Common use of Conditions of the Agents’ Obligations Clause in Contracts

Conditions of the Agents’ Obligations. 5.1 The obligations of the Agent provided herein shall be subject to the accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Registration Statement shall have been declared effective. No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceeding for that purpose shall have been instituted or, to the actual knowledge of the Company or the Agent, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the Agent’s reasonable satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that, in the Agent’s reasonable opinion, is material, or omits to state a fact that, in the Agent’s reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading. (c) At the time of execution of this Agreement, Xxxxxxxxxx Xxxxx Xxxxxx Xxxxxxx, LLP, special counsel to the Company, shall have furnished to the Agent its written opinion, as counsel to the Company, addressed to the Agent and dated the date hereof, in form and substance reasonably satisfactory to the Agent, substantially in the form attached hereto as Exhibit A. (d) At the time of execution of this Agreement, the Agent shall have received from Ernst & Young LLP a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings. (e) The Stock shall be included for listing on the NYSE. (f) There shall not have occurred any event that would permit the Agent to terminate this Agreement pursuant to Section 8.1.

Conditions of the Agents’ Obligations. 5.1 The obligations of the Agent provided herein shall be subject to the accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Registration Statement shall have been declared effective. No stop order suspending the effectiveness of the Registration Statement shall have been issued, and no proceeding for that purpose shall have been instituted or, to the actual knowledge of the Company or the Agent, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the Agent’s reasonable satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that, in the Agent’s reasonable opinion, is material, or omits to state a fact that, in the Agent’s reasonable opinion, is material and is required to be stated therein or is necessary to make the statements therein not misleading. (c) At the time of execution of this Agreement, Xxxxxxxxxx Xxxxx Xxxxxx Xxxxxxx, LLP, special counsel to the Company, shall have furnished to the Agent its written opinion, as counsel to the Company, addressed to the Agent and dated the date hereof, in form and substance reasonably satisfactory to the Agent, substantially in the form attached hereto as Exhibit A. (d) At the time of execution of this Agreement, the The Agent shall have received from Ernst & Young LLP a letter, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date hereof), stating the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings. (e) The Stock shall be included for listing on the NYSE. (f) There shall not have occurred any event that would permit the Agent to terminate this Agreement pursuant to Section 8.1.

Conditions of the Agents’ Obligations. 5.1 The obligations of the Agent as provided herein shall be subject to the accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the satisfaction of the following additional conditionsconditions on or before the Closing Date: (a) The Registration Statement shall have been declared effective. No stop order suspending the effectiveness offer and/or sale of the Registration Statement Units shall have been issued, issued and no proceeding for that purpose shall have been instituted initiated or, to the actual knowledge of the Company or the Agent, threatened threatened, by any Division or the Commission, Securities and Exchange Commission and any request of the Commission any Division for additional information (to be included in the Registration Statement Memorandum or the Prospectus or otherwise) otherwise shall have been complied with to the Agent’s reasonable satisfaction. (b) The Agent shall not have advised the Company that the Registration Statement or the ProspectusMemorandum, or any amendment thereof or supplement thereto, contains an any untrue statement of a fact thatwhich, in the Agent’s reasonable opinionopinion of its legal counsel, is material, or that the Memorandum omits to state a fact thatwhich, in the Agent’s reasonable opinionopinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein contained therein, in light of the circumstances under which they were made, not misleading. (c) At The Agent shall have received an opinion of Xxxxxx, Xxxxx &Bockius LLP, counsel for the time Company, dated as of execution the initial Closing Date and addressed to the Purchasers, in the form attached hereto at Exhibit C. In expressing the foregoing opinions, as to matters of fact relevant to conclusions of law, counsel may rely, to the extent reasonable, upon certificates of public officials and of the responsible officers of the Company, provided that copies of any such certificates of officers of the Company are attached to the opinion. (d) The Agent shall have received from the Company a certificate, dated as of each Closing Date, of the principal executive officer and the principal financial officer of the Company to the effect that: (1) The representations and warranties of the Company in this Agreement are true and correct as if made