<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 17, 1998
REGISTRATION NO. 333-23869
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
POST EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
CENTRAL PARKING CORPORATION
(Exact name of registrant as specified in its charter)
---------------------
<TABLE>
<S> <C>
TENNESSEE 62-1052916
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
2401 21ST AVENUE SOUTH, SUITE 200
NASHVILLE, TENNESSEE 37212
(615) 297-4255
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
---------------------
MONROE J. CARELL, JR.
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
CENTRAL PARKING CORPORATION
2401 21ST AVENUE SOUTH, SUITE 200
NASHVILLE, TENNESSEE 37212
(615) 297-4255
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
---------------------
COPIES TO:
<TABLE>
<S> <C>
MARK MANNER J. GENTRY BARDEN
HARWELL HOWARD HYNE GABBERT & MANNER, P.C. BASS, BERRY & SIMS PLC
FIRST AMERICAN CENTER FIRST AMERICAN CENTER
NASHVILLE, TENNESSEE 37238 NASHVILLE, TENNESSEE 37238
(615) 256-0500 (615) 742-6200
</TABLE>
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] 33-
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] 33-
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
---------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated costs and expenses (all of
which will be shared by the Company and the Selling Shareholders in proportion
to the proceeds received by the Company and each Selling Shareholder) in
connection with the Offering described in the Registration Statement:
<TABLE>
<S> <C>
Commission Registration Fee................................. $ 37,584
New York Stock Exchange Listing Fee......................... 10,500
NASD Fee.................................................... 10,203
Blue Sky Fees and Expenses*................................. 5,000
Printing and Engraving Expenses*............................ 150,000
Legal Fees and Expenses*.................................... 225,000
Auditors' Fees and Expenses*................................ 200,000
Miscellaneous*.............................................. 61,713
--------
Total*............................................ $700,000
========
</TABLE>
- - ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) The Tennessee Business Corporation Act (the "TBCA") provides that a
corporation may indemnify any of its directors against liability incurred in
connection with a proceeding if (i) the director acted in good faith, (ii) in
the case of conduct in his or her official capacity with the corporation, the
director reasonably believed such conduct was in the corporation's best
interest, (iii) in all other cases, the director reasonably believed that his or
her conduct was not opposed to the best interest of the corporation, and (iv) in
connection with any criminal proceeding, the director had no reasonable cause to
believe that his or her conduct was unlawful. In actions brought by or in the
right of the corporation, however, the TBCA provides that no indemnification may
be made if the director was adjudged to be liable to the corporation. In cases
where the director is wholly successful, on the merits or otherwise, in the
defense of any proceeding instigated because of his or her status as a director
of a corporation, the TBCA mandates that the corporation indemnify the director
against reasonable expenses incurred in the proceeding. The TBCA also provides
that in connection with any proceeding charging improper benefit to a director,
no indemnification may be made if such director is adjudged liable on the basis
that personal benefit was improperly received. Notwithstanding the foregoing,
the TBCA provides that a court of competent jurisdiction, upon application, may
order that a director be indemnified for reasonable expense if, in consideration
of all relevant circumstances, the court determines that such individual is
fairly and reasonably entitled to indemnification, whether or not the standard
of conduct set forth above was met.
(b) Article Eleven of the Amended and Restated Charter of the Registrant
sets forth the extent to which officers or directors of the Registrant may be
insured or indemnified against any liabilities which they may incur. The general
effect of such provision is that any person made a party to any action, suit or
proceeding by reason of the fact that he or she is or was a director or officer
of the Registrant will be indemnified by the Registrant against expenses
(including attorney's fees), judgments, fines, and amounts paid in settlement
actually and reasonably incurred by him or her in connection with such action,
suit or proceeding, to the fullest extent permitted under the laws of the State
of Tennessee. In addition, such provision provides that, in the Registrant's
sole discretion, the Registrant may indemnify employees or agents against such
expenses, judgments, fines, and amounts paid in settlement.
(c) The Company maintains a policy of directors' and officers' insurance
that would in certain instances provide the funds necessary for the Registrant
to meet its obligations under its Amended and Restated Charter.
II-1
<PAGE> 3
(d) Reference is also made to Section 8 of the Underwriting Agreement filed
as Exhibit 1 hereto, which provides for indemnification by the Underwriters of
the Company and certain officers, directors, and controlling persons against
certain liabilities.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- - ------- -----------------------
<C> <S> <C>
*1 -- Form of Underwriting Agreement
2.1 -- Agreement and Plan of Merger, dated December 6, 1996, by and
among Central Parking Corporation, Central Parking
System -- Empire State, Inc., and Square Industries, Inc.
(incorporated by reference to Exhibit (c)(1) to the
Company's Tender Offer Statement on Schedule 14D-1 filed
December 13, 1996)
2.2 -- Agreement for Sale and Purchase of Membership Interests,
dated November 22,1996, by and among Central Parking
System Realty, Inc. Central Parking System Realty of
Missouri, Inc., Gateway Grove, Inc., and SLC Holdings,
L.L.C. (incorporated by reference to Exhibit 2.2 to the
Company's Current Report on Form 8-K filed January 14,
1997)
2.3 -- Acquisition Agreement and Plan of Merger dated November 7,
1997, by and among Kinney System Holding Corp., the
Registrant and KSHC Parallel Parking, Inc. (incorporated
by reference to Exhibit 2.1 to the Company's Current
Report on Form 8-K filed February 17, 1998)
*4.1 -- Amended and Restated Charter of the Registrant, as amended
4.2 -- Amended and Restated Bylaws of the Registrant (incorporated
by reference to Exhibit 3.2 to the Company's Registration
Statement No. 33-95640 on Form S-1)
4.3 -- Form of Common Stock Certificate (incorporated by reference
to Exhibit 4.1 to the Company's Registration Statement No.
33-95640 on Form S-1)
4.4 -- Purchase Agreement dated March 13, 1998 between the Registrant
and Bear, Stearns & Co. Inc., J.C. Bradford & Co., LLC, William
Blair & Company, L.L.C., NationsBanc Montgomery Securities LLC,
and SunTrust Equitable Securities as the representatives of the
several Initial Purchasers.
4.5 -- Form of Indenture dated March __, 1998 between the Registrant
and Chase Bank of Texas, National Association, as Trustee
regarding up to $113,402,050 of 5 1/4% Convertible Subordinated
Debenture due 2028.
4.6 -- Form of Amended and Restated Declaration of Trust of Central
Parking Finance Trust dated as of March __, 1998.
4.7 -- Form of Preferred Securities Guarantee Agreement dated as of
March __, 1998 by and between the Registrant and Chase Bank of
Texas, National Association as Trustee.
4.8 -- Form of Registration Rights Agreement dated as of March ___,
1998 by and between Central Parking Finance Trust and the
Registrant and Bear, Stearns & Co. Inc., J. C. Bradford & Co.,
LLC, William Blair & Company, L.L.C., NationsBanc Montgomery
Securities LLC, and SunTrust Equitable Securities as the
representatives of the several Initial Purchasers.
4.9 -- Form of Common Securities Guarantee Agreement dated as of
March __, 1998 by the Registrant.
4.10 -- Form of Common Securities Subscription Agreement dated as of
March __, 1998 between Central Parking Finance Trust and the
Registrant relating to the Trust's 5 1/4% Common Securities.
*5 -- Opinion of Harwell Howard Hyne Gabbert & Manner, P.C.
*23.1 -- Consents of KPMG Peat Marwick LLP
*23.2 -- Consent of David Berdon & Co. LLP
*23.3 -- Consent of Harwell Howard Hyne Gabbert & Manner, P.C.
(included in Exhibit 5)
*24 -- Power of Attorney (included on page II-4)
*99 -- Consent of Lewis Katz
</TABLE>
- - ---------------
* Previously filed
(b) Financial Statement Schedules
The schedules for which provision is made in the applicable accounting
regulations of the Commission are not required under the related instructions or
are inapplicable and, therefore, have been omitted.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
1. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, that the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer, or
controlling person of the Registrant in the successful defense of any
action, suit, or proceeding) is asserted against the Registrant by such
director, officer, or
II-2
<PAGE> 4
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
2. For purposes of determining any liability under the Securities Act,
that each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
3. For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
4. For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this amendment to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Nashville, State of Tennessee, on March 17,
1998.
