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CENTRAL PARKING FINANCE TRUST
5 1/4% CONVERTIBLE TRUST ISSUED PREFERRED SECURITIES
(liquidation amount $25 per preferred security)
guaranteed by, and convertible into, common stock of
CENTRAL PARKING CORPORATION
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PURCHASE AGREEMENT
March 13, 1998
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇.▇. ▇▇▇▇▇▇▇▇ & Co., LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C.
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
SunTrust Equitable Securities
As Representatives of the several Initial Purchasers
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Central Parking Finance Trust, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), and Central Parking
Corporation, a Tennessee corporation (the "Company"), as depositor of the Trust
and as guarantor, propose, subject to the terms and conditions stated herein,
that the Trust issue and sell to the Initial Purchasers named in Schedule I
hereto (the "Initial Purchasers"), for whom you are acting as the
representatives (the "Representatives") an aggregate of 4,000,000 (the "Firm
Securities") and, at the election of the Initial Purchasers, up to an additional
400,000 (the "Optional Securities"), of 5 1/4% Convertible Trust Issued
Preferred Securities (liquidation amount $25 per preferred security),
representing undivided beneficial interests in the assets of the Trust,
guaranteed on a subordinated basis by the Company as to the payment of
distributions, and as to payments on liquidation or redemption, to the extent
set forth in a guarantee agreement (the "Guarantee") between the Company and
Chase Bank of Texas, National Association, as trustee (the "Guarantee Trustee")
and convertible into common stock, $.01 par value per share ("Company Common
Stock"), of the Company. The Firm Securities and the Optional Securities that
the Initial Purchasers elect to purchase pursuant to Section 2 hereof are
referred to collectively as the "Preferred Securities." The Trust is to
purchase, with the proceeds of the sale of the Preferred Securities and up to
123,711 (or 136,082 assuming full exercise by the Initial Purchasers of the
over-allotment option described herein) of its Common Securities (liquidation
amount $25 per common security) (the "Common Securities," and, collectively with
the Preferred Securities, the "Trust Securities"), $103,092,775 aggregate
principal amount (or $113,402,050 aggregate principal amount assuming full
exercise by the Initial Purchasers of the over-allotment option described
herein) of 5 1/4% Convertible Subordinated Debentures due April 1, 2028 (the
"Convertible
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Debentures") of the Company, to be issued pursuant to an Indenture (the
"Indenture") between the Company and Chase Bank of Texas, National Association,
as trustee (the "Indenture Trustee").
The Company will be the holder of 100% of the Common Securities. The
Trust will be subject to the terms of an Amended and Restated Trust Agreement
(the "Trust Agreement"), among the Company, as Depositor, Chase Bank of Texas,
National Association, as Property Trustee ("Property Trustee"), Chase Manhattan
Bank Delaware, as Delaware Trustee (the "Delaware Trustee") and three individual
trustees who are employees or officers of or affiliated with the Company (the
"Administrative Trustees"), and the holders from time to time, of undivided
beneficial interests in the assets of the Trust. The Property Trustee, the
Delaware Trustee and the Administrative Trustees are collectively referred to
herein as the "Trustees." The Company and the Trust will also enter into a
Registration Rights Agreement (the "Registration Rights Agreement") among the
Company, the Trust and the Initial Purchasers, which shall set forth the
obligations of the Company to file a Shelf Registration Statement (as defined in
the Registration Rights Agreement) in respect of the Preferred Securities, the
Guarantee, the Convertible Debentures and the Company Common Stock issuable upon
conversion of the Convertible Debentures and the Preferred Securities.
1. Each of the Trust and the Company represents and warrants to, and
agrees with, each of the Initial Purchasers that:
(a) A preliminary offering circular, dated February 20, 1998
(the "Preliminary Offering Circular") and an offering circular, dated
March 13, 1998 (the "Offering Circular"), and the Company's Annual
Report on Form 10-K for the fiscal year ended September 30, 1997, the
Company's Quarterly Report on Form 10-Q for the quarter ended December
31, 1997, the Company's Current Reports on Form 8-K filed February 17
and 20, 1998, which are incorporated by reference therein, have been
prepared in connection with the offering of the Preferred Securities,
the Convertible Debentures, the Guarantee and the Company Common Stock
issuable upon the conversion of the Preferred Securities and the
Convertible Debentures. Any reference to the Preliminary Offering
Circular or the Offering Circular shall be deemed to refer to and
include the Company's most recent Annual Report on Form 10-K and all
subsequent documents filed by the Company with the Securities and
Exchange Commission (the "Commission") pursuant to Section 13(a), 13(c)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or prior to the date of the Preliminary Offering
Circular or the Offering Circular, as the case may be, and any
reference to the Preliminary Offering Circular or the Offering
Circular, as the case may be, as amended or supplemented, as of any
specified date, shall be deemed to include (i) any documents filed with
the Commission pursuant to Section 13(a), 13(c) or 15(d) of the
Exchange Act after the date of the Preliminary Offering Circular or the
Offering Circular, as the case may be, and prior to such specified date
and (ii) any Additional Issuer Information (as defined in Section 4(g))
furnished by the Company prior to the completion of the distribution of
the Trust Securities; and all documents filed under the Exchange Act
and so deemed to be included in the Preliminary Offering Circular or
the Offering Circular, as the case may be, or any amendment or
supplement thereto are hereinafter called the "Exchange Act Reports."
The
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Exchange Act Reports, when they were or are filed with the Commission,
conformed or will conform in all material respects to the applicable
requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder. The Preliminary Offering
Circular or the Offering Circular and any amendments or supplements
thereto and the Exchange Act Reports did not and will not, as of their
respective dates, contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Trust or the Company by any Initial Purchaser expressly for use
therein (it being understood that the only information so provided is
the information included in the last paragraph on the cover page, the
fifth paragraph on page three and in the first, second, fourth and
fourteenth paragraphs under the caption "Plan of Distribution" in the
Offering Circular);
(b) The Company and each subsidiary of the Company (as used
herein, the term "subsidiary" includes but is not limited to Central
Parking System Realty, Inc., Square Industries, Inc., Diplomat Parking
Corporation, Civic Parking, LLC and ▇▇▇▇▇▇ System Holding Corp.
("▇▇▇▇▇▇")) and any other corporation, joint venture, or partnership in
which the Company or any subsidiary of the Company has a 50% or greater
ownership interest is duly organized and validly existing and in good
standing under the laws of its jurisdiction of incorporation, with full
power and authority (corporate and other, as the case may be) to own
its properties and conduct its business as now conducted, except where
the failure to be in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole; and the
Company and each subsidiary is duly qualified or authorized to do
business and is in good standing in all jurisdictions wherein the
nature of its business or the character of property owned or leased may
require it to be qualified or authorized to do business, except for
jurisdictions in which the failure to so qualify would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole;
(c) The Trust has been duly created and is validly existing as
a statutory business trust in good standing under the Business Trust
Act of the State of Delaware (the "Delaware Business Trust Act") with
the trust power and authority to own property and conduct its business
as described in the Offering Circular, and has conducted and will
conduct no business other than the transactions contemplated by this
Agreement and described in the Offering Circular; the Trust is not a
party to or bound by any agreement or instrument other than this
Agreement, the Trust Agreement and the agreements and instruments
contemplated by the Trust Agreement and described in the Offering
Circular; based on expected operations and current law, the Trust is
not and will not be classified as an association taxable as a
corporation for United States federal income tax purposes; and the
Trust is not a party to or subject to any action, suit or proceeding of
any nature;
(d) The Preferred Securities have been duly and validly
authorized by the Trust, and, when issued and delivered to the Initial
Purchasers against payment therefor as provided
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herein, will be duly and validly issued and, subject to the terms of
the Trust Agreement, fully paid and non-assessable undivided beneficial
interests in the assets of the Trust and will conform to the
description thereof contained in the Offering Circular and will be in
substantially the form previously delivered to you; the issuance of the
Preferred Securities is not subject to preemptive or other similar
rights; the Preferred Securities will have the rights set forth in the
Trust Agreement, and the terms of the Preferred Securities are valid
and binding on the Trust; the holders of the Preferred Securities (the
"Securityholders") will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware;
(e) The Common Securities have been duly and validly
authorized by the Trust and upon delivery by the Trust to the Company
against payment therefor as described in the Offering Circular, will be
duly and validly issued undivided beneficial interests in the assets of
the Trust and will conform to the description thereof contained in the
Offering Circular; the issuance of the Common Securities is not subject
to preemptive or other similar rights; and at the First Closing Date
(as defined in Section 2(c) hereof), all of the issued and outstanding
Common Securities of the Trust will be directly owned by the Company
free and clear of any Lien (as defined below); and the Trust Securities
are the only interests authorized to be issued by the Trust;
(f) This Agreement has been duly authorized and validly
executed and delivered by the Company and the Trust and constitutes a
valid and legally binding agreement of each of the Company and the
Trust, enforceable against the Company and the Trust in accordance with
its terms (assuming the due execution and delivery hereof by the
Initial Purchasers), except to the extent that (A) enforcement thereof
may be limited by (1) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to the rights of creditors generally and
(2) general principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity), and (B) the
enforceability of indemnification and contribution provisions may be
limited by federal and state securities laws and the policies
underlying such laws.