on the Closing Date. The Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at, or prior to, such date. (2) As of the Closing Date, the Memorandum and any supplement or amendment thereto contained all statements and information required to be included therein, and the Memorandum (as supplemented or amended) did not include any untrue statement of a material fact (including the financial statements and any estimate, opinion or projection) or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. (3) Except as set forth in the SEC Documents: a. Except as is otherwise expressly stated in the Memorandum, or any supplement or amendment thereto, there are no material actions, suits, or proceedings pending before any court or governmental agency, authority, or body to which the Company is a party or of which the business or property of the Company is the subject which could reasonably be expected to result in any material adverse change in the condition (financial or otherwise), business, or prospects of the Company, materially and adversely affect its properties or assets, or prevent consummation of the transactions contemplated by this Agreement; and, to the best of the Company’s knowledge, no such actions, suits, or proceedings are threatened. b. There are no tax deficiencies of the Company which might be asserted against the Company which would materially and adversely affect the Company’s business or properties and the Company has timely filed all applicable federal and state tax returns. c. Subsequent to the respective dates as of which information is given in the Memorandum, and except as contemplated or referred to in the Memorandum, there has not been (i) any material transaction entered into by the Company (other than transactions in the ordinary course of business); (ii) any material obligation, direct or contingent, incurred by the Company (other than obligations incurred in the ordinary course of business); (iii) any material change in the capital stock, short-term debt, or long-term debt of the Company; or (iv) any dividend or distribution of any kind declared, paid or made on the Company’s capital stock. d. Subsequent to the dates as of which information is given in the Memorandum, the Company has not sustained any material loss of, or damage to, its properties, whether or not insured. e. The Company is not in default of any debt, leasing or any other agreements, which default would be reasonably be expected to have a material adverse effect, individually or in the aggregate, on the Company or the Private Placement. f. Except as described in the Memorandum and this Agreement, Xxxxxxxxxx Xxxxx Xxxxxx Xxxxxxxother than the Agent, LLPsuch subagents as may be employed by the Agent and Emergent, special counsel no person or entity is entitled, directly or indirectly, to compensation from the Company or the Agent for current or past services as a finder, agent, broker or originator in connection with the transactions contemplated by this Agreement. (4) On the initial Closing Date and if there are any changes in or updates to the Diligence Materials, on each Closing Date immediately following the delivery of such additional Diligence Materials, the Diligence Materials were prepared in good faith and represent the Company’s best present and future estimate of the Company’s financial condition as of the date set forth therein. (e) On each Closing Date, there shall have been furnished to the Agent its written opinion, as counsel to a certificate of the secretary of the Company, addressed dated as of the Closing Date, with the documents listed herein attached, and to the effect and certifying or recertifying to the Agent as follows: (1) attached thereto are true and dated correct copies of the Certificate of Incorporation of the Company, as amended and restated to the date hereofof the certificate, and stating that there have been no changes or amendments to the attached Certificate of Incorporation of the Company, and no proceedings pending or contemplated for: (i) the amendment of said Certificate of Incorporation, (ii) the merger, consolidation or dissolution of the Company, or (iii) the sale of all or substantially all of the assets or business of the Company shall have commenced since such date or shall be pending, and that the Company is in good standing and has paid all of its corporate franchise taxes due as of the date of such certificate. (2) attached thereto is a true and correct copy of the Bylaws of the Company, as amended to the date of such certificate, and that there have been no changes or amendments to the attached Bylaws and there are no proceedings pending or contemplated for the amendment of such Bylaws. (3) attached thereto are true and correct copies of the resolutions of the Board of Directors of the Company relating to the preparation of the Memorandum and this Agreement, the issuance and sale of the Units and other transactions contemplated by this Agreement; the resolutions relating to such matters have not been amended, modified or rescinded, except as otherwise set forth in or attached to the certificate, and are in full force and effect as of the date of such certificate and are the only resolutions adopted by the Board of Directors of the Company with respect to such matters. (4) the person who has signed this Agreement was duly elected at the time of such signing and