CENTRAL PARKING CORPORATION
By: /s/ MONROE J. CARELL, JR.
------------------------------------
Monroe J. Carell, Jr.,
Chairman
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed on behalf of the following persons (other than Lowell
Harwood) in the capacities and on the dates indicated by Stephen A. Tisdell
pursuant to a Power of Attorney granted in the initial Registration Statement.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ MONROE J. CARELL, JR. Chief Executive Officer March 16, 1998
- - ------------------------------------------------ (Principal Executive
Monroe J. Carell, Jr. Officer), Chairman of
the Board
/s/ JAMES H. BOND President and Chief March 16, 1998
- - ------------------------------------------------ Operating Officer,
James H. Bond Director
/s/ STEPHEN A. TISDELL Chief Financial Officer March 16, 1998
- - ------------------------------------------------ (Principal Financial
Stephen A. Tisdell and Accounting
Officer)
/s/ JOHN W. EAKIN Director March 16, 1998
- - ------------------------------------------------
John W. Eakin
/s/ EDWARD G. NELSON Director March 16, 1998
- - ------------------------------------------------
Edward G. Nelson
/s/ WILLIAM C. O'NEIL, JR. Director March 16, 1998
- - ------------------------------------------------
William C. O'Neil, Jr.
/s/ P.E. SADLER Director March 16, 1998
- - ------------------------------------------------
P.E. Sadler
/s/ CECIL CONLEE Director March 16, 1998
- - ------------------------------------------------
Cecil Conlee
Director
- - ------------------------------------------------
Lowell Harwood*
</TABLE>
- - ---------------
* Mr. Harwood did not sign the original Registration Statement or its Power of
Attorney
II-4
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- - ------- -----------------------
<C> <C> <S>
*1 -- Form of Underwriting Agreement
2.1 -- Agreement and Plan of Merger, dated December 6, 1996, by and
among Central Parking Corporation, Central Parking
System -- Empire State, Inc., and Square Industries, Inc.
(incorporated by reference to Exhibit(c)(1) to the Company's
Tender Offer Statement on Schedule 14D-1 filed December 13,
1996)
2.2 -- Agreement for Sale and Purchase of Membership Interests,
dated November 22, 1996, by and among Central Parking System
Realty, Inc. Central Parking System Realty of Missouri,
Inc., Gateway Grove, Inc., and SLC Holdings, L.L.C.
(incorporated by reference to Exhibit 2.2 to the Company's
Current Report on Form 8-K filed January 14, 1997)
2.3 -- Acquisition Agreement and Plan of Merger dated November 7,
1997, by and among Kinney System Holding Corp., the
Registrant and KSHC Parallel Parking, Inc. (incorporated by
reference to Exhibit 2.1 to the Company's Current Report on
Form 8-K filed February 17, 1998)
*4.1 -- Amended and Restated Charter of the Registrant, as amended
4.2 -- Amended and Restated Bylaws of the Registrant (incorporated
by reference to Exhibit 3.2 of the Company's Registration
Statement No. 33-95640 on Form S-1)
4.3 -- Form of Common Stock Certificate (incorporated by reference
to Exhibit 4.1 to the Company's Registration Statement No.
33-95640 on Form S-1)
4.4 -- Purchase Agreement dated March 13, 1998 between the Registrant and
Bear, Stearns & Co. Inc., J.C. Bradford & Co., LLC, William Blair
& Company, L.L.C., NationsBanc Montgomery Securities LLC, and
SunTrust Equitable Securities as the representatives of the
several Initial Purchasers.
4.5 -- Form of Indenture dated March __, 1998 between the Registrant
and Chase Bank of Texas, National Association, as Trustee
regarding up to $113,402,050 of 5 1/4% Convertible Subordinated
Debenture due 2028.
4.6 -- Form of Amended and Restated Declaration of Trust of Central
Parking Finance Trust dated as of March __, 1998.
4.7 -- Form of Preferred Securities Guarantee Agreement dated as of
March __, 1998 by and between the Registrant and Chase Bank of
Texas, National Association as Trustee.
4.8 -- Form of Registration Rights Agreement dated as of March ___,
1998 by and between Central Parking Finance Trust and the
Registrant and Bear, Stearns & Co. Inc., J. C. Bradford & Co.,
LLC, William Blair & Company, L.L.C., NationsBanc Montgomery
Securities LLC, and SunTrust Equitable Securities as the
representatives of the several Initial Purchasers.
4.9 -- Form of Common Securities Guarantee Agreement dated as of
March __, 1998 by the Registrant.
4.10 -- Form of Common Securities Subscription Agreement dated as of
March __, 1998 between Central Parking Finance Trust and the
Registrant relating to the Trust's 5 1/4% Common Securities.
*5 -- Opinion of Harwell Howard Hyne Gabbert & Manner, P.C.
*23.1 -- Consents of KPMG Peat Marwick LLP
*23.2 -- Consent of David Berdon & Co. LLP
*23.3 -- Consent of Harwell Howard Hyne Gabbert & Manner, P.C.
(included in Exhibit 5)
*24 -- Power of Attorney
*99 -- Consent of Lewis Katz
</TABLE>
- - ---------------
* Previously filed.
<PAGE> 1
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
--------------------------
PURCHASE AGREEMENT
March 13, 1998
Bear, Stearns & Co. Inc.
J.C. Bradford & Co., LLC
William Blair & Company, L.L.C.
NationsBanc Montgomery Securities LLC
SunTrust Equitable Securities
As Representatives of the several Initial Purchasers
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
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
<PAGE> 2
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
2
<PAGE> 3
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 Kinney System Holding Corp.
("Kinney")) 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
3
<PAGE> 4
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
4
<PAGE> 5
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
5
<PAGE> 6
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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<PAGE> 7
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
7
<PAGE> 8
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.
8
<PAGE> 9
(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
9
<PAGE> 10
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
10
<PAGE> 11
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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<PAGE> 12
(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 Kinney, 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, Stearns & 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.
12
<PAGE> 13
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, Stearns & 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,
Stearns & 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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<PAGE> 14
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, Stearns & 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, Stearns & 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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<PAGE> 15
(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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<PAGE> 16
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, Stearns & Co.
Inc. and J.C. Bradford & 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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<PAGE> 17
(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
17
<PAGE> 18
(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, Meagher & Flom 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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<PAGE> 19
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, Berry & Sims 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) Andrew M. Paalborg, Vice President, General Counsel and
Secretary of the Company, and Harwell Howard Hyne Gabbert & Manner
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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<PAGE> 20
(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 Kinney.
(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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<PAGE> 21
(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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<PAGE> 22
(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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<PAGE> 23
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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<PAGE> 24
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) Harwell Howard Hyne Gabbert & Manner 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
24
<PAGE> 25
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
25
<PAGE> 26
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) Skadden, Arps, Slate, Meagher & Flom 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:
26
<PAGE> 27
(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
27
<PAGE> 28
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, Stearns & 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
28
<PAGE> 29
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
29
<PAGE> 30
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
30
<PAGE> 31
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.
31
<PAGE> 32
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,
Stearns & Co. Inc., 945 Park Avenue, New York, New York 10167, Attention: Tom
Harney, 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 2401 21st
Avenue South, Suite 200, Nashville, Tennessee 37212, Attention: Monroe J.
Carell, Jr.
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
32
<PAGE> 33
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.
33
<PAGE> 34
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: Monroe J. Carell, Jr.
Title: Chief Executive Officer and
Chairman of the Board
<PAGE> 35
CENTRAL PARKING FINANCE TRUST
By:
-----------------------------
Administrative Trustee
CENTRAL PARKING FINANCE TRUST
By:
-----------------------------
Administrative Trustee
<PAGE> 36
Confirmed and accepted as of the date first above written.
BEAR, STEARNS & CO. INC.
J.C. BRADFORD & CO., LLC
WILLIAM BLAIR & COMPANY, L.L.C.
NATONSBANC MONTGOMERY SECURITIES LLC
SUNTRUST EQUITABLE SECURITIES
For themselves and as Representatives
of the several Initial Purchasers, by
BEAR, STEARNS & CO. INC.