(g) The Guarantee, the Convertible Debentures, the Trust
Agreement and the Indenture (collectively, the "Guarantor Agreements")
have each been duly authorized and, when executed and delivered by the
Company, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their respective terms, except
to the extent (A) that enforcement thereof may be limited by (1)
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating to
the rights of creditors generally, and (2) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity); (B) with respect to the Indenture, the waiver
contained in Section 515 of the Indenture may be deemed unenforceable
and (C) with respect to the Indenture, the enforceability, under
certain circumstances, of provisions imposing a payment obligation if
the Company is unable to
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comply timely with its registration obligations under the Registration
Rights Agreement may be limited by applicable law;
(h) The Convertible Debentures are entitled to the benefits
provided by the Indenture; each of the Guarantor Agreements will
conform to the descriptions thereof in the Offering Circular and will
be in substantially the form previously delivered to you;
(i) The Registration Rights Agreement has been duly authorized
and, when executed and delivered by each of the Trust and the Company,
will constitute the valid and legally binding obligations of each of
the Trust and the Company, enforceable in accordance with its
respective terms, except to the extent that (A) enforcement thereof may
be limited by (1) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws now or hereafter in effect
relating to the rights of creditors generally, and (2) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), (B) the enforceability
of indemnification and contribution provisions may be limited by
federal and state securities laws and the policies underlying such laws
and (C) the enforceability, under certain circumstances, of provisions
imposing a payment obligation if the Company is unable to comply timely
with its registration obligations under the Registration Rights
Agreement may be limited by applicable law.
(j) The documents that are incorporated by reference in any
Preliminary Offering Circular and Offering Circular or from which
information is so incorporated by reference, when they become effective
or were filed with the Commission, as the case may be, complied in all
material respects with the requirements of the Securities Act of 1933,
as amended (the "Securities Act") or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder (the "Rules
and Regulations").
(k) The Company has full legal right, power and authority to
authorize the offering of the Convertible Debentures, the Guarantee and
the Company Common Stock issuable upon the conversion of the Preferred
Securities and the Convertible Debentures, to execute, deliver and
perform this Agreement and to issue, sell and deliver the Convertible
Debentures, the Guarantee and the Company Common Stock issuable upon
conversion of the Preferred Securities and the Convertible Debentures
(l) The Trust has full legal right, power and authority to
authorize the offering of the Preferred Securities, to execute, deliver
and perform this Agreement and to sell and deliver the Preferred
Securities to the Initial Purchasers as provided herein.
(m) No consent, approval, authorization, or order of any court
or governmental agency or body or third party is required for the
performance of this Agreement by the Company or the Trust or the
consummation by the Company or the Trust of the transactions
contemplated hereby or under the Guarantor Agreements, except such
authorizations, approvals, consents, orders or filings as may be
required under state securities or Blue Sky
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laws in connection with the purchase and distribution of the Preferred
Securities, the Guarantee and the Convertible Debentures or as may be
required under the Registration Rights Agreement. The Company's
execution, delivery and performance of this Agreement and the Guarantor
Agreements and the consummation of the transactions contemplated hereby
and thereby, and the issuance and sale of the Trust Securities by the
Trust, will not result in a breach or violation of, or conflict with,
any of the terms and provisions of, or constitute a default by the
Company under the Amended and Restated Charter or bylaws of the
Company. The Company is not in violation of its Amended and Restated
Charter or bylaws or any law, administrative rule, or regulation or
arbitrator's or administrative or court decree, judgment or order or in
violation or default (there being no existing state of facts which with
notice or lapse of time or both would constitute a default) in the
performance or observance of any Lien (as defined below) other than
violations and defaults which could not reasonably be expected to have
a material adverse effect on the business condition (financial or
otherwise), prospects, net worth, or results of operations of the
Company and its subsidiaries, taken as a whole.
(n) The execution, delivery and performance of this Agreement,
the Registration Rights Agreement and the Guarantor Agreements by the
Company and the Trust, to the extent the Trust is a party to such
agreement, and the consummation of the transactions contemplated hereby
and thereby, will not (1) conflict with or result in a breach or
violation of the Trust Agreement or any of the terms or provisions
thereof, or (2) conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default or cause an
acceleration of any obligation under or result in the imposition or
creation of (or the obligation to create or impose) any security
interest, mortgage, pledge, claim, lien or other encumbrances (each, a
"Lien") with respect to, any bond, note, debenture or other evidence of
indebtedness or any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or the Trust is a
party or by which they are bound, or to which any of the property or
assets of the Company or the Trust is or may be subject, or (3)
contravene any order of any court or governmental agency or body having
jurisdiction over the Company or the Trust or any of their properties,
or violate or conflict with any statute, rule or regulation or
administrative or court decree applicable to the Company or the Trust,
or any of their properties;
(o) The capitalization of the Company as of December 31, 1997
is as set forth under the caption "Capitalization" in the Offering
Circular, and the Company's capital stock, including the Company Common
Stock, conforms to the description thereof contained in the Offering
Circular. All the issued shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and
nonassessable. None of the issued shares of capital stock of the
Company have been issued in violation of any preemptive or similar
rights. Except as contemplated by the Registration Rights Agreement, no
holder of any security of the Company has or will have any right to
require the registration of such security by virtue of any transaction
contemplated by this Agreement. The shares of Company Common Stock
issuable upon the conversion of the Preferred Securities and the
Convertible
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Debentures have been duly and validly authorized and reserved for
issuance and, when issued and delivered in accordance with the
provisions of the Preferred Securities and the Indenture, will be duly
and validly issued, fully paid and nonassessable and will conform to
the descriptions thereof in the Offering Circular; the issuance of the
Company Common Stock upon the conversion of the Preferred Securities
and the Convertible Debentures will not be subject to preemptive or
other similar rights;
(p) As of the date hereof, except as set forth on Schedule II
hereto, all of the outstanding shares of capital stock or equity
interests of the Company's subsidiaries have been duly and validly
authorized and issued and are fully paid and nonassessable and all such
shares and partnership interests are owned by the Company directly or
indirectly through another subsidiary, free and clear of all liens,
claims, encumbrances, security interests, restrictions, shareholder
agreements, voting trusts or other claims of third parties. There are
no preemptive rights or other rights to subscribe for or purchase, or
any restriction upon the transfer of, any shares of capital stock of
the Company's subsidiaries pursuant to any subsidiary's charter,
bylaws, or other governing documents or any agreement or other
instruments to which such subsidiary is a party.
(q) All offers and sales of the Company's securities prior to
the date hereof were at all relevant times duly registered or the
subject of an available exemption from the registration requirements of
the Securities Act and the applicable state securities or Blue Sky
laws.
(r) The consolidated financial statements and the related
notes of the Company included or incorporated by reference in the
Offering Circular present fairly the financial position, results of
operations, and changes in financial position and cash flow of the
Company at the dates and for the periods to which they relate and have
been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods
indicated. The unaudited pro forma financial statements included or
incorporated by reference in the Offering Circular comply in all
material respects with the applicable accounting requirements of
Article 11 of Regulation S-X promulgated by the Commission, and the pro
forma adjustments have been applied properly to the historical
financial statements. The other financial and statistical data included
or incorporated by reference in the Offering Circular fairly presents
the information set forth therein on the basis stated in the Offering
Circular. KPMG Peat Marwick LLP, whose report is incorporated by
reference in the Offering Circular, are independent accountants as
required by the Securities Act and the Rules and Regulations.
(s) Subsequent to the respective dates as of which information
is given in the Offering Circular, and except as stated therein,
neither the Company nor the Trust have sustained any material loss or
interference with their business or properties from fire, flood,
hurricane, earthquake, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or any court or
governmental action, order or decree, or become a
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party to or the subject of any litigation which is material to the
Company or the Trust, nor shall there have been any material adverse
change, or any development involving a prospective material adverse
change, in the business, properties, key personnel, capitalization, net
worth, results of operations or condition (financial or other) of the
Company or the Trust, except in each case as described in or
contemplated by the Offering Circular.
(t) There is not pending, or to the knowledge of the Company
threatened, any action, suit, proceeding, inquiry, or investigation, to
which the Company or any of its subsidiaries or any of the Company's
officers or directors is a party, or to which the property of the
Company or any of its subsidiaries is subject, before or brought by any
court or governmental agency or body, wherein an unfavorable decision,
ruling, or finding could prevent or materially hinder the consummation
of this Agreement or could have a material adverse effect on the
business condition (financial or otherwise), prospects, net worth, or
results of operations of the Company and its subsidiaries, taken as a
whole.
(u) Except as described in the Offering Circular, the Company
and its subsidiaries have good and marketable title to all real and
material personal property owned by them, free and clear of all liens,
charges, encumbrances, or defects except those reflected in the
financial statements herein above described. The real and personal
property and buildings referred to in the Offering Circular which are
leased from others by the Company or its subsidiaries are held under
valid, subsisting and enforceable leases. The Company and its
subsidiaries own or lease all such properties as are necessary to their
operations as now conducted.
(v) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(w) The Company and each of its subsidiaries have filed all
federal, state, and local income, excise, and franchise tax returns
required to be filed through the date hereof and have paid all taxes
shown as due therefrom; and there is no tax deficiency that has been,
nor does the Company or any of its subsidiaries have knowledge of any
tax deficiency which is likely to be asserted against the Company or
any of its subsidiaries, which if determined adversely could materially
and adversely affect the earnings, assets, affairs, business prospects,
or condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole.
