THE MANAGER TO THE CONTRARY IN WRITING).
THE COMPANY SHALL CAUSE A SENIOR
CORPORATE OFFICER OF THE COMPANY FROM TIME TO TIME DESIGNATED BY THE COMPANY
(WHICH SENIOR CORPORATE OFFICER SHALL INITIALLY BE ONE OF THE SENIOR CORPORATE
OFFICERS SPECIFIED IN EXHIBIT C HERETO) TO RESPOND VIA ELECTRONIC MAIL TO A
COMMUNICATION FROM THE MANAGER IN THE FORM SET FORTH IN EXHIBIT C HERETO WHEN,
DURING THE TERM OF THIS AGREEMENT, THE COMPANY SHALL HAVE RECEIVED SUCH A
COMMUNICATION.
THE COMPANY COVENANTS AND AGREES WITH THE MANAGER THAT EACH
FILING MADE ON EACH FILING DATE WILL SET FORTH, WITH REGARD TO THE PERIOD
COVERED BY SUCH FILING, THE NUMBER OF SHARES SOLD THROUGH THE MANAGER AS AGENT
PURSUANT TO THIS SECTION 2(A), THE NET PROCEEDS TO THE COMPANY AND THE
COMPENSATION PAID OR DEEMED PAID BY THE COMPANY TO THE MANAGER WITH RESPECT TO
SUCH SALES.
FOR PURPOSES OF THIS AGREEMENT, "FILING DATE" SHALL MEAN EACH DATE
ON WHICH THE COMPANY FILES A QUARTERLY REPORT ON FORM 10-Q OR AN ANNUAL REPORT
ON FORM 10-K, AS APPLICABLE, UNDER THE 1934 ACT AND THE 1934 ACT REGULATIONS.
ANY OBLIGATION OF THE MANAGER TO USE ITS REASONABLE EFFORTS TO SELL THE SHARES
ON BEHALF OF THE FORWARD PURCHASER SHALL BE SUBJECT TO THE CONTINUING ACCURACY
OF THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY (WHICH DETERMINATION SHALL
BE IN THE SOLE DISCRETION OF THE MANAGER), TO THE PERFORMANCE BY THE COMPANY OF
ITS OBLIGATIONS SET FORTH IN THIS AGREEMENT, TO THE CONTINUING SATISFACTION OF
THE ADDITIONAL CONDITIONS SPECIFIED IN SECTIONS 3 AND 4 OF THIS AGREEMENT AND TO
THE PRIOR RECEIPT BY THE MANAGER OF ANY OF THE LETTERS AND OPINIONS SPECIFIED IN
SECTION 4(C) AND (D) OF THIS AGREEMENT REGARDLESS OF WHETHER TWO BUSINESS DAYS
SHALL HAVE ELAPSED FOLLOWING A REQUEST THEREFOR BY THE MANAGER.
(B)
IF THE COMPANY WISHES FOR THE SHARES TO BE SOLD OTHER THAN AS SET
FORTH IN SECTION 2(A) (EACH, A "FIXED PRICE OFFERING"), IT WILL NOTIFY THE
MANAGER OF THE PROPOSED TERMS OF SUCH FIXED PRICED OFFERING.
IF THE FORWARD
PURCHASER AND THE MANAGER WISH TO ACCEPT SUCH PROPOSED TERMS (WHICH EITHER MAY
DECLINE TO DO FOR ANY REASON IN ITS SOLE DISCRETION) OR, FOLLOWING DISCUSSIONS
WITH THE COMPANY, WISH TO ACCEPT AMENDED TERMS, THE MANAGER AND THE
14
COMPANY WILL ENTER INTO A TERMS AGREEMENT SETTING FORTH THE TERMS OF SUCH FIXED
PRICE OFFERING.
THE TERMS SET FORTH IN A TERMS AGREEMENT WILL NOT BE BINDING ON
THE COMPANY OR THE MANAGER UNLESS AND UNTIL THE COMPANY AND THE MANAGER HAVE
EACH EXECUTED AND DELIVERED SUCH TERMS AGREEMENT ACCEPTING ALL OF THE TERMS OF
SUCH TERMS AGREEMENT.
THE COMMITMENT OF THE MANAGER TO PURCHASE SHARES PURSUANT
TO ANY TERMS AGREEMENT SHALL BE DEEMED TO HAVE BEEN MADE ON THE BASIS OF THE
REPRESENTATIONS AND WARRANTIES OF THE COMPANY HEREIN CONTAINED AND SHALL BE
SUBJECT TO THE TERMS AND CONDITIONS HEREIN SET FORTH.
IN THE EVENT OF A
CONFLICT BETWEEN THE TERMS OF THIS AGREEMENT