By:
--------------------------------------
Title:
<PAGE> 37
SCHEDULE I
INITIAL PURCHASERS
<TABLE>
<CAPTION>
Number of
Initial Purchaser Preferred Securities to Be
Purchased
- - ---------------------------------------------------------- --------------------------
<S> <C>
Bear, Stearns & Co. Inc. ................................. 800,000
J.C. Bradford & Co., LLC ................................. 800,000
William Blair & Company, L.L.C ........................... 800,000
NationsBanc Montgomery Securities LLC .................... 800,000
SunTrust Equitable Securities ............................ 800,000
---------
4,000,000
=========
</TABLE>
37
<PAGE> 1
Central Parking Corporation, as Issuer
and
Chase Bank of Texas, National Association, as Trustee
----------------
Indenture
Dated as of March 18, 1998
$103,092,775*
5 1/4% Convertible Subordinated Debentures Due 2028
----------------
- - --------
* Subject to increase to up to $113,402,050 in the event an over-allotment
option is exercised.
<PAGE> 2
Central Parking Corporation
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- - --------------- ---------
<S> <C> <C> <C>
ss.310 (a)(1) ................................. 609
(a)(2) ................................. 609
(a)(3) ................................. Not Applicable
(a)(4) ................................. Not Applicable
(b) ................................. 608, 610
ss. 311 (a) ................................. 613
(b) ................................. 613
ss. 312 (a) ................................. 701
ss. 312 (a) ................................. 702(a)
(b) ................................. 702(b)
(c) ................................. 702(c)
ss. 313 (a) ................................. 703(a)
(b) ................................. 703(a)
(c) ................................. 703(a)
(d) ................................. 703(b)
ss. 314 (a) ................................. 704, 102
(b) ................................. Not Applicable
(c)(1) ................................. 102
(c)(2) ................................. 102
(c)(3) ................................. Not Applicable
(d) ................................. Not Applicable
(e) ................................. 102
ss. 315 (a) ................................. 601
(b) ................................. 602
(c) ................................. 601
(d) ................................. 601
(e) ................................. 514
(a)(1)(A) ................................. 502, 512
(a)(1)(B) ................................. 513
(a)(2) ................................. Not Applicable
(b) ................................. 508
(c) ................................. 104(c)
</TABLE>
- ii -
<PAGE> 3
<TABLE>
<S> <C> <C> <C>
ss. 317 (a)(1) ................................. 503
(a)(2) ................................. 504
(b) ................................. 1003
ss. 318 (a) ................................. 107
</TABLE>
- - --------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
- iii -
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Recitals of the Company..........................................................-1-
ARTICLE I Definitions and Other Provisions of General Application........-3-
SECTION 101. Definitions....................................................-3-
SECTION 102. Compliance Certificates and Opinions..........................-14-
SECTION 103. Form of Documents Delivered to Trustee........................-15-
SECTION 104. Acts of Holders; Record Dates.................................-16-
SECTION 105. Notices, Etc., to Trustee and the Company.....................-17-
SECTION 106. Notice to Holders; Waiver.....................................-18-
SECTION 107. Conflict with Trust Indenture Act.............................-18-
SECTION 108. Effect of Headings and Table of Contents......................-19-
SECTION 109. Successors and Assigns........................................-19-
SECTION 110. Separability Clause...........................................-19-
SECTION 111. Benefits of Indenture.........................................-19-
SECTION 112. Governing Law.................................................-19-
SECTION 113. Legal Holidays................................................-19-
ARTICLE II Convertible Debenture Forms...................................-21-
SECTION 201. Forms Generally...............................................-21-
SECTION 202. Initial Issuance to Property Trustee..........................-21-
ARTICLE III The Convertible Debentures....................................-23-
SECTION 301. Title and Terms...............................................-23-
SECTION 302. Denominations.................................................-24-
SECTION 303. Execution, Authentication, Delivery and Dating................-25-
SECTION 304. Temporary Convertible Debentures..............................-25-
SECTION 305. Registration, Registration of Transfer and Exchange...........-26-
SECTION 306. Mutilated, Destroyed, Lost and Stolen Convertible Debentures..-27-
SECTION 307. Payment of Interest; Interest Rights Preserved................-28-
SECTION 308. Persons Deemed Owners.........................................-30-
SECTION 309. Cancellation..................................................-31-
SECTION 310. Right of Set Off..............................................-31-
SECTION 311. CUSIP Numbers.................................................-31-
SECTION 312. Option to Extend Interest Payment Period......................-31-
</TABLE>
- iv -
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 313. Paying Agent, Security Registrar and Conversion Agent.........-33-
SECTION 314. Global Security...............................................-33-
ARTICLE IV Satisfaction and Discharge....................................-37-
SECTION 401. Satisfaction and Discharge of Indenture.......................-37-
SECTION 402. Application of Trust Money....................................-38-
ARTICLE V Remedies......................................................-39-
SECTION 501. Events of Default.............................................-39-
SECTION 502. Acceleration of Maturity; Rescission and Annulment............-40-
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee....................................................-41-
SECTION 504. Trustee May File Proofs of Claim..............................-42-
SECTION 505. Trustee May Enforce Claims Without Possession of
Convertible Debentures........................................-43-
SECTION 506. Application of Money Collected................................-43-
SECTION 507. Limitation on Suits...........................................-44-
SECTION 508. Unconditional Right of Holders to Receive
Principal and Interest and Convert............................-44-
SECTION 509. Restoration of Rights and Remedies............................-45-
SECTION 510. Rights and Remedies Cumulative................................-45-
SECTION 511. Delay or Omission Not Waiver..................................-45-
SECTION 512. Control by Holders............................................-46-
SECTION 513. Waiver of Past Defaults.......................................-46-
SECTION 514. Undertaking for Costs.........................................-47-
SECTION 515. Waiver of Stay or Extension Laws..............................-47-
SECTION 516. Enforcement by Holders of Preferred Securities................-47-
ARTICLE VI The Trustee...................................................-49-
SECTION 601. Certain Duties and Responsibilities...........................-49-
SECTION 602. Notice of Defaults............................................-49-
SECTION 603. Certain Rights of Trustee.....................................-49-
SECTION 604. Not Responsible for Recitals or Issuance
of Convertible Debentures.....................................-51-
SECTION 605. May Hold Convertible Debentures...............................-51-
SECTION 606. Money Held in Trust...........................................-51-
SECTION 607. Compensation and Reimbursement................................-51-
SECTION 608. Disqualification; Conflicting Interests.......................-52-
</TABLE>
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SECTION 609. Corporate Trustee Required; Eligibility.......................-52-
SECTION 610. Resignation and Removal; Appointment of Successor.............-53-
SECTION 611. Acceptance of Appointment by Successor........................-54-
SECTION 612. Merger, Conversion, Consolidation or Succession to Business...-55-
SECTION 613. Preferential Collection of Claims Against Company.............-55-
ARTICLE VII Holders' Lists and Reports by Trustee and Company.............-56-
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.....-56-
SECTION 702. Preservation of Information; Communications to Holders........-56-
SECTION 703. Reports by Trustee............................................-57-
SECTION 704. Reports by Company............................................-57-
ARTICLE VIII Consolidation, Merger, Conveyance, Transfer or Lease..........-58-
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms..........-58-
SECTION 802. Successor Substituted.........................................-59-
ARTICLE IX Supplemental Indentures.......................................-60-
SECTION 901. Supplemental Indentures Without Consent of Holders............-60-
SECTION 902. Supplemental Indentures with Consent of Holders...............-61-
SECTION 903. Execution of Supplemental Indentures..........................-62-
SECTION 904. Effect of Supplemental Indentures.............................-62-
SECTION 905. Conformity with Trust Indenture Act...........................-63-
SECTION 906. Reference in Convertible Debentures to Supplemental
Indentures....................................................-63-
ARTICLE X Covenants; Representations and Warranties.....................-64-
SECTION 1001. Payment of Principal and Interest.............................-64-
SECTION 1002. Maintenance of Office or Agency...............................-64-
SECTION 1003. Money for Convertible Debenture Payments to Be Held in Trust..-64-