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(x) The Company and each of its subsidiaries operate their
businesses in conformity in all material respects with all applicable
statutes, common laws, ordinances, decrees, orders, rules, and
regulations of governmental bodies. The Company and each of its
subsidiaries have all material licenses, approvals, or consents to
operate their businesses in all locations in which such businesses are
currently being operated, and neither the Company nor any of its
subsidiaries is aware of any existing or imminent matter that may
materially adversely impact any of their operations or business
prospects other than as specifically disclosed in the Offering
Circular. No director, officer, or to the Company's knowledge, agent or
employee of the Company or any of its subsidiaries, any other person
associated with or acting for or on behalf of the Company or any of its
subsidiaries, has directly or indirectly made any contribution, gift,
bribe, rebate, payoff, influence payment, kickback, or other payment to
any person, private or public, regardless of form, whether in money,
property, or services (i) to obtain favorable treatment in securing
business, (ii) to pay for favorable treatment for business obtained, or
(iii) to obtain special concessions or for special concessions already
obtained for or in respect of the Company.
(y) Neither the Company nor any of its subsidiaries has failed
to file with the applicable regulatory authorities any statement,
report, information, or form required by any applicable law,
regulation, or order where the failure to file the same would have a
material adverse effect on the Company and its subsidiaries, taken as a
whole, or on their respective abilities to conduct business in any
state; all such filings or submissions were in material compliance with
applicable laws when filed and no deficiencies have been asserted by
any regulatory commission, agency or authority with respect to such
filings or submissions. Neither the Company nor any of its subsidiaries
has failed to maintain in full force and effect any material license or
permit necessary or proper for the conduct of their respective
businesses, or received any notification that any revocation or
limitation thereof is threatened or pending, and, except as disclosed
in the Offering Circular, there is not pending any change under any
law, regulation, license or permit which could materially adversely
affect any of their respective businesses, operations, properties or
prospects. Neither the Company nor any of its subsidiaries has received
any notice of violation of or been threatened with a charge of
violating and are not, to the best of their knowledge, under
investigation with respect to a possible violation of any provision of
any law, regulation, or order.
(z) No labor dispute exists with the Company's or any of its
subsidiaries' employees or is imminent which could materially adversely
affect the Company. Neither the Company nor any of its subsidiaries is
aware of any existing or imminent labor disturbance by any of their
employees which could be expected to materially adversely affect the
condition (financial or otherwise), results of operations, properties,
affairs, management, business affairs, or business prospects of the
Company and its subsidiaries, taken as a whole.
(aa) The Company owns or possesses, or can acquire on
reasonable terms, the patents, licenses, copyrights, trademarks,
service marks and trade names presently employed by it in connection
with the businesses now operated by it, and neither the Company nor any
of its subsidiaries has received any notice of infringement of or
conflict with asserted rights
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of others with respect to any of the foregoing which, alone or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs, or
business prospects of the Company and its subsidiaries, taken as a
whole.
(bb) Neither the Company nor any of the directors, officers,
or to the Company's knowledge, employees or agents of the Company, have
taken and will not take, directly or indirectly, any action designed to
cause or result in, or which has constituted or which might be expected
to constitute, stabilization or manipulation of the price of any
security of the Company in connection with the offering, the sale or
resale of the of the Preferred Securities or the Company Common Stock
issuable upon exercise or conversion of Preferred Securities and the
Convertible Debentures.
(cc) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
hazardous substances by the Company or any of its subsidiaries (or, to
the knowledge of the Company, any of its or their predecessors in
interest) at, upon or from any of the property now or previously owned
or leased by the Company or any of its subsidiaries in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit or which could reasonably be expected to require remedial action
under any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action which
could not be reasonably likely to have, singularly or in the aggregate
with all such violations and remedial actions, a material adverse
effect on the business, condition (financial or otherwise), prospects,
properties, net worth or results of operations of the Company and its
subsidiaries, taken as a whole; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any
kind onto such property or of any hazardous substances due to or caused
by the Company or any of its subsidiaries or with respect to which the
Company or any of its subsidiaries had knowledge, except for any such
spill, discharge, leak, emission, injection, escape, dumping or release
which would not be reasonably likely to have, singularly or in the
aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, dumpings or releases, a material adverse effect on
the business, condition (financial or otherwise), prospects,
properties, net worth or results of operations of the Company and its
subsidiaries, taken as a whole; and the term "hazardous substances"
shall have the meaning specified in any applicable local, state,
federal and foreign laws or regulations with respect to environmental
protection.
(dd) The Company and its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks
and in such amounts as management believes is appropriate to the
business of the Company and its subsidiaries; all such policies of
insurance insuring the Company and its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force
and effect; the Company and its subsidiaries are in compliance with the
terms of such policies and instruments in all material respects; and
there are no claims by the Company or any of its subsidiaries under any
such
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policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause.
(ee) The Company is not, and will not become as a result of
the offering and sale of the Trust Securities and the Company Common
Stock issuable upon the conversion of the Preferred Securities and
Convertible Debentures, an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940. The Trust is not required to be
registered under the Investment Company Act.
(ff) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale
of the Preferred Securities) will violate or result in a violation of
Section 7 of the Exchange Act, or any regulation promulgated
thereunder, including, without limitation, Regulations G, T, U, and X
of the Board of Governors of the Federal Reserve System;
(gg) The statements set forth in the Offering Circular under
the caption "Description of the Preferred Securities," "Description of
the Guarantee," "Description of the Convertible Debentures," "Effect of
Obligations under the Convertible Debentures and the Guarantee," and
"Description of Capital Stock," insofar as they purport to constitute a
summary of the terms of the Preferred Securities, the Convertible
Debentures, the Guarantee, the Company Common Stock and the documents
referred to therein fairly summarize or describe such terms and
documents in all material respects;
(hh) When the Preferred Securities and Guarantee are issued
and delivered pursuant to this Agreement and when the Convertible
Debentures are issued (whether initially to the Trust or subsequently
to the holders of Preferred Securities in exchange for the Preferred
Securities), the Preferred Securities, the Guarantee and the
Convertible Debentures will not be of the same class (within the
meaning of Rule 144A under the Act) as securities which are listed on a
national securities exchange registered under Section 6 of the Exchange
Act, or quoted in a U.S. automated inter-dealer quotation system;
(ii) The Company is subject to Section 13 or 15(d) of the
Exchange Act;
(jj) Neither the Trust nor the Company, nor any person acting
on its or their behalf (other than the Initial Purchasers, as to which
no representation is made) has offered or sold the Preferred
Securities, the Convertible Debentures or the Guarantee by means of any
general solicitation or general advertising within the meaning of Rule
502(c) under the Act or, with respect to any such securities sold
outside the United States to non-U.S. persons (as defined in Rule 902
under the Act), by means of any directed selling efforts within the
meaning of Rule 902 under the Securities Act and the Company, any
affiliate of the Company and any person acting on its or their behalf
(other than the Initial Purchasers, as to which no representation is
made) has complied with and will comply with the "offering
restrictions" (as defined in such Rule 902) requirements of Regulation
S;
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(kk) Within the preceding six months, with the exception of
the concurrent offering by the Company of up to 2,137,500 shares of
Company Common Stock pursuant to a registered public offering (the
"Company Common Stock Offering") and any securities issued pursuant to
the acquisition of ▇▇▇▇▇▇, neither the Trust, the Company nor any other
person acting on behalf of the Trust or the Company has offered or sold
to any person any Preferred Securities, Convertible Debentures,
Guarantee or Company Common Stock or any securities, or any guarantee
of any securities, of the same or a similar class as the Preferred
Securities, Convertible Debentures, Guarantee or Company Common Stock,
other than securities sold to the Initial Purchasers hereunder and
other than shares of Company Common Stock issuable pursuant to benefit
plans maintained for the officers, directors or employees of the
Company. The Trust and the Company will take reasonable precautions
designed to insure that any offer or sale, direct or indirect, in the
United States or to any U.S. person (as defined in Rule 902 under the
Act) of any Preferred Securities, Convertible Debentures, Guarantee and
shares of Company Common Stock or any substantially similar security
issued by the Trust and the Company, within six months subsequent to
the date on which the distribution of the Securities has been completed
(as notified to the Trust and the Company by Bear, ▇▇▇▇▇▇▇ & Co. Inc.),
is made under restrictions and other circumstances reasonably designed
not to affect the status of the offer and sale of the Preferred
Securities, Convertible Debentures, Guarantee and shares of Company
Common Stock issuable upon conversion of the Preferred Securities and
the Convertible Debentures in the United States and to U.S. persons
contemplated by this Agreement as transactions exempt from the
registration provisions of the Act;
(ll) Neither the Company nor any affiliate (as such term is
defined in Rule 501(b) under the Act) has, directly or through any
agent, sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the Act) which is
or will be integrated with the sale of the Preferred Securities, the
Convertible Debentures, the Guarantee or the Company Common Stock
issuable upon exercise or conversion of Preferred Securities and the
Convertible Debentures in a manner that would require the registration
of the Preferred Securities under the Act; and
(mm) Assuming the accuracy of your representations contained
in Section 3 hereof and your compliance with your agreements therein
set forth, it is not necessary, in connection with the sale and
delivery of the Preferred Securities, the Convertible Debentures, the
Guarantee or the Company Common Stock issuable upon conversion of
Preferred Securities and the Convertible Debentures by you, in each
case in the manner contemplated by this Agreement and the Offering
Circular, to register the Preferred Securities under the Act or to
qualify the Indenture under the Trust Indenture Act of 1939.
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2. Purchase, Sale and Delivery of the Preferred Securities.
