ISSUER, OR UPON THE EXERCISE BY ANY
ISSUER OF ANY RIGHT, PRIVILEGE OR OPTION PERTAINING TO ANY PLEDGED SHARES OR LLC
RIGHTS, AND, IN CONNECTION THEREWITH, TO DEPOSIT AND DELIVER ANY AND ALL OF THE
PLEDGED SHARES OR LLC RIGHTS WITH ANY COMMITTEE, DEPOSITORY, TRANSFER, AGENT,
REGISTRAR OR OTHER DESIGNATED AGENT UPON SUCH TERMS AND CONDITIONS AS IT MAY
DETERMINE; AND
(III)
ALL DIVIDENDS AND INTEREST PAYMENTS WHICH
ARE RECEIVED BY DEBTOR CONTRARY TO THE PROVISIONS OF SUBSECTION (B)(I) OF THIS
SECTION SHALL BE RECEIVED IN TRUST FOR THE BENEFIT OF SECURED PARTY, SHALL BE
SEGREGATED FROM OTHER FUNDS OF DEBTOR, AND SHALL BE FORTHWITH PAID OVER TO
SECURED PARTY AS PLEDGED SHARES OR LLC RIGHTS IN THE EXACT FORM RECEIVED, TO BE
HELD BY SECURED PARTY AS COLLATERAL.
SECTION 4.9.
PRIVATE SALE OF PLEDGED SHARES.
DEBTOR RECOGNIZES THAT SECURED PARTY MAY DEEM IT IMPRACTICABLE TO EFFECT A
PUBLIC SALE OF ALL OR ANY PART OF THE PLEDGED SHARES OR THE LLC RIGHTS AND THAT
SECURED PARTY MAY, THEREFORE, DETERMINE TO MAKE ONE OR MORE PRIVATE SALES OF ANY
SUCH SECURITIES OR LLC RIGHTS TO A RESTRICTED GROUP OF PURCHASERS WHO WILL BE
OBLIGATED TO AGREE, AMONG OTHER THINGS, TO ACQUIRE SUCH SECURITIES OR LLC RIGHTS
FOR THEIR OWN ACCOUNT, FOR INVESTMENT AND NOT WITH A VIEW TO THE DISTRIBUTION OR
RESALE THEREOF.
DEBTOR ACKNOWLEDGES THAT ANY SUCH PRIVATE SALE MAY BE AT PRICES
AND ON TERMS LESS FAVORABLE TO THE SELLER THAN THE PRICES AND OTHER TERMS WHICH
MIGHT HAVE BEEN OBTAINED AT A PUBLIC SALE AND, NOTWITHSTANDING THE FOREGOING,
AGREES THAT SUCH PRIVATE SALES SHALL BE DEEMED TO HAVE BEEN MADE IN A
COMMERCIALLY REASONABLE MANNER AND THAT SECURED PARTY SHALL HAVE NO OBLIGATION
TO DELAY SALE OF ANY SUCH SECURITIES OR LLC RIGHTS FOR THE PERIOD OF TIME
NECESSARY TO PERMIT THE ISSUER OF SUCH SECURITIES OR LLC RIGHTS TO REGISTER SUCH
SECURITIES OR LLC RIGHTS FOR PUBLIC SALE UNDER THE SECURITIES ACT OF 1933, AS
AMENDED.
DEBTOR FURTHER ACKNOWLEDGES AND AGREES THAT ANY OFFER TO SELL SUCH
SECURITIES OR LLC RIGHTS WHICH HAS BEEN (A) PUBLICLY ADVERTISED ON A BONA FIDE
BASIS IN A NEWSPAPER OR OTHER PUBLICATION OF GENERAL CIRCULATION IN THE
FINANCIAL COMMUNITY OF DENVER, COLORADO (TO THE EXTENT THAT SUCH AN OFFER MAY BE
SO ADVERTISED WITHOUT PRIOR REGISTRATION UNDER THE SECURITIES ACT), OR (B) MADE
PRIVATELY IN THE MANNER DESCRIBED ABOVE TO NOT LESS THAN FIFTEEN (15) BONA FIDE
OFFEREES SHALL BE DEEMED TO INVOLVE A "PUBLIC DISPOSITION" FOR THE PURPOSES OF
SECTION 9.610(C) OF THE UCC (OR ANY SUCCESSOR OR SIMILAR, APPLICABLE STATUTORY
PROVISION) AS THEN IN EFFECT IN THE STATE OF TEXAS, NOTWITHSTANDING THAT SUCH
SALE MAY NOT CONSTITUTE A "PUBLIC OFFERING" UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND THAT SECURED PARTY MAY, IN SUCH EVENT, BID FOR THE PURCHASE OF SUCH
SECURITIES OR LLC RIGHTS.
16
ARTICLE V - MISCELLANEOUS
SECTION 5.1.
NOTICES.
ANY NOTICE OR
COMMUNICATION REQUIRED OR PERMITTED HEREUNDER SHALL BE GIVEN AS PROVIDED