SECTION 1004. Statement by Officers as to Default...........................-66-
SECTION 1005. Limitation on Dividends; Covenants as to the Trust............-66-
SECTION 1006. Payment of Expenses of the Trust..............................-67-
SECTION 1007. Registration Rights...........................................-68-
ARTICLE XI Redemption of Convertible Debentures..........................-69-
SECTION 1101. Optional Redemption...........................................-69-
SECTION 1102. Tax Event Optional Redemption.................................-69-
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SECTION 1103. Applicability of Article......................................-70-
SECTION 1104. Election to Redeem; Notice to Trustee.........................-70-
SECTION 1105. Selection by Trustee of Convertible Debentures to Be Redeemed.-71-
SECTION 1106. Notice of Redemption..........................................-71-
SECTION 1107. Deposit and Payment of Redemption Price.......................-72-
SECTION 1108. Convertible Debentures Payable on Redemption Date.............-73-
SECTION 1109. Convertible Debentures Redeemed in Part.......................-73-
SECTION 1110. No Sinking Fund...............................................-74-
SECTION 1111. Mandatory Redemption..........................................-74-
SECTION 1112. Exchange of Trust Securities For Convertible Debentures.......-74-
ARTICLE XII Subordination of Convertible Debentures.......................-75-
SECTION 1201. Agreement to Subordinate......................................-75-
SECTION 1202. Default on Senior Indebtedness................................-75-
SECTION 1203. Liquidation; Dissolution; Bankruptcy..........................-76-
SECTION 1204. Subrogation...................................................-77-
SECTION 1205. Trustee to Effectuate Subordination...........................-79-
SECTION 1206. Notice by the Company.........................................-79-
SECTION 1207. Rights of the Trustee; Holders of Senior Indebtedness.........-80-
SECTION 1208. Subordination May Not Be Impaired.............................-80-
ARTICLE XIII Conversion of Convertible Debentures..........................-82-
SECTION 1301. Conversion Rights.............................................-82-
SECTION 1302. Conversion Procedures.........................................-82-
SECTION 1303. Conversion Price Adjustments..................................-85-
SECTION 1304. Fundamental Change............................................-90-
SECTION 1305. Notice of Adjustments of Conversion Price.....................-93-
SECTION 1306. Prior Notice of Certain Events................................-93-
SECTION 1307. Certain Defined Terms.........................................-94-
SECTION 1308. Dividend or Interest Reinvestment Plans.......................-95-
SECTION 1309. Certain Additional Rights.....................................-95-
SECTION 1310. Restrictions on Company Common Stock Issuable Upon
Conversion....................................................-96-
SECTION 1311. Trustee Not Responsible for Determining Conversion Price or
Adjustments...................................................-97-
ARTICLE XIV Immunity of Incorporators, Stockholders,
Officers and Directors........................................-98-
SECTION 1401. No Recourse...................................................-98-
</TABLE>
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<PAGE> 8
EXHIBIT AND ANNEX
EXHIBIT A Form of Convertible Debenture
ANNEX A Amended and Restated Declaration of Trust among the Company, as
trust sponsor, Chase Bank of Texas, National Association, as
Property Trustee, Chase Manhattan Bank Delaware, as Delaware trustee
and Monroe J. Carell, Jr., James H. Bond and Andrew M. Paalborg as
Administrative Trustees, dated as of March 18, 1998.
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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<PAGE> 9
INDENTURE, dated as of March 18, 1998, between Central Parking
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
2401 21st Avenue South, Suite 200, Nashville, Tennessee, and Chase Bank of
Texas, National Association, a Texas banking corporation, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, Central Parking Finance Trust, a Delaware business trust
(the "Trust"), formed under the Amended and Restated Declaration of Trust among
the Company, as trust sponsor, Chase Bank of Texas, National Association, as
property trustee (the "Property Trustee"), Chase Manhattan Bank Delaware, as
Delaware trustee (the "Delaware Trustee") and Monroe J. Carell, Jr., James H.
Bond and Andrew M. Paalborg, as administrative trustees (the "Administrative
Trustees"), dated as of March 18, 1998 (the "Trust Agreement"), pursuant to the
Purchase Agreement (the "Purchase Agreement") dated March 13, 1998, among the
Company and the initial purchasers named therein, will issue and sell up to
4,000,000 (or 4,400,000 if the over-allotment option is exercised) of its 5 1/4%
Convertible Trust Issued Preferred Securities (the "Preferred Securities") with
a liquidation amount of $25 per Preferred Security, having an aggregate
liquidation amount with respect to the assets of the Trust of $100,000,000 (or
$110,000,000 if the over-allotment option is exercised);
WHEREAS, the trustees of the Trust, on behalf of the Trust, will
execute and deliver to the Company 5 1/4% Convertible Common Securities (the
"Common Securities") of the Trust, registered in the name of the Company, in an
aggregate amount equal to three percent of the capitalization of the Trust,
equivalent to 123,711 Common Securities (or 136,082 Common Securities if the
over-allotment option is exercised), with a liquidation amount of $25 per Common
Security, having an aggregate liquidation amount with respect to the assets of
the Trust of $3,092,775 (or $3,402,050 if the over-allotment option is
exercised) (the "Common Securities");
WHEREAS, the Trust will use the proceeds from the sale of the
Preferred Securities and the Common Securities to purchase from the Company 5
1/4% Convertible Subordinated Debentures Due 2028 (the "Convertible Debentures")
of the Company in an aggregate principal amount of $103,092,775 (or $113,402,050
if the over-allotment option is exercised);
WHEREAS, the Company is guaranteeing the payment of distributions
on the Preferred Securities, and payment of the Redemption Price and payments on
liquidation with respect to the Preferred Securities, to the extent provided in
the Preferred Securities Guarantee Agreement (the "Guarantee") dated March 18,
1998 between the Company and Chase Bank of Texas, National Association, as
guarantee trustee, for the benefit of the holders of the Preferred Securities
from time to time;
WHEREAS, the Company has duly authorized the creation of the
Convertible
<PAGE> 10
Debentures of the tenor and amount herein set forth and to provide therefor the
Company has duly authorized the execution and delivery of this Indenture;
WHEREAS, so long as the Trust is a Holder of Convertible
Debentures, and any Preferred Securities are outstanding, the Trust Agreement
provides that the holders of Preferred Securities may cause the Conversion Agent
to (a) exchange such Preferred Securities for Convertible Debentures held by the
Trust and (b) immediately convert such Convertible Debentures into Common Stock
of the Company; and
WHEREAS, all things necessary to make the Convertible Debentures,
when executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, and to make this
Indenture a valid agreement of the Company, in accordance with their and its
terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Convertible Debentures by the Holders thereof, it is mutually agreed, for the
equal and proportionate benefit of all Holders of the Convertible Debentures, as
follows:
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<PAGE> 11
ARTICLE II
Definitions and Other Provisions
of General Application
SECTION 201. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally accepted
accounting principles; and
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Interest" has the meaning specified in Section 301.
"Additional Payments" means Compounded Interest, Liquidated
Damages, if any, and Additional Interest, if any.
"Administrative Trustees" has the meaning specified in the
Recitals of this instrument.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Agent" means any Registrar, Paying Agent, Conversion Agent or co-
registrar.
"Applicable Price" means (i) in the case of a Non-Stock
Fundamental Change in which the holders of the Company Common Stock receive only
cash, the amount of cash received by the holder of one share of Company Common
Stock and (ii) in the event of any
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<PAGE> 12
other Non-Stock Fundamental Change or any Common Stock Fundamental Change, the
average of the Closing Prices for the Company Common Stock during the ten
trading days prior to the record date for the determination of the holders of
Company Common Stock entitled to receive such securities, cash, or other
property in connection with such Non-Stock Fundamental Change or Common Stock
Fundamental Change or, if there is no such record date, the date upon which the
holders of the Company Common Stock shall have the right to receive such
securities, cash, or other property (such record date or distribution date being
hereinafter referred to as the "Entitlement Date"), in each case as adjusted in
good faith by the Company to appropriately reflect any of the events referred to
in Section 1303.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day on which banking institutions in The
City of New York, in Wilmington, Delaware or in Dallas, Texas are authorized or
required by law to close.
"Closing Price" has the meaning specified in Section 1307.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities" has the meaning specified in the recitals to
this Instrument.
"Common Securities Guarantee" means any guarantee that the Company
may enter into that operate directly or indirectly for the benefit of holders of
Common Securities of the Trust.