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Trust and the Company agree that the
Trust shall issue and sell to each of the Initial Purchasers, and each
of the Initial Purchasers, severally and not jointly, agrees to
purchase at a purchase price of $25 per Preferred Security, the number
of Firm Securities set forth opposite such Initial Purchaser's name in
Schedule I hereto, plus such additional number of Firm Securities which
such Initial Purchaser may become obligated to purchase pursuant to
Section 8 hereof.
(b) The Trust and the Company also grant to the Initial
Purchasers an option to purchase, solely for the purpose of covering
over-allotments in the sale of Firm Preferred Securities, if any, all
or any portion of the Optional Securities at the purchase price per
Preferred Security set forth above. The option granted hereby may be
exercised as to all or any part of the Optional Securities at any time
(but only once) within 30 days after the date of the Offering Circular.
The Initial Purchasers shall not be under any obligation to purchase
any Optional Securities prior to the exercise of such option. The
option granted hereby may be exercised by Bear, ▇▇▇▇▇▇▇ & Co. Inc.
giving written notice to the Company setting forth the number of
Optional Securities to be purchased and the date and time for delivery
of and payment for such Optional Securities and stating that the
Optional Securities referred to therein are to be used for the purpose
of covering over-allotments in connection with the distribution and
sale of the Firm Securities. If such notice is given prior to the First
Closing Date (as defined below), the date set forth therein for such
delivery and payment shall not be earlier than two full business days
thereafter or the First Closing Date, whichever occurs later. If such
notice is given on or after the First Closing Date, the date set forth
therein for such delivery and payment shall not be earlier than three
full business days thereafter. In either event, the date so set forth
shall not be more than 15 full business days after the date of such
notice. The date and time set forth in such notice is herein called the
"Option Closing Date." Upon exercise of the option, the Company shall
become obligated to sell to the Initial Purchasers, and, subject to the
terms and conditions herein set forth, the Initial Purchasers shall
become obligated to purchase, for the account of each Initial
Purchaser, from the Company, severally and not jointly, the number of
Optional Securities specified in such notice. Optional Securities shall
be purchased for the accounts of the Initial Purchasers in proportion
to the number of Firm Securities set forth opposite such Initial
Purchaser's name in Schedule I hereto, except that the respective
purchase obligations of each Initial Purchaser shall be adjusted so
that no Initial Purchaser shall be obligated to purchase fractional
Optional Securities.
(c) A global certificate or certificates for the Firm
Securities which each Initial Purchaser has agreed to purchase
hereunder shall be delivered by or on behalf of the Trust to Bear,
▇▇▇▇▇▇▇ & Co. Inc., through the facilities of DTC, for the account of
such Initial Purchaser against payment by such Initial Purchaser or on
its behalf of the purchase price therefor by wire transfer to an
account designated by the Trust in Federal (same day) funds, such time
of delivery against payment being herein referred to as the "First
Closing Date." The First Closing Date and the Option Closing Date are
herein individually referred to as the "Closing Date" and collectively
referred to as the "Closing Dates." A global certificate or
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certificates for the Optional Securities which each Initial Purchaser
shall have agreed to purchase hereunder shall be similarly delivered by
or on behalf of the Trust on the Option Closing Date. The global
certificate or certificates for the Preferred Securities will be in
such denominations and registered in such names as Bear, ▇▇▇▇▇▇▇ & Co.
Inc. may request not less than 48 hours prior to the First Closing Date
or the Option Closing Date, as the case may be. Such certificate or
certificates will be made available for checking at the office of DTC
or its designated custodian, at least 24 hours prior to the First
Closing Date or the Option Closing Date, as the case may be. It is
understood that the Representatives may (but shall not be obligated to)
make payment on behalf of any Initial Purchaser for the Preferred
Securities to be purchased by such Initial Purchaser. No such payment
shall relieve such Initial Purchaser from any of its obligations
hereunder. The Preferred Securities to be purchased by each Initial
Purchaser hereunder will be represented by one or more global Preferred
Securities in book-entry form which will be deposited by or on behalf
of the Trust with DTC or its designated custodian.
(d) As compensation to the Initial Purchasers for their
commitments hereunder, and in view of the fact that the proceeds of the
sale of the Preferred Securities will be used by the Trust to purchase
the Convertible Debentures of the Company at each Closing Date the
Company will pay to Bear, ▇▇▇▇▇▇▇ & Co. Inc., for the accounts of the
several Initial Purchasers, an amount equal to $0.75 per Preferred
Security for the Preferred Securities to be delivered by the Company at
such Closing Date.
3. Covenants of the Initial Purchasers. Upon the authorization by you
of the release of the Preferred Securities, the several Initial Purchasers
propose to offer the Preferred Securities for sale upon the terms and conditions
set forth in this Agreement and the Offering Circular, and each Initial
Purchaser hereby represents and warrants to and agrees with the Trust and the
Company that:
(a) It will offer and sell the Preferred Securities only (i)
to persons who it reasonably believes are "qualified institutional
buyers" ("QIBs") within the meaning of Rule 144A of the Securities Act
under the Act in transactions meeting the requirements of Rule 144A,
(ii) in an offshore transaction complying with Rule 903 or Rule 904 of
Regulation S under the Securities Act, and (iii) upon the terms and
conditions set forth in Annex I to the Trust Agreement; and
(b) It will not offer or sell the Preferred Securities, the
Convertible Debentures, the Guarantee or the shares of Company Common
Stock issuable upon conversion of the Preferred Securities and the
Convertible Debentures by any form of general solicitation or general
advertising, including but not limited to the methods described in Rule
502(c) under the Act.
4. Covenants of the Company. The Trust and the Company, jointly and
severally, agree with each of the Initial Purchasers:
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(a) To prepare the Offering Circular in a form approved by
you; to make no amendment or any supplement to the Offering Circular
which shall be disapproved by you promptly after reasonable notice
thereof; and to furnish you with copies thereof;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Preferred Securities, the Convertible
Debentures, the Guarantee and the shares of Company Common Stock
issuable upon conversion of the Preferred Securities and the
Convertible Debentures for offering and sale under the securities laws
of such jurisdictions in the United States as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Preferred Securities, provided that
in connection therewith the Company shall not be required to qualify as
a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Initial Purchasers with five copies of the
Offering Circular and each amendment or supplement thereto signed by an
authorized officer of the Company with the independent accountants'
report incorporated by reference in the Offering Circular, and any
amendment or supplement containing amendments to the financial
statements covered by such report, signed by the accountants, and
additional copies thereof in such quantities as you may from time to
time reasonably request, and if, at any time prior to the Effective
Time of the Shelf Registration Statement (each as defined in the
Registration Rights Agreement), any event shall have occurred as a
result of which the Offering Circular as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Offering Circular is delivered, not misleading, or, if for any other
reason it shall be necessary or desirable during such same period to
amend or supplement the Offering Circular, to notify you and upon your
request to prepare and furnish without charge to each Initial Purchaser
and to any dealer in securities as many copies as you may from time to
time reasonably request of an amended Offering Circular or a supplement
to the Offering Circular which will correct such statement or omission.
(d) During the period beginning from the date hereof and
continuing for a period of one year after the First Closing Date, or,
if applicable, the Option Closing Date, not, and will not permit any of
their "affiliates" (as defined by Rule 144A of the Securities Act) to,
resell any Preferred Securities, Convertible Debentures or shares of
Company Common Stock issuable upon conversion of the Preferred
Securities and the Convertible Debentures which constitute "restricted
securities" under Rule 144 of the Securities Act that have been
reacquired by any of them;
(e) During the period beginning from the date hereof and
continuing for a period of 180 days after the date of the Offering
Circular, not to offer, issue, sell, contract to sell, grant any option
(other than the grant of options by the Company pursuant to plans in
effect
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on the date hereof) for the sale of, or otherwise dispose of
("Transfer"), directly or indirectly, (a) any trust certificates or
other securities of the Trust (other than the Preferred Securities and
the Common Securities), (b) any preferred stock or any other security
of the Company or its affiliates that is substantially similar to the
Preferred Securities, (c) any shares of Company Common Stock (other
than the shares offered in the concurrent offering by the Company
Common Stock Offering and, in the case of the Company only, shares of
Company Common Stock issuable upon conversion of the Preferred
Securities or pursuant to the exercise of options awarded pursuant to
plans in effect on the date hereof), or (d) any other securities which
are convertible into, or exercisable or exchangeable for, any of (a)
through (c) above, without the prior consent of Bear, ▇▇▇▇▇▇▇ & Co.
Inc. and ▇.▇. ▇▇▇▇▇▇▇▇ & Co., on behalf of the Initial Purchasers, for
a period of 180 days after the date of the Offering Circular.
(f) Not to be or become, at any time prior to the expiration
of three years after the First Closing Date, or, if applicable, the
Option Closing Date, an open-end investment company, unit investment
trust, closed-end investment company or face-amount certificate company
that is or is required to be registered under Section 8 of the
Investment Company Act;
(g) At any time when the Company or the Trust is not subject
to Section 13 or 15(d) of the Exchange Act, for the benefit of holders
from time to time of Preferred Securities or Convertible Debentures, to
furnish at the Company's or the Trust's expense, as appropriate, upon
request, to holders of Preferred Securities or Convertible Debentures
and prospective purchasers of such securities information (the
"Additional Issuer Information") satisfying the requirements of
subsection (d)(4)(i) of Rule 144A under the Securities Act;
(h) To use its best efforts to cause the Company Common Stock
issuable upon conversion of the Preferred Securities to be listed for
quotation on the New York Stock Exchange or other stock exchange or
trading system on which the Company Common Stock primarily trades on or
prior to the Effective Time of the Shelf Registration Statement (each
as defined under the Registration Rights Agreement).
