SET FORTH
IN THIS AGREEMENT, THE CLOSING OF THE TRANSACTION CONTEMPLATED BY SECTION 2.01
(THE "CLOSING") SHALL TAKE PLACE AT 10:00 AM ON THE FIRST BUSINESS DAY FOLLOWING
RECEIPT BY THE COMPANY OF NOTICE THAT THE SHARES HAVE BEEN DULY LISTED ON THE
NYSE, PENDING NOTICE OF ISSUANCE, BUT NOT LATER THAN WEDNESDAY, FEBRUARY 23,
2005, OR AT SUCH OTHER TIME AS MAY BE MUTUALLY AGREED UPON BY THE INVESTOR AND
THE COMPANY (THE "CLOSING DATE").
THE CLOSING SHALL OCCUR ON THE CLOSING DATE
AT THE OFFICES OF KATTEN MUCHIN ZAVIS ROSENMAN, 575 MADISON AVENUE, NEW YORK,
NEW YORK.
(B)
AT THE CLOSING: (I) THE COMPANY WILL DELIVER TO THE INVESTOR (X) A
CERTIFICATE FOR THE SHARES REGISTERED IN THE NAME OF THE INVESTOR AND (Y) LEGAL
OPINIONS OF COUNSEL TO THE COMPANY ADDRESSED TO THE INVESTOR, SATISFACTORY TO
COUNSEL TO THE INVESTOR AND IN SUBSTANTIALLY THE FORM OF ANNEX A AND ANNEX B
(THE "COMPANY COUNSEL OPINIONS"); (II) THE INVESTOR, IN FULL PAYMENT FOR THE
SHARES, WILL DELIVER TO THE COMPANY THE PURCHASE PRICE IN IMMEDIATELY AVAILABLE
FUNDS, BY WIRE TRANSFER TO SUCH ACCOUNT AS THE COMPANY SHALL SPECIFY, AND (III)
EACH PARTY SHALL TAKE OR CAUSE TO HAPPEN SUCH OTHER ACTIONS, AND SHALL EXECUTE
AND DELIVER SUCH OTHER INSTRUMENTS OR DOCUMENTS, AS SHALL BE REQUIRED UNDER
ARTICLE VII.
SECTION 2.03.
USE OF PROCEEDS.
THE COMPANY SHALL USE THE PROCEEDS FROM
THE SALE OF THE SHARES FOR GENERAL CORPORATE PURPOSES.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Investor as follows:
SECTION 3.01.
ORGANIZATION AND GOOD STANDING.
THE COMPANY IS AN
UNINCORPORATED ASSOCIATION IN THE FORM OF A BUSINESS TRUST ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF OHIO AND HAS TRUST
POWER AND AUTHORITY TO OWN, LEASE AND OPERATE ITS PROPERTIES AND CARRY ON ITS
BUSINESS AS PRESENTLY CONDUCTED.
THE COMPANY IS DULY QUALIFIED, REGISTERED OR
LICENSED AS A FOREIGN BUSINESS ENTITY TO DO BUSINESS AND IS IN GOOD STANDING IN
EACH JURISDICTION IN WHICH THE OWNERSHIP OR LEASING OF ITS PROPERTIES OR THE
CHARACTER OF ITS PRESENT OPERATIONS MAKES SUCH QUALIFICATION, REGISTRATION OR
LICENSING NECESSARY, EXCEPT WHERE THE FAILURE TO SO QUALIFY OR BE IN GOOD
STANDING COULD NOT REASONABLY HAVE A MATERIAL ADVERSE EFFECT. THE
5
COMPANY HAS HERETOFORE DELIVERED OR MADE AVAILABLE TO THE INVESTOR COMPLETE AND
CORRECT COPIES OF THE DECLARATION OF TRUST OF THE COMPANY, AS AMENDED TO DATE
(THE "DECLARATION OF TRUST").
SECTION 3.02.
AUTHORITY; BINDING EFFECT.
THE COMPANY HAS TRUST POWER AND
AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT AND TO CONSUMMATE THE
TRANSACTION CONTEMPLATED HEREBY.
THE EXECUTION AND DELIVERY OF THIS AGREEMENT
AND THE CONSUMMATION BY THE COMPANY OF THE TRANSACTION CONTEMPLATED HEREBY HAVE
BEEN DULY AND VALIDLY APPROVED BY ALL NECESSARY ACTION ON THE PART OF THE
COMPANY.
THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY THE COMPANY AND
CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATION OF THE COMPANY, ENFORCEABLE
IN ACCORDANCE WITH ITS