"Common Stock Fundamental Change" means any Fundamental Change in
which more than 50% of the value (as determined in good faith by the Board of
Directors of the Company) of the consideration received by holders of Company
Common Stock consists of common stock that for each of the ten consecutive
trading days prior to the Entitlement Date has been admitted for listing or
admitted for listing subject to notice of issuance on a national securities
exchange or quoted on the Nasdaq National Market; provided, however, that a
Fundamental Change shall not be a Common Stock Fundamental Change unless either
(i) the Company continues to exist after the occurrence of such Fundamental
Change and the
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<PAGE> 13
outstanding Preferred Securities continue to exist as outstanding Preferred
Securities or (ii) not later than the occurrence of such Fundamental Change, the
outstanding Preferred Securities are converted into or exchanged for shares of
convertible preferred stock of an entity succeeding to the business of the
Company or a subsidiary thereof, which convertible preferred stock has powers,
preferences, and relative, participating, optional, or other rights, and
qualifications, limitations, and restrictions, substantially similar to those of
the Preferred Securities.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Common Stock" includes any stock of any class of the
Company which has no preference in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution or winding up
of the Company and which is not subject to redemption by the Company. However,
subject to the provisions of Article Thirteen, shares issuable on conversion of
Convertible Debentures shall include only shares of the class designated as
Company Common Stock of the Company at the date of this instrument or shares of
any class or classes resulting from any reclassification or reclassifications
thereof and which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which are not subject to redemption by the
Company; provided, that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable on conversion
shall be substantially in the proportion which the total number of shares of
such class resulting from all such reclassifications bears to the total number
of shares of all such classes resulting from all such reclassifications.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Compounded Interest" has the meaning specified in Section 312.
"Conversion Agent" means the Person appointed to act on behalf of
the holders of Preferred Securities in effecting the conversion of Preferred
Securities as and in the manner set forth in the Trust Agreement and Section
1302 hereof.
"Conversion Date" has the meaning specified in Section 1302.
"Conversion Price" has the meaning specified in Section 1301.
"Convertible Debentures" has the meaning specified in the Recitals
to this instrument.
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<PAGE> 14
"Corporate Trust Office" means the principal office of the
Trustee in Dallas, Texas, at which at any particular time its corporate trust
business shall be administered and which at the date of this Indenture is 2200
Ross Avenue, Suite 500, Dallas, Texas, 75201, Attention: Corporate Trust and
Agency Department.
"Defaulted Interest" has the meaning specified in Section 307.
"Delaware Trustee" has the meaning given it in the Recitals of
this instrument.
"Depositary" means, with respect to any Convertible Debentures
issued in the form of one or more Global Security, a clearing agency registered
under the Exchange Act that is dedicated to act as Depositary for the
Convertible Debentures, and will initially be the Depository Trust Company.
"Direct Action" means a proceeding directly instituted by a holder
of Preferred Securities for enforcement of payment to such holder of the
principal of or interest on the Convertible Debentures having a principal amount
equal to the aggregate liquidation amount of the Preferred Securities of such
holder on or after the respective due date specified in the Convertible
Debentures, if an Event of Default under the Trust Agreement has occurred and is
continuing and such event is attributable to the failure of the Company to pay
interest or principal on the Convertible Debentures on the date such interest or
principal is otherwise payable (or in the case of redemption, on the redemption
date.)
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance
with the Trust Agreement and the Convertible Debentures held by the Property
Trustee are to be distributed to the holders of Trust Securities issued by the
Trust pro rata in accordance with the Trust Agreement.
"Dissolution Tax Opinion" has the meaning specified in the Trust
Agreement.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations promulgated thereunder,
or any successor legislation.
"Extension Period" has the meaning specified in Section 312.
"Fundamental Change" means the occurrence of any Transaction or
event in connection with a plan pursuant to which all or substantially all of
the Company Common Stock shall be exchanged for, converted into, acquired for,
or constitute solely the right to receive securities, cash, or other property
(whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization, or
otherwise), provided, that, in the case of a plan involving more than one
-6-
<PAGE> 15
such Transaction or event, for purposes of adjustment of the conversion price,
such Fundamental Change shall be deemed to have occurred when substantially all
of the Company Common Stock shall be exchanged for, converted into, or acquired
for or constitute solely the right to receive securities, cash, or other
property, but the adjustment shall be based upon the consideration that a holder
of Company Common Stock received in such Transaction or event as a result of
which more than 50% of the Company Common Stock shall have been exchanged for,
converted into, or acquired for or constitute solely the right to receive
securities, cash, or other property. The term "Non-Stock Fundamental Change"
means any Fundamental Change other than a Common Stock Fundamental Change.
"Global Security" has the meaning specified in Section 314.
"Guarantee" has the meaning specified in the Recitals to this
instrument.
"Holder" means a Person in whose name a Convertible Debenture is
registered in the Security Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supple mental indenture,
respectively.
"Initial Purchasers" means Bear, Stearns & Co., Inca., J.C.
Bradford & Co., William Blair and Company, L.L.C., NationsBanc Montgomery
Securities LLC and SunTrust Equitable Securities, as initial purchasers under
the Purchase Agreement.
"Interest Payment Date" has the meaning specified in Section 301.
"Investment Company Event" has the meaning specified in Annex I
to the Trust Agreement.
"Liquidated Damages" has the meaning specified in the form of
reverse of debenture set forth in Exhibit A to this agreement.
"Maturity", when used with respect to any Convertible Debenture,
means the date on which the principal of such Convertible Debenture becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Ministerial Action" has the meaning specified in Section 1102.
"90-Day Period" has the meaning specified in Section 1102.
-7-
<PAGE> 16
"No Recognition Opinion" has the meaning specified in Annex I to
the Trust Agreement.
"Non Book-Entry Preferred Securities" has the meaning specified in
section 314.
"Non-Stock Fundamental Change" means any Fundamental Change other
than a Common Stock Fundamental Change.
"Notice of Conversion" means the notice to be given by a holder of
Preferred Securities to the Conversion Agent directing the Conversion Agent to
exchange such Preferred Securities for Convertible Debentures and to convert
such Convertible Debentures into Company Common Stock on behalf of such holder.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the Vice Chairman of the Board, the Chief Executive Officer, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 1004 shall be the principal executive, financial or accounting officer
of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Convertible Debentures,
means, as of the date of determination, all Convertible Debentures theretofore
authenticated and delivered under this Indenture, except: (i) Convertible
Debentures theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation; (ii) Convertible Debentures for whose payment or redemption money
in the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Convertible Debentures; provided, that if such Convertible
Debentures are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made; and (iii) Convertible Debentures that have been paid pursuant to
Section 307, converted into Company Common Stock pursuant to Section 1301, or in
exchange for or in lieu of which other Convertible Debentures have been
authenticated and delivered pursuant to this Indenture, other than any such
Convertible Debentures in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Convertible Debentures are held
by a bona fide purchaser in whose hands such Convertible Debentures are valid
obligations of the Company, provided, however, that in determining whether the
Holders of the requisite principal amount of the Outstanding Convertible
Debentures have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Convertible Debentures owned by the Company or any
other obligor upon the Convertible Debentures
-8-
<PAGE> 17
or any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Convertible Debentures
which the Trustee knows to be so owned shall be so disregarded. Convertible
Debentures so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Convertible Debentures and that
the pledgee is not the Company or any other obligor upon the Convertible
Debentures or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or interest on any Convertible Debentures on behalf of the
Company.
"Person" means any legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Predecessor Security" of any particular Convertible Debenture
means every previous Convertible Debenture evidencing all or a portion of the
same debt as that evidenced by such particular Convertible Debenture; and, for
the purposes of this definition, any Convertible Debenture authenticated and
delivered under Section 306 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Convertible Debenture shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Convertible Debenture.
"Preferred Securities" has the meaning specified in the Recitals
to this instrument.
"Property Trustee" has the meaning specified in the Recitals of
this instrument.
"Purchase Agreement" has the meaning specified in the Recitals to
this instrument.
"Purchased Shares" has the meaning specified in Section 1303(e).
"Purchaser Stock Price" means, with respect to any Common Stock
Fundamental Change, the average of the Closing Prices for the common stock
received in such Common Stock Fundamental Change for the ten consecutive trading
days prior to and including the Entitlement Date, as adjusted in good faith by
the Company to appropriately reflect any of the events referred to in Section
1303.
