COMPANY, DATED AS
OF THE DATE OF THE CLOSING, IN A FORM ACCEPTABLE TO THE PURCHASERS,
(IV)
THE PLACEMENT AGENT SHALL HAVE RECEIVED A
COMFORT LETTER FROM ERNST & YOUNG LLP, DATED AS OF THE CLOSING, SUBSTANTIALLY IN
THE FORM ATTACHED HERETO AS EXHIBIT C, AND
(V)
ON THE CLOSING DATE, THE COMPANY SHALL HAVE
DELIVERED TO THE PURCHASERS A CERTIFICATE OF THE CHIEF EXECUTIVE OFFICER AND
CHIEF FINANCIAL OFFICER OF THE COMPANY, DATED AS OF THE CLOSING DATE, SETTING
FORTH THAT EACH OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS
AGREEMENT SHALL BE TRUE ON AND AS OF THE CLOSING DATE AS IF MADE AS OF THE
CLOSING DATE AND EACH OF THE CONDITIONS AND COVENANTS CONTAINED HEREIN SHALL
HAVE BEEN COMPLIED WITH TO THE EXTENT COMPLIANCE IS REQUIRED PRIOR TO CLOSING,
AND SHALL HAVE DELIVERED SUCH OTHER CUSTOMARY CERTIFICATES AS THE PLACEMENT
AGENT SHALL HAVE REASONABLY REQUESTED.
7
(B)
THE COMPANY'S OBLIGATION TO ISSUE AND SELL
THE CAPITAL SHARES SHALL BE SUBJECT TO THE FOLLOWING CONDITIONS HAVING BEEN MET:
(I)
THE REPRESENTATIONS AND WARRANTIES SET
FORTH IN SECTIONS 2, 4 AND 5 OF THIS AGREEMENT SHALL BE TRUE AND CORRECT WITH
THE SAME FORCE AND EFFECT AS THOUGH EXPRESSLY MADE AT AND AS OF THE CLOSING AND
(II)
THE SETTLEMENT AGENT SHALL HAVE RECEIVED
PAYMENT IN FULL FOR THE PURCHASE PRICE FOR THE CAPITAL SHARES BY FEDERAL WIRE OF
IMMEDIATELY AVAILABLE FUNDS, NOT LESS THAN THE AGGREGATE AMOUNT OF $33,120,000
PRIOR TO THE PAYMENT OF FEES AND EXPENSES.
7.
CLOSING.
PROVIDED THAT THE CONDITIONS
SET FORTH IN SECTION 6 HERETO AND THE LAST SENTENCE OF THIS SECTION 7 HAVE BEEN
MET OR WAIVED AT SUCH TIME, THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE
CONSUMMATED ON JULY 15, 2005, OR AT SUCH OTHER TIME AND DATE AS THE PARTIES
HERETO SHALL AGREE (EACH SUCH TIME AND DATE OF PAYMENT AND DELIVERY BEING HEREIN
CALLED THE "CLOSING").
AT THE CLOSING, SETTLEMENT SHALL OCCUR THROUGH
JEFFRIES & COMPANY, OR AN AFFILIATE THEREOF, ON A DELIVERY VERSUS PAYMENT BASIS
THROUGH THE DTC ID SYSTEM.
8.
COVENANTS.
THE COMPANY HEREBY
COVENANTS AND AGREES THAT SUBJECT TO ALL PURCHASERS CONSUMMATING THE PURCHASE OF
THE CAPITAL SHARES AT THE CLOSING, THE COMPANY WILL USE THE PROCEEDS OF THE
OFFERING CONTEMPLATED HEREBY AS SET FORTH UNDER THE CAPTION "USE OF PROCEEDS" IN
THE PROSPECTUS SUPPLEMENT.
9.
TERMINATION.
THIS AGREEMENT MAY BE
TERMINATED, AND THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE ABANDONED, BY
WRITTEN NOTICE PROMPTLY GIVEN TO THE OTHER PARTIES HERETO, AT ANY TIME PRIOR TO
THE CLOSING BY THE COMPANY, ON THE ONE HAND, OR ANY PURCHASER ON THE OTHER, IF
THE CLOSING SHALL NOT HAVE OCCURRED ON OR PRIOR TO JULY 31, 2005; PROVIDED THAT
THE COMPANY OR SUCH PURCHASER, AS THE CASE MAY BE, SHALL NOT BE ENTITLED TO
TERMINATE THIS AGREEMENT PURSUANT TO THIS SECTION 9 IF THE FAILURE OF CLOSING TO
OCCUR ON OR PRIOR TO SUCH DATES RESULTS PRIMARILY FROM SUCH PARTY ITSELF HAVING
MATERIALLY BREACHED ANY REPRESENTATION, WARRANTY OR COVENANT