was duly acting as an officer of the Company. (f) On initial Closing Date and if there are any changes in the numerical data set forth in the Memorandum or any supplement thereto, on each Closing Date immediately following the implication of such changes, there shall be furnished to the Agent, a letter from the Company’s chief financial officer, dated as of such Closing Date, in form and substance reasonably satisfactory acceptable to the Agent, substantially certifying that the information set forth in the form attached hereto as Exhibit A.Memorandum expressed in numerical data, including, number of securities (or percentages) or dollars (or percentages derived from dollar amounts) have been compared to accounting records that are subject to the internal accounting controls of the Company and are in agreement in all material respects with such record or computations made therefrom, excluding any questions of legal interpretation. (dg) At the time of execution of this Agreement, The Company shall deliver to the Agent shall have received a Blue Sky Memorandum from Ernst & Young LLP a letterXxxxxx Xxxxx &Bockius LLP, confirming that all necessary action for the offer and sale of the Units by the Company has taken place or when such action must take place with respect to jurisdictions requiring post-sale qualifications or filings (with an undertaking to complete such post-sale qualifications and filings). All such opinions, certificates, letters, and documents will be in form and substance compliance with the provisions hereof only if they are reasonably satisfactory to the Agent, addressed to the Agent and dated its legal counsel. All statements contained in any certificate, letter, or other document delivered pursuant hereto by, or on behalf of, the date hereof (i) confirming that they are independent public accountants within the meaning Company shall be deemed to constitute representations and warranties of the Act Company. If any of the conditions specified in this Section 5 cannot be fulfilled (other than a condition failure resulting from the Agent’s bad faith or willful misconduct), this Agreement and are in compliance with all obligations of the applicable requirements relating Agent hereunder may be canceled at the discretion of the Agent, and all subscription proceeds from the Shares shall be promptly delivered to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commissionsubscribers, and (ii) stating, as of the date hereof (or, with respect to matters involving changes without interest or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of deduction. Any such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings. (e) The Stock cancellation shall be included for listing on the NYSE. (f) There shall not have occurred any event that would permit without liability of the Agent to terminate the Company. The Agent may waive, in writing or otherwise, the performance of any one or more of the conditions specified in this Agreement pursuant to Section 8.15 or extend the time for their performance.

Conditions of the Agents’ Obligations. 5.1 The obligations obligation of the Agent to sell the Notes on a best efforts basis as provided herein shall be subject to the accuracy of the representations and warranties of the Company hereinCompany, to the performance by the Company of its obligations hereunder hereunder, and to the satisfaction of the following additional conditions: (a) The Registration Statement shall have been declared be effective. No , and no stop order suspending the effectiveness of the Registration Statement thereof shall have been issued, issued and no proceeding proceedings for that purpose shall have been instituted initiated or, to the actual knowledge of the Company Company, or the Agent, threatened by the Commission, and Commission or any state securities commission or similar regulatory body. Any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Agent and the Agent’s reasonable satisfactioncounsel. (b) The Agent shall not have advised the Company of its reasonable belief that the Registration Statement or the Prospectus, or any amendment thereof or supplement thereto, contains an any untrue statement of a fact that, in the Agent’s reasonable opinion, which is material, material or omits to state a fact that, in the Agent’s reasonable opinion, which is material and is required to be stated therein or is necessary to make the statements therein contained therein, in light of the circumstances under which they were made, not misleading, or, if the Agent has so advised the Company, the Company shall not have taken reasonable action to investigate such belief and, where appropriate, amend the Registration Statement or supplement the Prospectus so as to correct such statement or omission or effect such compliance. (c) At There shall not have occurred any change that materially and adversely affects the time Company’s condition (financial or otherwise), earnings, operations, properties, business or business prospects from that set forth in the Registration Statement or Prospectus, and which is material and adverse or that makes it impracticable or inadvisable to proceed with the Offering of execution the Notes as contemplated by the Prospectus and this Agreement. (d) The Indenture shall have been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act and shall constitute