"Redemption Date", when used with respect to any Convertible
Debenture to be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Convertible
Debenture to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
-9-
<PAGE> 18
"Redemption Tax Opinion" has the meaning set forth in Annex I to
the Trust Agreement.
"Reference Date" has the meaning specified in Section 1303(c).
"Reference Market Price" shall initially mean $29.37 (which is an
amount equal to 662/3% of the reported last sales price for Company Common Stock
on the NYSE Consolidated Transactions Tape on March 12, 1998) and in the event
of any adjustment of the conversion price other than as a result of a Non-Stock
Fundamental Change, the Reference Market Price shall also be adjusted so that
the ratio of the Reference Market Price to the conversion price after giving
effect to any such adjustment shall always be the same as the ratio of the
initial Reference Market Price to the initial conversion price of the Preferred
Securities.
"Regular Record Date" has the meaning specified in Section 301.
"Responsible Officer", when used with respect to the Trustee,
means any vice-president, any assistant vice-president, the treasurer, any
assistant treasurer, any trust officer or assistant trust officer or any other
officer in the Corporate Trust Department of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Restricted Preferred Securities" means all Preferred Securities
required to bear any restricted securities legend pursuant to the Trust
Agreement. "Restricted Securities" means all the Convertible Debentures required
pursuant to Section 202 to bear the Restricted Securities Legend.
"Restricted Securities Legend" has the meaning specified in
Section 202.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means in respect of the Company (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of such
obligor for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by such obligor, (ii) all
capital lease obligations of such obligor, (iii) all obligations of such obligor
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of such obligor and all obligations of such obligor under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of
-10-
<PAGE> 19
business), (iv) all obligations of such obligor for the reimbursement of any
letter of credit, banker's acceptance, security purchase facility or similar
credit transaction, (v) all obligations of the type referred to in clauses (i)
through (iv) above of other Persons for the payment of which such obligor is
responsible or liable as obligor, guarantor or otherwise, and (vi) all
obligations of the type referred to in clauses (i) through (v) above of other
Persons secured by any lien on any property or asset of such obligor (whether or
not such obligation is assumed by such obligor), except for (1) any such
indebtedness that is by its terms subordinated to or pari passu with the
Convertible Debentures and (2) any indebtedness between or among such obligor or
its affiliates, including all other debt securities and guarantees in respect of
those debt securities issued to any other trust, or a trustee of such trust,
partnership, or other entity affiliated with the Company that is, directly or
indirectly, a financing vehicle of the Company (a "Financing Entity") in
connection with the issuance by such Financing Entity of preferred securities or
other securities which rank pari passu with, or junior to, the Preferred
Securities. Such Senior Indebtedness shall continue to be Senior Indebted ness
and entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of such Senior Indebtedness.
"Special Event" has the meaning specified in Annex I to the Trust
Agreement.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Convertible
Debenture or any installment of interest thereon, means the date specified in
such Convertible Debenture as the fixed date on which the principal, together
with any accrued and unpaid interest (including Compounded Interest), of such
Convertible Debenture or such installment of interest is due and payable.
"Subsidiary" of any Person means (i) a corporation more than 50%
of the outstanding Voting Stock of which is owned, directly or indirectly, by
such Person or by one or more other Subsidiaries of such Person or by such
Person and one or more Subsidiaries thereof or (ii) any other Person (other than
a corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof.
"Tax Event" has the meaning specified in Annex I to the Trust
Agreement.
"Trading Day" has the meaning specified in Section 1307.
"Transaction" has the meaning specified in Section 1304.
"Trust" has the meaning specified in the Recitals to this
instrument.
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"Trust Agreement" has the meaning specified in the Recitals of
this instrument.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, and the rules and regulations promulgated thereunder,
or any successor legislation.
"Trust Securities" means Common Securities and Preferred
Securities.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" of any Person means capital stock of such Person
which ordinarily has voting power for the election of directors (or Persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of Convertible Debentures has such voting power by
reason of any contingency.
SECTION 202. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee such certificates and opinions as may be required under the Trust
Indenture Act or reasonably requested by the Trustee in connection with such
application or request. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer of the Company,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the
applicable requirements of the Trust Indenture Act and any other applicable
requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he
has made such
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examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 203. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 204. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
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(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee or the Company, as the case may be, deems
sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Outstanding Convertible Debentures entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders. If not set by the Company prior to the first solicitation of a
Holder made by any Person in respect of any such action, or, in the case of any
such vote, prior to such vote, the record date for any such action or vote shall
be the 30th day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 701) prior to such first
solicitation or vote, as the case may be. With regard to any record date, only
the Holders on such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action.
(d) The ownership of Convertible Debentures shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Convertible Debenture shall
bind every future Holder of the same Convertible Debenture and the Holder of
every Convertible Debenture issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Convertible Debenture.
Without limiting the foregoing, a Holder entitled hereunder to give or take any
such action with regard to any particular Convertible Debenture may do so with
regard to all or any part of the principal amount of such Convertible Debenture
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
SECTION 205. Notices, Etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
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(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust & Agency Department, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 206. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at such Holder's address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice
when mailed to a Holder in the aforesaid manner shall be conclusively deemed to
have been received by such Holder whether or not actually received by such
Holder. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 207. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
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SECTION 208. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 209. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 210. Separability Clause.
In case any provision in this Indenture or in the Convertible
Debentures shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 211. Benefits of Indenture.
Nothing in this Indenture or in the Convertible Debentures,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder, the holders of Senior Indebtedness, the holders of
Preferred Securities (to the extent provided herein) and the Holders of
Convertible Debentures, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 212. Governing Law.
THIS INDENTURE AND THE CONVERTIBLE DEBENTURES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 213. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Convertible Debenture or the last date on which a Holder
has the right to convert his Convertible Debentures shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the
Convertible Debentures) payment of interest or principal or conversion of the
Convertible Debentures need not be made on such date, but may be made on the
next succeeding Business Day (except that, if such Business Day is in the next
succeeding calendar year, such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, shall be the immediately preceding Business Day)
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity or on such last day for conversion,
provided, that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
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ARTICLE IV
Convertible Debenture Forms
SECTION 401. Forms Generally.
The Convertible Debentures and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A, which is hereby
incorporated in and expressly made a part of this Indenture. The Convertible
Debentures may have letters, numbers, notations or other marks of identification
or designation and such legends or endorsements required by law, stock exchange
rule, agreements to which the Company is subject, if any, or usage (provided
that any such notation, legend or endorsement is in a form acceptable to the
Company). The Company shall furnish any such legend not contained in Exhibit A
to the Trustee in writing. Each Convertible Debenture shall be dated the date of
its authentication. The terms and provisions of the Convertible Debentures set
forth in Exhibit A are part of the terms of this Indenture and to the extent
applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound
thereby.
The definitive Convertible Debentures shall be typewritten or
printed, lithographed or engraved or produced by any combination of these
methods on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Convertible
Debentures may be listed, all as determined by the officers executing such
Convertible Debentures, as evidenced by their execution thereof.
SECTION 402. Initial Issuance to Property Trustee.
The Convertible Debentures initially issued to the Property
Trustee of the Trust shall be in the form of one or more individual certificates
in definitive, fully registered form without coupons and shall bear the
following legend (the "Restricted Securities Legend") unless the Company
determines otherwise in accordance with applicable law.
"THE CONVERTIBLE DEBENTURES EVIDENCED HEREBY AND THE
COMPANY COMMON STOCK ISSUABLE UPON THEIR CONVERSION HAVE NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO
THE TRANSFEROR AND ANY PERSON ACTING ON BEHALF OF SUCH
TRANSFEROR REASONABLY BELIEVE IS A QUALIFIED INSTITUTIONAL
BUYER ACQUIRING FOR
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<PAGE> 26
ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION COMPLYING WITH RULE 144A UNDER THE
SECURITIES ACT, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE)
OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND, IN EACH CASE, IN COMPLIANCE WITH
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES
AND OTHER JURISDICTIONS.
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ARTICLE VI
The Convertible Debentures
SECTION 601. Title and Terms.
