ALL OTHER FEES, COSTS AND EXPENSES REFERRED TO IN ITEM 14 OF PART II OF THE
REGISTRATION STATEMENT
SECTION 6.
CONDITIONS OF THE OBLIGATIONS OF THE PLACEMENT AGENT.
THE
OBLIGATIONS OF THE PLACEMENT AGENT HEREUNDER SHALL BE SUBJECT TO THE ACCURACY OF
THE REPRESENTATIONS AND WARRANTIES ON THE PART OF THE COMPANY SET FORTH IN
SECTION 2 HEREOF AS OF THE DATE HEREOF AND AS OF THE CLOSING DATE AS THOUGH THEN
MADE AND THE ACCURACY OF THE STATEMENTS OF THE COMPANY MADE IN ANY CERTIFICATES
PURSUANT TO THE PROVISIONS HEREOF, TO THE TIMELY PERFORMANCE BY THE COMPANY OF
ITS COVENANTS AND OTHER OBLIGATIONS HEREUNDER, AND TO EACH OF THE FOLLOWING
ADDITIONAL CONDITIONS:
(A)
ON OR PRIOR TO THE DATE OF THE SUBSCRIPTION AGREEMENTS, THE
PLACEMENT AGENT SHALL HAVE RECEIVED A LETTER, DATED THE DATE OF DELIVERY
THEREOF, OF EHRHARDT KEEFE STEINER & HOTTMAN P.C. SUBSTANTIALLY IN THE FORM OF
EXHIBIT B-1 HERETO.
(B)
ON OR PRIOR TO THE DATE OF THE SUBSCRIPTION AGREEMENTS, THE PLACEMENT AGENT
SHALL HAVE RECEIVED A LETTER, DATED THE DATE OF DELIVERY THEREOF, OF KPMG LLP
SUBSTANTIALLY IN THE FORM OF EXHIBIT B-2 HERETO.
(C)
THE PROSPECTUS SHALL HAVE BEEN FILED WITH THE COMMISSION IN ACCORDANCE
WITH THE RULES AND REGULATIONS AND SECTION 4(A) OF THIS AGREEMENT.
NO STOP
ORDER SUSPENDING THE EFFECTIVENESS OF THE REGISTRATION STATEMENT OR OF ANY PART
THEREOF SHALL HAVE BEEN ISSUED AND NO PROCEEDINGS FOR THAT PURPOSE SHALL HAVE
BEEN INSTITUTED OR, TO THE KNOWLEDGE OF THE COMPANY OR THE PLACEMENT AGENT,
SHALL BE CONTEMPLATED BY THE COMMISSION.
(D)
SUBSEQUENT TO THE EXECUTION OF THE SUBSCRIPTION AGREEMENTS, THERE SHALL NOT
HAVE OCCURRED (I) ANY CHANGE, OR ANY DEVELOPMENT OR EVENT INVOLVING A
PROSPECTIVE CHANGE, IN THE CONDITION (FINANCIAL OR OTHER), BUSINESS, PROPERTIES
OR RESULTS OF OPERATIONS OF THE COMPANY AND ITS SUBSIDIARIES TAKEN AS ONE
ENTERPRISE WHICH, IN THE JUDGMENT OF THE PLACEMENT AGENT, IS MATERIAL AND
ADVERSE AND MAKES IT IMPRACTICAL OR INADVISABLE TO PROCEED WITH COMPLETION OF
THE SALE OF AND PAYMENT FOR BY THE PURCHASERS OF THE SECURITIES; (II) ANY
DOWNGRADING IN THE RATING OF ANY DEBT SECURITIES OF THE COMPANY BY ANY
"NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATION" (AS DEFINED FOR PURPOSES
OF RULE 436(G) UNDER THE SECURITIES ACT), OR ANY PUBLIC ANNOUNCEMENT THAT ANY
SUCH ORGANIZA­TION HAS UNDER SURVEILLANCE OR REVIEW ITS RATING OF ANY DEBT
SECURITIES OF THE COMPANY (OTHER THAN AN ANNOUNCEMENT WITH POSITIVE
IMPLI­CATIONS OF A POSSIBLE UPGRADING, AND NO IMPLICATION OF A POSSIBLE
DOWN­GRADING, OF SUCH RATING) OR ANY ANNOUNCEMENT THAT THE COMPANY HAS BEEN
PLACED ON NEGATIVE OUTLOOK; (III) ANY CHANGE IN U.S. OR INTERNATIONAL FINANCIAL,
POLITICAL OR ECONOMIC CONDITIONS OR CURRENCY EXCHANGE RATES OR EXCHANGE CONTROLS
AS WOULD, IN THE JUDGMENT OF THE PLACEMENT AGENT, BE LIKELY TO PREJUDICE
MATERIALLY THE SUCCESS OF THE PROPOSED ISSUE, SALE OR DISPOSITION OF THE
SECURITIES
13
IN THE SECONDARY MARKET; (IV) ANY MATERIAL SUSPENSION OR MATERIAL LIMITATION OF
TRADING IN SECURITIES GENERALLY ON EITHER THE NEW YORK STOCK EXCHANGE OR THE
STOCK