHALL
BE AGREED TO BY THE COMPANY, THE FORWARD PURCHASER AND THE MANAGER ON ANY DAY
THAT IS A TRADING DAY FOR THE NYSE (OTHER THAN A DAY ON WHICH THE NYSE IS
SCHEDULED TO CLOSE PRIOR TO ITS
12
REGULAR WEEKDAY CLOSING TIME).
THE COMPANY, IN CONSULTATION WITH THE FORWARD
PURCHASER AND THE MANAGER, WILL DESIGNATE THE MAXIMUM AMOUNT OF SHARES SOUGHT TO
BE SOLD BY THE MANAGER DAILY AS REASONABLY AGREED TO BY THE MANAGER AND IN ANY
EVENT NOT IN EXCESS OF THE AMOUNT THEN AVAILABLE FOR SALE UNDER THE REGISTRATION
STATEMENT.
SUBJECT TO THE TERMS AND CONDITIONS HEREOF, THE MANAGER SHALL USE
ITS REASONABLE EFFORTS TO SELL ON BEHALF OF THE FORWARD PURCHASER ALL OF THE
SHARES SO DESIGNATED BY THE COMPANY.
(II)
NOTWITHSTANDING THE FOREGOING, THE COMPANY MAY INSTRUCT THE
MANAGER BY TELEPHONE (CONFIRMED PROMPTLY BY TELECOPY) NOT TO SELL SHARES AT
PRICES BELOW THE PRICE DESIGNATED BY THE COMPANY IN ANY SUCH INSTRUCTION.
FURTHERMORE, THE COMPANY SHALL NOT AUTHORIZE THE SALE OF, AND THE MANAGER SHALL
NOT BE OBLIGATED TO USE ITS REASONABLE EFFORTS TO SELL, ANY SHARES AT A PRICE
LOWER THAN THE MINIMUM PRICE THEREFOR DESIGNATED BY THE COMPANY FROM TIME TO
TIME AND NOTIFIED TO THE MANAGER IN WRITING.
IN ADDITION, THE COMPANY OR THE
MANAGER MAY, UPON NOTICE TO THE OTHER PARTY HERETO BY TELEPHONE (CONFIRMED
PROMPTLY BY TELECOPY), SUSPEND THE OFFERING OF THE SHARES; PROVIDED, HOWEVER,
THAT SUCH SUSPENSION OR TERMINATION SHALL NOT AFFECT OR IMPAIR THE PARTIES'
RESPECTIVE OBLIGATIONS WITH RESPECT TO THE SHARES SOLD HEREUNDER PRIOR TO THE
GIVING OF SUCH NOTICE.
UNDER NO CIRCUMSTANCES SHALL THE NUMBER OF SHARES SOLD
PURSUANT TO THIS AGREEMENT EXCEED THE NUMBER OF SHARES SET FORTH IN THE
"INTRODUCTORY" PARAGRAPH OF THIS AGREEMENT OR THE NUMBER OF SHARES OF COMMON
STOCK AVAILABLE FOR SALE UNDER THE CURRENTLY EFFECTIVE REGISTRATION STATEMENT.
NOTWITHSTANDING ANY OF THE PROVISIONS OF THIS AGREEMENT, IN THE EVENT THAT
EITHER (I) THE FORWARD PURCHASER IS UNABLE TO BORROW AND DELIVER ANY SHARES FOR
SALE UNDER THIS AGREEMENT OR (II) IN THE SOLE JUDGMENT OF THE FORWARD PURCHASER,
IT IS EITHER IMPRACTICABLE TO DO SO OR THE FORWARD