The aggregate principal amount of Convertible Debentures that may
be authenticated and delivered under this Indenture is limited to $103,092,775
(or up to $113,402,050 if the over-allotment option is exercised by the Trust in
accordance with the terms and provisions of the Purchase Agreement), except for
Convertible Debentures authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Convertible Debentures pursuant to
Section 304, 305, 306, 906, 1109 or 1301.
The Convertible Debentures shall be known and designated as the "5
1/4% Convertible Subordinated Debentures Due 2028" of the Company. Their Stated
Maturity shall be April 1, 2028, and they shall bear interest at the rate of 5
1/4% per annum, from March 13, 1998 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, as the case may be,
payable quarterly (subject to deferral as set forth herein), in arrears, on
January 1, April 1, July 1, October 1 (each an "Interest Payment Date") of each
year, commencing July 1, 1998, until the principal thereof is paid or made
available for payment, and they shall be paid to the Person in whose name the
Convertible Debenture is registered at 5:00 p.m. (New York City time) on the
regular record date for such interest installment, which shall be the March 15,
June 15, September 15 and December 15 next preceding such Interest Payment Date
(the "Regular Record Date"). Interest will compound quarterly and will accrue at
the rate of 5 1/4% per annum on any interest installment in arrears for more
than one quarter or during an extension of an interest payment period as set
forth in Section 312 hereof.
The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full quarterly period for which interest in computed, will be computed on the
basis of the actual number of days elapsed per 90-day quarter. In the event that
any date on which interest is payable on the Convertible Debentures is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
If at any time while the Property Trustee is the Holder of any
Convertible Debentures, the Trust or the Property Trustee is required to pay any
taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States, or any other taxing
authority, then, in any such case, the Company will pay as additional interest
("Additional Interest") on the Convertible
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Debentures held by the Property Trustee, such amounts as shall be required so
that the net amounts received and retained by the Trust and the Property Trustee
after paying any such taxes, duties, assessments or other governmental charges
will be not less than the amounts the Trust and the Property Trustee would have
received had no such taxes, duties, assessments or other governmental charges
been imposed.
The principal of and interest on the Convertible Debentures shall
be payable at the office or agency of the Company in the United States
maintained for such purpose and at any other office or agency maintained by the
Company for such purpose in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
The Convertible Debentures shall be redeemable as provided in
Article Eleven hereof.
The Convertible Debentures shall be subordinated in right of
payment to Senior Indebtedness as provided in Article Twelve hereof.
The Convertible Debentures shall be convertible as provided in
Article Thirteen hereof.
SECTION 602. Denominations.
The Convertible Debentures shall be issuable only in registered
form without coupons and only in denominations of $25 and integral multiples
thereof.
SECTION 603. Execution, Authentication, Delivery and Dating.
The Convertible Debentures shall be executed on behalf of the
Company by its Chairman of the Board, its Vice Chairman of the Board, its Chief
Executive Officer, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Convertible
Debentures may be manual or facsimile.
Convertible Debentures bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Convertible Debentures or did not hold such offices at the date of such
Convertible Debentures.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Convertible Debentures executed by
the Company to the Trustee for authentication, together with a Company Order for
the authentication
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and delivery of such Convertible Debentures; and the Trustee in accordance with
such Company Order shall authenticate and make available for delivery such
Convertible Debentures as in this Indenture provided and not otherwise.
No Convertible Debenture shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Convertible Debenture a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature, and such
certificate upon any Convertible Debenture shall be conclusive evidence, and the
only evidence, that such Convertible Debenture has been duly authenticated and
delivered hereunder.
SECTION 604. Temporary Convertible Debentures.
Pending the preparation of definitive Convertible Debentures, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Convertible Debentures which are typewritten, printed,
lithographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Convertible Debentures in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Convertible
Debentures may determine, as evidenced by their execution of such Convertible
Debentures.
If temporary Convertible Debentures are issued, the Company will
cause definitive Convertible Debentures to be prepared without unreasonable
delay. After the preparation of definitive Convertible Debentures, the temporary
Convertible Debentures shall be exchangeable for definitive Convertible
Debentures upon surrender of the temporary Convertible Debentures at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Convertible Debentures the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Convertible Debentures of authorized
denominations. Until so exchanged the temporary Convertible Debentures shall in
all respects be entitled to the same benefits under this Indenture as definitive
Convertible Debentures.
SECTION 605. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Convertible Debentures and of transfers of Convertible
Debentures. The Trustee is hereby appointed "Security Registrar" for the purpose
of registering Convertible Debentures and transfers of Convertible Debentures
as herein provided.
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Upon surrender for registration of transfer of any Convertible
Debenture at an office or agency of the Company designated pursuant to Section
1002 for such purpose, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Convertible Debentures of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, Convertible Debentures may be
exchanged for other Convertible Debentures of any authorized denominations and
of a like aggregate principal amount, upon surrender of the Convertible
Debentures to be exchanged at such office or agency. Whenever any Convertible
Debentures are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, the Convertible
Debentures which the Holder making the exchange is entitled to receive.
All Convertible Debentures issued upon any registration of
transfer or exchange of Convertible Debentures shall be the valid obligations of
the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Convertible Debentures surrendered upon such registration
of transfer or exchange.
Every Convertible Debenture presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Convertible Debentures, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Convertible
Debentures, other than exchanges pursuant to Section 304, 906, 1109 or 1301 not
involving any transfer.
SECTION 606. Mutilated, Destroyed, Lost and Stolen Convertible
Debentures.
If any mutilated Convertible Debenture is surrendered to the
Trustee, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Convertible Debenture of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Convertible Debenture and (ii) such Convertible Debenture or indemnity as may be
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Convertible Debenture has been acquired by a bona fide purchaser, the Company
shall execute and the Trustee shall authenticate and deliver, in lieu of any
such
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destroyed, lost or stolen Convertible Debenture, a new Convertible Debenture of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Convertible
Debenture has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Convertible Debenture, pay such
Convertible Debenture.
Upon the issuance of any new Convertible Debenture under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Convertible Debenture issued pursuant to this Section in
lieu of any destroyed, lost or stolen Convertible Debenture shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Convertible Debenture shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Convertible Debentures duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Convertible
Debentures.
SECTION 607. Payment of Interest; Interest Rights Preserved.
Interest on any Convertible Debenture which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Convertible Debenture (or one or more
Predecessor Securities) is registered at 5:00 p.m. (New York City time) on the
Regular Record Date.
Any interest on any Convertible Debenture which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Convertible Debentures (or their
respective Predecessor Securities) are registered at 5:00 p.m. (New York City
time) on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Convertible Debenture and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make
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arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause (a)
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder at his address as it appears
in the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Convertible Debentures (or their
respective Predecessor Securities) are registered at 5:00 p.m. (New York City
time) on such Special Record Date and shall no longer be payable pursuant to the
following Clause (b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Convertible Debentures may be listed, and, if so listed,
upon such notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this Clause (B),
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 307, each
Convertible Debenture delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Convertible Debenture
shall carry the rights to interest accrued and unpaid, and to accrue (including
in each such case Additional Payments, if any), which were carried by such other
Convertible Debenture.
In the case of any Convertible Debenture which is converted after
any Regular Record Date and on or prior to the next succeeding Interest Payment
Date (other than any Convertible Debenture whose Maturity is prior to such
Interest Payment Date), interest whose Stated Maturity is on such Interest
Payment Date shall be payable on such Interest Payment Date notwithstanding such
conversion, and such interest (whether or not punctually paid or duly provided
for) shall be paid to the Person in whose name that Convertible Debenture (or
one or more Predecessor Securities) is registered at 5:00 p.m. (New York City
time) on such Regular Record Date. Except as otherwise expressly provided in the
immediately preceding sentence, in the case of any Convertible Debenture that
is converted prior to any Regular Record Date, interest whose Stated Maturity is
after the date of conversion of such Convertible Debenture shall not be payable,
and the Company shall not make nor be required to make any other payment,
adjustment or allowance with respect to accrued but unpaid interest (including
Additional Payments, if any) on the Convertible Debentures being converted,
which shall be deemed to be paid in full. Subject to any right of the Holder of
such Convertible Debenture or any Predecessor Security to receive interest
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as provided in this paragraph and the second paragraph of Clause (a) of Section
1302, the Company's delivery upon conversion of the fixed number of shares of
Company Common Stock into which the Convertible Debentures are convertible
(together with the cash payment, if any, in lieu of fractional shares) shall be
deemed to satisfy the Company's obligation to pay the principal amount at
Maturity of the portion of Convertible Debentures so converted and any unpaid
interest (including Additional Payments, if any) accrued on such Convertible
Debentures at the time of such conversion. If any Convertible Debenture called
for redemption is converted, any money deposited with the Trustee or with any
Paying Agent or so segregated and held in trust for the redemption of such
Convertible Debenture shall (subject to any right of the Holder of such
Convertible Debenture or any Predecessor Security to receive interest as
provided in this paragraph) be paid to the Company upon Company Request or, if
then held by the Company, shall be discharged from such trust.