a valid and binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. (e) All proceedings and other legal matters in connection with this Agreement, Xxxxxxxxxx Xxxxx Xxxxxx Xxxxxxxthe form of Registration Statement and the Prospectus, LLPand the registration, special counsel to authorization, issue, sale and delivery of the Company, Notes shall have furnished to the Agent its written opinion, as counsel to the Company, addressed to the Agent and dated the date hereof, in form and substance been reasonably satisfactory to the Agent’s counsel, substantially in all material respects, and the form attached hereto Agent’s counsel shall have been furnished with such papers and information as Exhibit A.it may reasonably have requested to enable it to pass upon the matters referred to in this Section. (df) At The Agent shall have received the time opinion of execution Winthrop & Weinstine, P.A., counsel for the Company, dated as of this Agreementthe Initial Closing Date and satisfactory in form and substance to the Agent and the Agent’s counsel, which includes the opinions as set forth in Exhibit B attached hereto. Such counsel, in rendering the foregoing opinion, may rely as to questions of fact upon representations or certificates of officers of the Company and of government officials, in which case its opinion is to state such reliance. Copies of any opinion, representation or certificate so relied upon shall be delivered to the Agent and to the Agent’s counsel. (g) On the Initial Closing Date, the Agent shall have received from Ernst Lxxxx Xxxxxxx Xxxxxxx & Young Company, LLP a letter, dated as of the Initial Closing Date, in form and substance satisfactory to the Agent, addressed to the Agent and dated the date hereof (i) confirming effect that they are independent public accountants with respect to the Company within the meaning of the Securities Act and are the applicable rules and regulations thereunder, and further stating that: (i) In their opinion, the consolidated balance sheets of the Company as of December 31, 2004 and 2003, and the related consolidated statements of operations, changes in compliance deficit, and cash flows for each of the years in the two-year period then ended, all audited by them and included in the Registration Statement, comply as to form in all material respects with the applicable accounting requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, Act and the related rules and regulations adopted by the SEC. (ii) statingFor purposes of the letter they have: (A) read the minutes of the members’ and directors’ meetings of the Company; (B) inquired of certain officials of the Company responsible for financial and accounting matters; (C) performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 100, Interim Financial Information, on any unaudited financial statements included in the Registration Statement; and (D) read the unaudited consolidated balance sheet of the Company as of , 2005 and the unaudited consolidated statements of operations for the -month period ended , 2005. (iii) Nothing came to their attention as a result of the procedures described above that caused them to believe that: (A) any material modifications should be made to the unaudited consolidated financial statements included in the Registration Statement, for them to be in conformity with accounting principles generally accepted in the United States of America; (B) the unaudited consolidated financial statements included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Exchange Act of 1934, as amended, or were not prepared in conformity with generally accepted accounting principles and practices applied on a basis consistent in all material respects with those followed in the preparation of the audited consolidated financial statements of the Company included therein; (C) the unaudited amounts of consolidated revenues, net income and ratio of earnings (loss) to fixed charges of the Company included in the Prospectus, or any amendment thereof or supplement thereto, were not derived from financial statements prepared in conformity with generally accepted accounting principles and practices applied on a basis consistent in all material respects with those followed in the preparation of the audited consolidated financial statements of the Company included therein; (D) at a specified date not more than five Business Days prior to the date of the letter, there was any change in: (i) the equity interests, (ii) short term indebtedness or long-term debt of the Company and its consolidated variable interest entities, or (iii) members’ equity, as compared with amounts shown on the latest balance sheet included in the Registration Statement; or (E) for the period from the closing date of the latest income statement included in the Registration Statement to the closing date of the latest available income statement read by such accountants, there were any changes, as compared with the corresponding period of the previous year, in consolidated revenues, net income or in the ratio of earnings (loss) to fixed charges; except in all cases set forth in clauses (C) and (D) above, for changes which the Registration Statement discloses have occurred or may occur or which are described in such letter. (iv) They have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Registration Statement (in each case to