(i) To furnish to the holders of the Preferred Securities as
soon as practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries
certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the date of
the Offering Circular (unless such quarter is the fourth fiscal
quarter, in which case beginning with the second fiscal quarter ending
after the date of the Offering Circular)), consolidated summary
financial information of the Company and its subsidiaries for such
quarter in reasonable detail;
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(j) During a period of five years from the date of the
Offering Circular, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders of the
Company, and to deliver to you (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed
with the Commission or any securities exchange on which the Preferred
Securities or any class of securities of the Company is listed; and
(ii) such additional information concerning the business and financial
condition of the Company as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to the
extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its stockholders generally or to
the Commission);
(k) In the case of the Company, to issue the Guarantee
concurrently with the issue and sale of the Preferred Securities as
contemplated herein;
(l) The Trust and the Company shall file, on or prior to 60
days after the First Closing Date, and use its best efforts to cause to
be declared or become effective under the Securities Act, on or prior
to 150 days after the First Closing Date, a shelf registration
statement providing for the registration of the Preferred Securities,
the Convertible Debentures, the Guarantee and the Company Common Stock
issuable upon conversion of the Preferred Securities and the
Convertible Debentures, all in a manner which will permit persons who
acquire the Preferred Securities, the Convertible Debentures, the
Guarantee and the Company Common Stock issuable upon conversion of the
Preferred Securities and the Convertible Debentures to resell such
securities, all in accordance with the terms of a registration rights
agreement, to be dated as of the First Closing Date, among the Trust,
the Company and the Initial Purchasers (the "Registration Rights
Agreement"), and to use its best efforts to maintain the effectiveness
of such registration statement for two years after such First Closing
Date (subject to certain exceptions set forth in the Registration
Rights Agreement);
(m) To use the net proceeds received by it from the sale of
the Preferred Securities in the case of the Trust, and the Convertible
Debentures, in the case of the Company, pursuant to this Agreement in
the manner specified in the Offering Circular under the caption "Use of
Proceeds";
(n) To reserve and keep available at all times, free of
preemptive rights, shares of Company Common Stock for the purpose of
enabling the Company to satisfy any obligations to issue shares of its
Company Common Stock upon conversion of the Preferred Securities and
the Convertible Debentures;
(o) To refrain from registering, whether directly or
indirectly through arrangements with DTC or otherwise, any transfers of
the Preferred Securities not made in accordance with the provisions of
Regulation S under the Securities Act and not otherwise exempt from
registration under the Act; and
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(p) The Trust and the Company will not take, directly or
indirectly, any action designed to cause or result in, or which might
constitute or be expected to constitute, stabilization or manipulation
of the price of any security of the Company in connection with the
offering, the sale or resale of the Preferred Securities, the
Guarantee, the Convertible Debentures or the Company Common Stock
issuable upon exercise or conversion of Preferred Securities and the
Convertible Debentures.
5. Expenses. The Company agrees with the Initial Purchasers that
whether or not the transactions contemplated by this Agreement are consummated
or this Agreement becomes effective or is terminated, the Company will pay all
fees and expenses incident to the performance of the obligations of the Company
and the Trust hereunder, including, but not limited to, (i) the fees,
disbursements and expenses of the Trust's and the Company's counsel and
accountants in connection with the issue of the Preferred Securities and the
shares of Company Common Stock issuable upon conversion of the Preferred
Securities and the Convertible Debentures and all other expenses in connection
with the preparation, printing and filing of the Preliminary Offering Circular
and the Offering Circular and any amendments and supplements thereto and the
mailing and delivering of copies thereof to the Initial Purchasers; (ii) the
cost of printing or producing this Agreement, the Indenture, the Trust
Agreement, the Guarantee, the Registration Rights Agreement, any Blue Sky and
legal investment memorandum, any closing documents (including any compilations
thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Preferred Securities; (iii) all expenses in connection with
the qualification of the Preferred Securities, the Convertible Debentures and
the shares of Company Common Stock issuable upon conversion of the Preferred
Securities and the Convertible Debentures for offering and sale under state
securities laws as provided in Section 4(b) hereof; (iv) the fees, disbursements
and expenses of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special tax counsel to
the Trust; (v) the cost of preparing the Preferred Securities and the
Convertible Debentures; (vi) the fees and expenses of the Trustees, the
Indenture Trustee and Guarantee Trustee and any other agent thereof and the fees
and disbursements of their counsel, including the fees and disbursements of
counsel for the Initial Purchasers in connection with such qualification and in
connection with the Blue Sky and legal investment surveys; (vii) any cost
incurred in connection with the listing of the shares of Company Common Stock
issuable upon conversion of the Preferred Securities and the Convertible
Debentures; and (viii) all other costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for
in this Section. It is understood, however, that, except as provided in this
Section, and Sections 7 and 10 hereof, the Initial Purchasers will pay all of
their own costs and expenses, including the fees of their counsel, transfer
taxes on resale of any of the Preferred Securities by them, and any advertising
expenses connected with any offers they may make. The Company shall not in any
event be liable to any of the Initial Purchasers for the loss of anticipated
profits from the transactions covered by this Agreement.
6. Conditions of the Initial Purchasers' Obligations. The respective
obligations of the Initial Purchasers to purchase and pay for the Firm
Securities and Optional Securities, shall be subject, in their reasonable
discretion, to the accuracy of the representations and warranties of the Trust
and the Company herein as of the date hereof and as of the Closing Date as if
made on and as
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of the Closing Date, to the accuracy of the statements of the Company's officers
made pursuant to the provisions hereof, to the performance by the Company and
the Trust of all of their covenants and agreements hereunder, and to the
following additional conditions:
(a) Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC, counsel for the Initial
Purchasers, shall have furnished to you such opinion or opinions, dated
the Closing Date, with respect to this Agreement, the Company Common
Stock, the Convertible Debentures, the Indenture, the Guarantee, the
Trust Agreement, the Registration Rights Agreement and the Offering
Circular, as well as such other related matters as you may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters;
(b) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President, General Counsel and
Secretary of the Company, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
P.C., counsel for the Company, shall have furnished to you their
written opinions, dated the Closing Date, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly organized and is
validly existing in good standing as a corporation under the
laws of the State of Tennessee, with corporate power and
authority to own its properties and conduct its business as
now conducted;
(ii) As of the dates specified therein, the Company
had authorized and issued capital stock as set forth under the
caption "Capitalization" in the Offering Circular. All of the
outstanding shares of the capital stock of the Company have
been duly authorized and are validly issued, fully paid and
nonassessable. The capital stock of the Company conform to the
description thereof contained in the Offering Circular;
(iii) Each of the Company's subsidiaries that are
"significant" as such term is defined in Regulation S-X
promulgated by the Commission has been duly organized and is
validly existing under the laws of its jurisdiction of
incorporation or organization, as applicable, with the
corporate or partnership power and authority to own its
properties and conduct its business as now conducted. The
issued and outstanding shares of capital stock of the
Company's corporate subsidiaries have been duly and validly
authorized and issued, are fully paid and nonassessable, and
are owned beneficially and of record by the Company in the
amounts set forth in an exhibit to the opinion, and, to such
counsel's knowledge, free and clear of liens, claims,
encumbrances, security interests, voting trusts or other
defects of title whatsoever. All interests in partnership
subsidiaries of the Company are owned beneficially and of
record in the percentages set forth in an exhibit to the
opinion, and, to such counsel's knowledge, are owned free and
clear of liens, claims, encumbrances, security interests, or
other defects of title whatsoever;
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(iv) The Company is duly qualified to do business
as a foreign corporation in good standing in all jurisdictions
where the failure to so qualify would have a material adverse
effect upon the Company and its subsidiaries, taken as a
whole. The Company holds all licenses, certificates, permits,
franchises and authorizations from governmental authorities
that are material to the conduct of its business in all
locations in which such business is currently being conducted;
(v) Except as contemplated by the Registration
Rights Agreement, to the best of such counsel's knowledge, no
holder of any security of the Company has any right to require
registration of shares of Company Common Stock or any other
security of the Company, except for those registration rights
granted in connection with the acquisition of ▇▇▇▇▇▇.
(vi) The Company Common Stock issuable upon the
conversion of the Preferred Securities and the Convertible
Debentures has been duly authorized by the Company and
reserved for issuance upon conversion and, if and when issued
in accordance with the Trust Agreement and the Indenture, will
be validly issued and fully paid and nonassessable and will
conform to the description of the Company Common Stock
contained in the Offering Circular; and the issuance of such
Company Common Stock is not subject to any preemptive rights
under the Delaware General Corporation Law, or any other
similar rights that entitle or will entitle any person to
acquire any shares of Company Common Stock from the Company
upon the issuance of such shares by the Company; and all of
the issued and outstanding Common Securities are directly
owned by the Company free and clear of all liens,
encumbrances, equities or claims;
(vii) Each of the Company's subsidiaries is duly
qualified to do business in all jurisdictions where the
failure to so qualify would have a material adverse effect
upon the Company and its subsidiaries, taken as a whole. Each
subsidiary holds all licenses, certificates, permits,
franchises and authorizations from governmental authorities
that are material to the conduct of its business in all
locations in which such business is currently conducted;
(viii) Except as described in the Offering Circular,
there is not pending, or to the best knowledge of such counsel
threatened, any action, suit, proceeding, inquiry or
investigation, to which the Company or any of its
subsidiaries, or to which the property of the Company or any
of its subsidiaries is subject, before or brought by any court
or governmental agency or body, which, if determined adversely
to the Company, could result in any material adverse change in
the business, financial position, net worth or results of
operations, or could materially adversely affect the
properties or assets, of the Company;
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(ix) To the best knowledge of such counsel, the
Company or any of its subsidiaries is not in violation of any
law, ordinance, administrative or governmental rule or
regulation applicable to the Company or any of its
subsidiaries and material to the Company or any of its
subsidiaries or any decree of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries;
(x) All offers and sales of the Company's
securities prior to the date hereof were at all relevant times
duly registered or exempt from the registration requirements
of the Securities Act and were duly registered or the subject
of any exemption from the registration requirements of
applicable state securities or Blue Sky laws;
(xi) The Exchange Act Reports (other than the
financial statements and related financial information
therein, as to which such counsel need express no opinion),
when they were filed with the Commission, complied as to form
in all material respects with the requirements of the Exchange
Act, and the Rules and Regulations; and nothing has come to
the attention of such counsel that causes him to believe that
any of such documents (other than the financial statements and
related financial information therein, as to which such
counsel need express no opinion), when they were so filed,
contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading;
(xii) The Company has full legal right, power and
authority to enter into this Agreement and the Guarantor
Agreements, and this Agreement and the Guarantor Agreements,
upon due execution, authentication and delivery, have been
duly authorized, executed, and delivered by the Company. This
Agreement and the Guarantor Agreements constitute valid and
legally binding obligations of the Company enforceable against
the Company in accordance with their terms, except to the
extent that (A) enforcement thereof may be limited by (1)
bankruptcy, insolvency, fraudulent transfer, rehabilitation,
conservation, reorganization, moratorium or other similar laws
now or hereafter in effect relating to the rights of creditors
generally, and (2) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or
in equity); (B) with respect to the Indenture, the waiver
contained in Section 515 of the Indenture may be deemed
unenforceable, (C) with respect to this Agreement, the
enforceability of indemnifica tion and contribution provisions
may be limited by federal and state securities laws and the
policies underlying such laws, and (D) with respect to the
Indenture, the enforceability, under certain circumstances, of
provisions imposing a payment obligation if the Company is
unable to comply timely with its registration obligations
under the Registration Rights Agreement may be limited by
applicable law; the Convertible Debentures are entitled to the
benefits provided by the Indenture;
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(xiii) The Registration Rights Agreement has been
duly authorized and, when executed and delivered by the
Company, will constitute the valid and legally binding
obligations of the Company, enforceable in accordance with
their respective terms, except to the extent that (A)
enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
or other similar laws now or hereafter in effect relating to
the rights of creditors generally, and (2) general principles
of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity), (B) the enforceability
of indemnification and contribution provisions may be limited
by federal and state securities laws and the policies
underlying such laws, and (C) the enforceability, under
certain circum stances, of provisions imposing a payment
obligation if the Company is unable to comply timely with its
registration obligations under the Registration Rights
Agreement may be limited by applicable law.
(xiv) Assuming the accuracy of your representations
contained in Section 3 hereof and your compliance with your
agreements therein set forth and assuming the accuracy of the
Company's and the Trusts's representations contained in
paragraphs (jj), (kk) and (ll) of Section 1 hereof and their
compliance with their agreements set forth in Section 4, no
registration of the Preferred Securities, the Convertible
Debentures or the Guarantee under the Act, and no
qualification of any indenture under the Trust Indenture Act
of 1939 with respect thereto, is required for the offer, sale
and initial resale of the Preferred Securities, the
Convertible Debentures or the Guarantee by the Initial
Purchasers in the manner contemplated by this Agreement and
the Offering Circular;
(xv) The Company is not, and will not be as a
result of the consummation of the transactions contemplated by
this Agreement, an "investment company" within the meaning of
the Investment Company Act of 1940. The Trust is not required
to be registered under the Investment Company Act of 1940;
(xvi) No consent, approval, authorization, or order
of any court or governmental agency or body or, to such
counsel's knowledge, any third party is required for the
performance of this Agreement or the Guarantor Agreements or
the consummation by the Company or the Trust of the
transactions contemplated hereby and thereby except such
authorizations, approvals, consents, orders, registrations or
filings as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the
Preferred Securities, the Guarantee and the Convertible
Debentures or as may be required under the Registration Rights
Agreement;
(xvii) The Company's execution, delivery and
performance of this Agreement and the Guarantor Agreements and
the consummation of the transactions
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contemplated hereby and thereby will not result in a breach or
violation of, or conflict with, any of the terms and
provisions of, or constitute a default by the Company under
the Amended and Restated Charter or bylaws of the Company. The
Company is not in violation of its Amended and Restated
Charter or bylaws or any law, administrative rule, or
regulation or arbitrator's or administrative or court decree,
judgment or order or in violation or default (there being no
existing state of facts which with notice or lapse of time or
both would constitute a default) in the performance or
observance of any Lien other than violations and defaults
which could not reasonably be expected to have a material
adverse effect on the business condition (financial or
otherwise), prospects, net worth, or results of operations of
the Company and its subsidiaries, taken as a whole;
(xviii) The execution, delivery and performance of
this Agreement, the Registration Rights Agreement and the
Guarantor Agreements by the Company and the consummation of
the transactions contemplated hereby and thereby, will not (1)
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default or cause an
acceleration of any obligation under or result in the
imposition or creation of (or the obligation to create or
impose) any Lien with respect to, any bond, note, debenture or
other evidence of indebtedness or any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument
to which the Company is a party or by which it is bound, or to
which any of the property or assets of the Company is or may
be subject, or (2) contravene any order of any court or
governmental agency or body having jurisdiction over the
Company or any of its properties, or violate or conflict with
any statute, rule or regulation or administrative or court
decree applicable to the Company, or any of its properties;
(xix) The statements set forth in the Offering
Circular under the captions "Description of the Preferred
Securities," "Description of the Guarantee," "Descrip tion of
the Convertible Debentures," "Effect of Obligations Under the
Convertible Debentures and the Guarantee," and "Description of
Capital Stock," insofar as they purport to constitute a
summary of the terms of the Preferred Securities, the
Convertible Debentures, the Guarantee, the Company Common
Stock and the documents referred to therein, and under the
caption "Plan of Distribution" insofar as they purport to
describe the provisions of the law and the documents described
therein, fairly summarize or describe such terms, documents
and laws in all material respects.
In addition to the matters set forth above, such
opinion shall also include a statement to the effect that such
counsel have participated in conferences with officers and
other representatives of the Company and the Trust,
representatives of the independent public accountants of the
Company, representatives of the Initial Purchasers and their
counsel at which the contents of the Offering Circular and
related matters were discussed and, although such counsel are
not passing on and do
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not assume any responsibility for the accuracy, completeness
or fairness contained in the Offering Circular, that nothing
has come to the attention of such counsel which leads them to
believe that the Offering Circular or any amendment or
supplement thereto, or any document incorporated by reference
therein, as of the respective dates thereof and as of the
Closing Date, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading (except that such counsel
need express no view as to financial statements, schedules and
other financial information included therein). In rendering
such opinion, counsel may rely as to matters of fact, to the
extent counsel deems proper, on certificates of responsible
officers of the Company and public officials;
(c) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C., special
Delaware counsel for the Trust, shall have furnished to you their
written opinions, dated the Closing Date, in form and substance
satisfactory to you, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act;
(ii) The Trust Securities conform to the description
thereof contained in the Offering Circular;
(iii) Under the Delaware Business Trust Act and the
Trust Agreement, the Trust has the trust power and authority
(a) to own its properties and conduct its business, (b) to
execute and deliver this Agreement, the Trust Agreement, the
Registration Rights Agreement and any other agreement or
certificate required to be executed and delivered by the Trust
hereby and thereby and (c) to issue and perform its
obligations under the Trust Securities, as described in the
Trust Agreement;
(iv) To the best of such counsel's knowledge, the
Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Trust Agreement and
the agreements and instruments contemplated by the Trust
Agreement and described in the Offering Circular; and there
are no legal or governmental proceedings pending to which the
Trust is a party or of which any property of the Trust is the
subject and no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(v) The execution, delivery and performance of this
Agreement and the Registration Rights Agreement by the Trust,
and the consummation of the transactions contemplated hereby
and thereby, will not (1) conflict with or result in a breach
or violation of the Trust Agreement or any of the terms or
provisions thereof, or (2) contravene any order of any court
of governmental agency or body having jurisdiction over the
Trust or any of its properties, or violate or conflict with
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any statue, rule or regulation or administrative or court
decree applicable to the Trust or any of its properties;
(vi) The Trust has full legal right, power and
authority to enter into this Agreement and the Trust
Agreement, and this Agreement and the Trust Agreement, upon
due execution, authentication and delivery, have been duly
authorized, executed, and delivered by the Trust. This
Agreement and the Trust Agreement constitute valid and legally
binding obligations of the Trust enforceable against the Trust
and the Trustees in accordance with their terms, except to the
extent that (A) enforcement thereof may be limited by (1)
bankruptcy, insolvency, fraudulent transfer, rehabilitation,
conservation, reorganization, moratorium or other similar laws
now or hereafter in effect relating to the rights of creditors
generally, and (2) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or
in equity); (B) with respect to this Agreement, the
enforceability of indemnification and contribution provisions
may be limited by federal and state securities laws and the
policies underlying such laws;
(vii) The Registration Rights Agreement has been
duly authorized and when executed and delivered by the Trust
(assuming the due authorization, execution and delivery
thereof by the other parties thereto) will constitute the
valid and legally binding obligations of the Trust,
enforceable in accordance with its terms, except to the extent
that (A) enforcement thereof may be limited by (1) bankruptcy,
insol vency, reorganization, moratorium, fraudulent conveyance
or other similar laws now or hereafter in effect relating to
the rights of creditors generally, and (2) general principles
of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity), (B) the enforceability
of indemnification and contribution provisions may be limited
by federal and state securities laws and the policies
underlying such laws, and (C) the enforceability, under
certain circum stances, of provisions imposing a payment
obligation if the Company is unable to comply timely with its
registration obligations under the Registration Rights
Agreement may be limited by applicable law.