the extent that such dollar amounts, percentage and other financial information are derived from the general accounting records of the Company and its variable interest entities subject to the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquires, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. (h) The Agent shall have received from the Company a certificate, dated as of the Initial Closing Date, of the principal financial officer of the Company, to the effect that: (i) The representations and warranties of the Company in this Agreement are true and correct as if made on and as of the date hereof of the certificate, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement. (ii) No stop order or other order suspending the effectiveness of the Registration Statement or any amendment thereof or the qualification of the Notes for offering or sale have been issued, and no proceedings for that purpose have been instituted or, with respect to matters the best of his knowledge, are contemplated by the Commission or any state or regulatory body. (iii) The signer of said certificate has carefully examined the Registration Statement and the Prospectus and any amendments thereof or supplements thereto. (iv) Such documents contain all statements and information required to be included therein; the Registration Statement, or any amendment thereof, does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (v) There has not occurred any change, or any development involving changes a prospective change, which materially and adversely affects the Company’s condition (financial or developments since otherwise), earnings, operations, properties, business or business prospects except as set forth on contemplated in the Prospectus. (vi) Subsequent to the respective dates as of which specified financial information is given in the Registration Statement and the Prospectus, the Company has not incurred any material liabilities or material obligations, direct or contingent, or entered into any Material Agreements, not in the ordinary course of business consistent with past practice, and except as disclosed in the Registration Statement, there has not been any material change in the equity interests, or any material increase in the short-term debt or long- term debt (other than consistent with past practices), or in the issuance of options (other than to directors and employees of the Company), warrants, convertible securities or other rights to purchase the equity interests, of the Company, or any material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, prospects, net worth or results of operations of the Company. (vii) Except as stated in the Registration Statement and Prospectus, there is not pending or, to their knowledge, threatened or contemplated, any action, suit or proceeding to which the Company is a party before or by any court or governmental agency, authority or body, or any arbitrator, which could reasonably be expected to result in any material adverse change of the condition, (financial or otherwise), business, prospects, or results of operations of the Company. (i) The Agent shall have received a certificate of the Secretary of the Company, dated as of a date not more than three days prior such Initial Closing Date, with the documents listed herein attached, and to the effect and certifying as follows: (i) Attached thereto are true and correct copies of the organizational documents of the Company, as amended to the date hereof)of the certificate, and stating that there have been no changes or amendments to the attached organizational documents of the Company, and no resolutions have been adopted by the Board of Directors or members of the Company relating to (A) the amendment of said organizational documents; (B) the merger, consolidation or dissolution of the Company; or (C) the sale of all or substantially all of the assets or business of the Company, and that the Company is in good standing in the State of Ohio and has paid any franchise taxes due as of the date of such certificate. (ii) Attached thereto is a true and correct copy of the governance documents of the Company as in effect as of the date of such certificate and no resolutions have been adopted by the Board of Directors or members of the Company relating to changes or amendments to the attached governance documents. (iii) Attached thereto are true and correct copies of the resolutions of the Board of Directors of the Company relating to the preparation and signing of the Registration Statement and this Agreement, the conclusions issuance and findings sale of the Notes and other related matters, and such resolutions have not been amended, modified or rescinded and are in full force and effect as of the date of such firm certificate and are the only resolutions adopted by the Board of Directors of the Company with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offeringsOffering. (eiv) The Stock shall be included for listing on persons who have signed the NYSERegistration Statement and all amendments thereto were duly elected at the respective times of such signing and duly acting as officers and directors of the Company or as an attorney-in-fact therefor, as set forth in the Registration Statement. (f) There shall not have occurred any event that would permit the Agent to terminate this Agreement pursuant to Section 8.1.