(viii) The Trust Securities have been duly authorized
by the Trust, and upon issuance thereof and payment therefor
as provided herein, will be validly issued, and, subject to
the terms of the Trust Agreement, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust;
none of the issued Trust Securities have been issued in
violation of or subject to any preemptive rights provided for
by the Delaware Business Trust Act, or other law or in the
Trust Agreement. There are no preemptive rights or other
rights to subscribe for or to purchase, or any restriction
upon the transfer of, the Trust Securities pursuant to the
Trust Agreement, bylaws or other governing documents or, to
such counsel's knowledge, any agreement or other instrument to
which the Trust is a party or by which it may be bound except
as described in the Offering Circular and except for
restrictions on transfer imposed
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under applicable securities laws.
(ix) The Securityholders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the
State of Delaware, except that the Securityholders may be
obligated to make payments as set forth in the Trust
Agreement;
(x) No consent, approval, authorization, or order of
any court or governmental agency or body of the State of
Delaware or, to such counsel's knowledge, any third party is
required for the performance of this Agreement or the Trust
Agreement or the Registration Rights Agreement or the
consummation by the Trust of the transactions contemplated
hereby and thereby;
(xi) The purchase of the Convertible Debentures by
the Trust does not, and the distribution of the Convertible
Debentures by the Trust will not, in each case in the
circumstances contemplated by the Trust Agreement, conflict
with or result in a breach or violation of any of the terms or
provisions of the Trust Agreement or any Delaware statute or
any order, rule or regulation of any Delaware governmental
agency or body having jurisdiction over the Trust or any of
its properties; and
In addition to the matters set forth above, such
opinion shall also include a statement to the effect that such
counsel has participated in conferences with officers and
other representatives of the Company and the Trust,
representatives of the independent public accountants of the
Company, representatives of the Initial Purchasers and their
counsel at which the contents of the Offering Circular and
related matters were discussed and, although such counsel is
not passing on and does not assume any responsibility for the
accuracy, completeness or fairness contained in the Offering
Circular, nothing has come to the attention of such counsel
which leads them to believe that the Offering Circular or any
amendment or supplement thereto, or any document incorporated
by reference therein, as of the respective dates thereof and
as of the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading (except that such
counsel need express no view as to financial statements,
schedules and other financial information included therein).
In rendering such opinion, counsel may rely as to matters of
fact, to the extent counsel deems proper, on certificates of
responsible officers of the Company and public officials;
(d) ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the
Trust and the Company in relation to the classification of the Trust
for United States federal income tax purposes, shall have furnished
their written opinion to the effect that:
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(i) under then current law and assuming full
compliance with the terms of the Trust Agreement and the
Indenture (and certain other documents), and based on certain
facts and assumptions contained in such opinion, the Trust
will be classified for United States federal income tax
purposes as a grantor trust and not as an association taxable
as a corporation; and
(ii) The statements made in the Offering Circular
under the caption "United States Federal Income Taxation" are
a fair and accurate summary of certain of the United States
federal income tax issues relating to the purchase, ownership
and the disposition of the Preferred Securities.
(e) On the date of the Offering Circular prior to the
execution of this Agreement and also at the Closing Date, KMPG Peat
Marwick LLP shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance
satisfactory to the Initial Purchasers, with respect to the
consolidated financial statements and certain financial information
incorporated by reference in or contained in the Offering Circular;
(f) The Trust Agreement, the Guarantee and the Indenture shall
have been executed and delivered, in each case in a form reasonably
satisfactory to you;
(g) (i) Subsequent to the respective dates as of which
information is given in the Offering Circular, and except as stated
therein, neither the Company nor the Trust have sustained any material
loss or interference with their business or properties from fire,
flood, hurricane, earthquake, accident or other calamity, whether or
not covered by insurance, or from any labor dispute or any court or
governmental action, order or decree, or become a party to or the
subject of any litigation which is material to the Company or the
Trust, nor shall there have been any material adverse change, or any
development involving a prospective material adverse change, in the
business, properties, key personnel, capitaliza tion, net worth,
results of operations or condition (financial or other) of the Company
or the Trust, which loss, interference, litigation or change, in the
judgment of the Initial Purchasers shall render it unadvisable to
commence or continue the offering or the delivery of the Preferred
Securities on the terms and in the manner contemplated in this
Agreement and in the Offering Circular.
(h) On or after the date hereof, none of the Company's debt
securities or the Preferred Securities are rated by any "nationally
recognized statistical rating organization," as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act;
(i) On or after the date hereof there shall not have occurred
any of the following: (i) trading in securities on the New York Stock
Exchange, the American Stock Exchange, or the over-the-counter market
shall have been suspended or materially limited or minimum or maximum
prices shall have been established on either of such Exchanges or such
market, or a banking moratorium shall have been declared by Federal or
state authorities; (ii) if at or
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prior to the Closing Date trading in securities of the Company shall
have been suspended; or (iii) if there shall have been such a material
change in general economic, political or financial conditions or if the
effect of international conditions on the financial markets in the
United States such as in the judgment of the Initial Purchasers makes
it impracticable or inadvisable to proceed with the offering or the
delivery of the Preferred Securities on the terms and in the manner
contemplated in the Offering Circular;
(j) The Trust and the Company shall have furnished or caused
to be furnished to you at the Closing Date certificates of trustees of
the Trust and officers of the Company satisfactory to you as to the
accuracy of the representations and warranties of the Trust and the
Company herein at and as of such Closing Date, as to the performance by
the Trust and the Company of all of their obligations hereunder to be
performed at or prior to such Closing Date, as to the matters set forth
in subsections (f) and (g) of this Section and as to such other matters
as you may reasonably request.
(k) Each of the directors of the Company and each of the
officers of the Company named in the Offering Circular shall have
executed and delivered to you in a lock-up agreement addressed to you
in a form satisfactory to you and substantially similar to the form of
lock-up agreement contained in Section 4(e).
All such opinions, certificates, letters and documents delivered
pursuant to this Agreement will comply with the provisions hereof only
if they are reasonably satisfactory to the Bear, ▇▇▇▇▇▇▇ & Co. Inc. and
their counsel. The Company shall furnish to the Representatives such
conformed copies of such opinions, certificates, letters and documents
in such quantities as the Representatives shall reasonably request.
The respective obligations of the Initial Purchasers to purchase and
pay for the Optional Securities shall be subject, in their reasonable
discretion, to each of the foregoing conditions to purchase the Firm Preferred
Securities, except that all references to the "Closing Date" shall be deemed to
refer to the Option Closing Date, if it shall be a date other than the Closing
Date.
7. Indemnification and Contribution.
(a) The Company and the Trust, severally and jointly, agree to
indemnify and hold harmless each Initial Purchaser, and each person, if
any, who controls any Initial Purchaser within the meaning of the
Securities Act, against any losses, claims, damages or liabilities,
joint or several, to which such Initial Purchaser or controlling person
may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based in whole or in part upon any untrue
statement or alleged untrue statement of any material fact contained in
the Preliminary Offering Circular or Offering Circular, or any
amendment or supplement thereto, or in any Blue Sky application or
other written information furnished by the Company filed in any state
or other jurisdiction in order to qualify any or all of the Preferred
Securities under the
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securities laws thereof (a "Blue Sky Application") or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Initial
Purchaser and each such controlling person for any legal or other
expenses reasonably incurred by such Initial Purchaser or such
controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company and the Trust will not be
liable in any such case to the extent that any such loss, claim,
damage, or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission
made in the Preliminary Offering Circular or Offering Circular or such
amendment or such supplement or any Blue Sky Application in reliance
upon and in conformity with written information furnished to the
Company or the Trust by any Initial Purchaser specifically for use
therein (it being understood that the only information so provided by
the Initial Purchasers is the information included in the last
paragraph on the cover page, the fifth paragraph on page three, and in
the first, second, fourth and fourteenth paragraphs under the caption
"Plan of Distribution" in any Preliminary Offering Circular and the
Offering Circular).
(b) Each Initial Purchaser, severally and not jointly, will
indemnify and hold harmless each of the Trust and the Company and each
person, if any, who controls the Company within the meaning of the
Securities Act, and each Administrative Trustee or any other person who
controls the Trust within the meaning of the Securities Act, against
any losses, claims, damages or liabilities to which the Trust or
Company or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Preliminary Offering
Circular or Offering Circular, or any amendment or supplement thereto,
or any Blue Sky Application, or arise out of or are based upon the
omission or the alleged omission to state in the Preliminary Offering
Circular or Offering Circular or any amendment or supplement thereto or
any Blue Sky Application a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to
the Trust and the Company by any Initial Purchaser specifically for use
therein (it being understood that the only information so provided is
the information included in the last paragraph on the cover page, the
fifth paragraph on page three, and in the first, second, fourth and
fourteenth paragraphs under the caption "Plan of Distribution" in the
Preliminary Offering Circular and the Offering Circular);
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, including
governmental proceedings, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 7 notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to
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any indemnified party otherwise than under this Section 7. In case any
such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that
it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; and after notice from the
indemnifying party to such indemnified party of its election to so
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation
except that the indemnified party shall have the right to employ
separate counsel if, in its reasonable judgment, it is advisable for
the indemnified party and any other Initial Purchaser to be represented
by separate counsel, and in that event the fees and expenses of
separate counsel shall be paid by the indemnifying party. An
indemnifying party shall not be liable for any settlement of any claim
or action effected without its written consent; provided, however, that
such consent was not unreasonably withheld.
Neither the Company nor the Trust will, without prior written
consent of each Representative, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action, suit
or proceeding (or related cause of action or portion thereof) in
respect of which indemnification may be sought hereunder (whether or
not such Initial Purchaser is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of such Initial Purchaser from all liability
arising out of such claim, action, suit or proceeding (or related cause
of action or portion thereof).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in the
preceding part of this Section 7 is for any reason held to be
unavailable to the Initial Purchasers, the Company, or the Trust or is
insufficient to hold harmless an indemnified party, then the Company
and the Trust shall contribute to the damages paid by the Initial
Purchasers, and the Initial Purchasers shall contribute to the damages
paid by the Company and the Trust provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. In
determining the amount of contribution to which the respective parties
are entitled, there shall be considered the relative benefits received
by each party from the offering of the Preferred Securities (taking
into account the portion of the proceeds of the offering realized by
each), the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission, and any
other equitable considerations appropriate under the circumstances. The
Company, the Trust and the Initial Purchasers agree that it would not
be equitable if the amount of such contribution were determined by pro
rata or per capita allocation (even if the Initial Purchasers were
treated as one entity for such purpose). No Initial Purchaser or person
controlling such Initial
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Purchaser shall be obligated to make contribution hereunder which in
the aggregate exceeds the amount per Preferred Security paid to such
Initial Purchaser as compensation for its commitment to purchase
Preferred Securities hereunder, less the aggregate amount of any
damages which such Initial Purchaser and its controlling persons have
otherwise been required to pay in respect of the same or any similar
claim. The Initial Purchasers' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and
not joint. For purposes of this Section, each person, if any, who
controls an Initial Purchaser within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as such
Initial Purchaser, and each director of the Company, and each person,
if any, who controls the Company within the meaning of Section 15 of
the Securities Act, shall have the same rights to contribution as the
Company, and each Administrative Trustee and each person who controls
the Trust within the meaning of Section 15 of the Securities Act, shall
have the same rights to contribution as the Trust.
8. Default of Initial Purchasers. If any Initial Purchaser defaults in
its obligation to purchase Preferred Securities hereunder and if the total
number of Preferred Securities which such defaulting Initial Purchaser agreed
but failed to purchase is ten percent or less of the total number of Preferred
Securities to be sold hereunder, the non-defaulting Initial Purchasers shall be
obligated severally to purchase (in the respective proportions which the number
of Preferred Securities set forth opposite the name of each non-defaulting
Initial Purchaser in Schedule I hereto bears to the total number of Preferred
Securities set forth opposite the names of all the non-defaulting Initial
Purchasers), the Preferred Securities which such defaulting Initial Purchaser or
Initial Purchasers agreed but failed to purchase. If any Initial Purchaser so
defaults and the total number of Preferred Securities with respect to which such
default or defaults occur is more than ten percent of the total number of
Preferred Securities to be sold hereunder, and arrangements satisfactory to the
other Initial Purchasers and the Company for the purchase of such Preferred
Securities by other persons (who may include the non-defaulting Initial
Purchasers) are not made within 36 hours after such default, this Agreement,
insofar as it relates to the sale of the Preferred Securities, will terminate
without liability on the part of the non-defaulting Initial Purchasers or the
Company except for (i) the provisions of Section 7 hereof, and (ii) the expenses
to be paid or reimbursed by the Company pursuant to Section 5. As used in this
Agreement, the term "Initial Purchaser" includes any person substituted for an
Initial Purchaser under this Section 8. Nothing herein shall relieve a
defaulting Initial Purchaser from liability for its default.
9. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Trust and the
Company, its officers and the Initial Purchasers set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of the Company, any of its officers or directors, any Initial
Purchaser or any controlling person, the Trust or any Administrative Trustee or
controlling person of the Trust and (ii) delivery of and payment for the
Preferred Securities. The respective agreements, covenants, indemnities and
other statements set forth in Section 5 and Section 7 hereof shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement.
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10. Termination.
(a) This Agreement may be terminated by the Representatives by
notice to the Company and the Trust (i) in the event that at or prior
to the First Closing Date the Company or the Trust shall have failed,
refused, or been unable to perform any agreement on the part of the
Company or the Trust to be performed hereunder or any other condition
to the obligations of the Initial Purchasers hereunder is not
fulfilled; (iii) if at or prior to the Closing Date trading in
securities on the New York Stock Exchange, the American Stock Exchange,
or the over-the-counter market shall have been suspended or materially
limited or minimum or maximum prices shall have been established on
either of such Exchanges or such market, or a banking moratorium shall
have been declared by Federal or state authorities; (iv) if at or prior
to the Closing Date trading in securities of the Company shall have
been suspended; or (v) if there shall have been such a material change
in general economic, political or financial conditions or if the effect
of international conditions on the financial markets in the United
States shall be such as, in the reasonable judgment of the Initial
Purchasers, it is inadvisable to commence or continue the offering of
the Preferred Securities at the offering price to the public set forth
on the cover page of the Offering Circular or to proceed with the
delivery of the Preferred Securities.
(b) Termination of this Agreement pursuant to this Section 10
shall be without liability of any party to any other party other than
as provided in Sections 5 and 7 hereof.
11. Notices. All communications hereunder shall be in writing and, if
sent to any of the Initial Purchasers, shall be mailed or delivered or
telegraphed and confirmed in writing to the Representatives in care of Bear,
▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇
▇▇▇▇▇▇, or if sent to the Company or the Trust shall be mailed, delivered or
telegraphed and confirmed in writing to the Company and the Trust at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇.
12. Miscellaneous. This Agreement shall inure to the benefit of and be
binding upon the several Initial Purchasers, the Company, the Trust and their
respective successors and legal representatives. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any other person any
legal or equitable right, remedy or claim under or in respect of this Agreement.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Company, the Trust and the several Initial
Purchasers and for the benefit of no other person except that (i) the
representations and warranties of the Company and the Trust contained in this
Agreement shall also be for the benefit of any person or persons who control any
Initial Purchaser within the meaning of Section 15 of the Securities Act, and
(ii) the indemnities by the Initial Purchasers shall also be for the benefit of
the directors of the Company and any person or persons who control the Company
within the meaning of Section 15 of the Securities Act and the Administrative
Trustees and any person or persons who control the Trust within the meaning of
Section 15 of the Securities Act. No purchaser of Preferred Securities from any
Initial Purchaser will
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be deemed a successor because of such purchase. The validity and interpretation
of this Agreement shall be governed by the laws of the State of Tennessee. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. You hereby represent and warrant to the Company and the Trust that
you have authority to act hereunder on behalf of the several Initial Purchasers,
and any action hereunder taken by you will be binding upon all the Initial
Purchasers.
13. No Liability of Property Trustee, Delaware Trustee or Guarantee
Trustee.
It is expressly understood and agreed by the parties hereto
that (a) each of the representations, undertakings and agreements herein made on
the part of the Trust is made and intended not as representations, warranties,
covenants, undertakings and agreements of any Trustee of the Trust, including,
without limitation, Chase Bank of Texas, National Association as Guarantee
Trustee or Property Trustee or Chase Manhattan Bank Delaware as Delaware
Trustee, in their individual capacity, but is made and intended for the purpose
of binding only the Trust, and (b) under no circumstances shall any Trustee,
including Chase Bank of Texas, National Association as Guarantee Trustee or
Property Trustee or Chase Manhattan Bank Delaware as Delaware Trustee be
personally liable for any breach or failure of any obligation, representation,
warranty, or covenant made or undertaken by the Trust under this Agreement
except, if such breach or failure is due to any gross negligence or wilful
misconduct of the Trustee.
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If the foregoing is in accordance with your understanding of our
agreement, please indicate your acceptance thereof in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement
between the Company, the Trust and each of the several Initial Purchasers.
Very truly yours,
CENTRAL PARKING CORPORATION
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Chief Executive Officer and
Chairman of the Board
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CENTRAL PARKING FINANCE TRUST
By:
-----------------------------
Administrative Trustee
CENTRAL PARKING FINANCE TRUST
By:
-----------------------------
Administrative Trustee
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Confirmed and accepted as of the date first above written.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇.▇. ▇▇▇▇▇▇▇▇ & CO., LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & COMPANY, L.L.C.
NATONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
SUNTRUST EQUITABLE SECURITIES
For themselves and as Representatives
of the several Initial Purchasers, by
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:
--------------------------------------
Title:
37
SCHEDULE I
INITIAL PURCHASERS
Number of
Initial Purchaser Preferred Securities to Be
Purchased
---------------------------------------------------------- --------------------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc. ................................. 800,000
▇.▇. ▇▇▇▇▇▇▇▇ & Co., LLC ................................. 800,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C ........................... 800,000
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC .................... 800,000
SunTrust Equitable Securities ............................ 800,000
---------
4,000,000
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