SECTION 608. Persons Deemed Owners.
Prior to due presentment of a Convertible Debenture for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Convertible Debenture is
registered as the owner of such Convertible Debenture for the purpose of
receiving payment of principal of and (subject to Section 307) interest
(including Additional Payments, if any) on such Convertible Debenture and for
all other purposes whatsoever, whether or not such Convertible Debenture be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
SECTION 609. Cancellation.
All Convertible Debentures surrendered for payment, redemption,
registration of transfer or exchange or conversion shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Convertible Debentures previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Convertible Debentures so delivered shall be promptly cancelled by the Trustee.
No Convertible Debentures shall be authenticated in lieu of or in exchange for
any Convertible Debentures cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Convertible Debentures held
by the Trustee shall be disposed of as directed by a Company Order; provided,
however, that the Trustee shall not be required to destroy the certificates
representing such cancelled Convertible Debentures.
SECTION 610. Right of Set Off.
Notwithstanding anything to the contrary in this Indenture, the
Company shall have the right to set off any payment it is otherwise required to
make hereunder to the extent the Company has theretofore made, or is
concurrently on the date of such payment making, a payment under the Guarantee.
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SECTION 611. CUSIP Numbers.
The Company in issuing the Convertible Debentures may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; provided, that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Convertible Debentures or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Convertible Debentures, and any such
redemption shall not be affected by any defect in or omission of such numbers.
SECTION 612. Option to Extend Interest Payment Period.
(a) Provided that no Event of Default has occurred and is
continuing, the Company shall have the right at any time during the term of the
Convertible Debentures to defer interest payments (including Additional
Payments) from time to time by extending the interest payment period for
successive periods (each, an "Extension Period") not exceeding 20 consecutive
quarters for each such period; provided, no Extension Period may extend beyond
the maturity date of the Convertible Debentures. At the end of each Extension
Period, the Company shall pay all interest then accrued and unpaid (including
Additional Interest) together with interest thereon compounded quarterly at the
rate specified for the Convertible Debentures to the extent permitted by
applicable law ("Compounded Interest"); provided, that during any Extension
Period, the Company shall (i) not declare or pay dividends on, or make a
distribution with respect to, or redeem or purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (A)
purchases or acquisitions of shares of Company Common Stock in connection with
the satisfaction by the Company of its obligations under any employee benefit
plans or the satisfaction by the Company of its obligations pursuant to any
contract or security requiring the Company to purchase shares of Company Common
Stock, (B) as a result of a reclassification of the Company's capital stock or
the exchange or conversion of one class or series of the Company's capital stock
for another class or series of the Company's capital stock or (C) the purchase
of fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged) or make any guarantee payments with respect to the
foregoing, (ii) not make any payment of interest, principal or premium, if any,
on or repay, repurchase or redeem any debt securities (including guarantees)
issued by the Company that rank pari passu with or junior to the Convertible
Debentures (except by conversion into or exchange for shares of its capital
stock) and (iii) not make any guarantee payments with respect to the foregoing
(other than pursuant to the Guarantee). Prior to the termination of any such
Extension Period, the Company may further extend such Extension Period;
provided, that such Extension Period, together with all such previous and
further extensions thereof, may not exceed 20 consecutive quarters or extend
beyond the maturity date of the Convertible Debentures. Upon the termination of
any Extension Period and the payment of all amounts then due, the
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Company may commence a new Extension Period, subject to the above requirements.
No interest during an Extension Period, except at the end thereof, shall be due
and payable. Notwithstanding any other provision in this Indenture to the
contrary, the Company shall not have the right at any time to defer any
Additional Interest, including by extending the interest payment period.
(b) If the Property Trustee is the sole Holder of the Convertible
Debentures at the time the Company selects an Extension Period, the Company
shall give written notice to the Administrative Trustees and the Property
Trustee of its selection of such Extension Period at least one Business Day
prior to the earlier of (i) the date the distributions on the Preferred
Securities are payable or (ii) if the Preferred Securities are listed on the New
York Stock Exchange or other stock exchange or quotation system, the date the
Trust is required to give notice to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Preferred
Securities of the record date or the date such distributions are payable, but in
any event not less than 10 Business Days prior to such record date. The Company
shall cause the Trust to give notice of the Company's selection of such
Extension Period to the holders of the Preferred Securities.
(c) If the Property Trustee is not the sole holder of the
Convertible Debentures at the time the Company selects an Extension Period, the
Company shall give the Holders of the Convertible Debentures and the Trustee
written notice of its selection of such Extension Period at least 10 Business
Days prior to the earlier of (i) the next succeeding Interest Payment Date or
(ii) if the Preferred Securities are listed on the New York Stock Exchange or
other stock exchange or quotation system, the date the Company is required to
give notice to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Convertible Debentures on the record or
payment date of such related interest payment, but in any event not less than
two Business Days prior to such record date.
(d) The quarter in which any notice is given pursuant to
paragraphs (b) and (c) hereof shall be counted as one of the 20 quarters
permitted in the maximum Extension Period permitted under paragraph (a) hereof.
SECTION 613. Paying Agent, Security Registrar and Conversion Agent.
The Trustee will initially act as Paying Agent, Security Registrar
and Conversion Agent. The Company may change any Paying Agent, Security
Registrar, co-registrar or Conversion Agent without prior notice. The Company or
any of its Affiliates may act in any such capacity. The Trustee is entitled to
the protections of Article VI in its capacity as Paying agent, Registrar and
Conversion Agent.
SECTION 314. Global Security.
(a) In connection with a Dissolution Event,
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(1) the Convertible Debentures in certificated form
may be presented to the Trustee by the Property Trustee in exchange for a global
Convertible Debenture in an aggregate principal amount equal to the aggregate
principal amount of all outstanding Convertible Debentures (a "Global
Security"), to be registered in the name of the Depositary, or its nominee, and
delivered by the Trustee to the Depositary for crediting to the accounts of its
participants pursuant to the instructions of the Administrative Trustees. The
Company upon any such presentation shall execute a Global Security in such
aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with this Indenture. Payments on the
Convertible Debentures issued as a Global Security will be made to the
Depositary; and
(2) if any Preferred Securities are held in non
book-entry certificated form, the Convertible Debentures in certificated form
may be presented to the Trustee by the Property Trustee and any Preferred
Security Certificate which represents Preferred Securities other than Preferred
Securities held by the Depositary or its nominee ("Non Book-Entry Preferred
Securities") will be deemed to represent beneficial interests in Convertible
Debentures presented to the Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation amount of the Non Book-Entry
Preferred Securities until such Preferred Security Certificates are presented to
the Security Registrar for transfer or reissuance at which time such Preferred
Security Certificates will be cancelled and a Convertible Debenture, registered
in the name of the holder of the Preferred Security Certificate or the
transferee of the holder of such Preferred Security Certificate, as the case may
be, with an aggregate principal amount equal to the aggregate liquidation amount
of the Preferred Security Certificate cancelled, will be executed by the Company
and delivered to the Trustee for authentication and delivery in accordance with
this Indenture. On issue of such Convertible Debentures, Convertible Debentures
with an equivalent aggregate principal amount that were presented by the
Property Trustee to the Trustee will be deemed to have been cancelled.
(b) A Global Security may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a nominee of such
successor Depositary.
(c) If (i) the Depositary notifies the Company that it is
unwilling or unable to continue as a depositary for such Global Security and no
successor depositary shall have been appointed, (ii) the Depositary, at any
time, ceases to be a clearing agency registered under the Exchange Act at which
time the Depositary is required to be so registered to act as such depositary
and no successor depositary shall have been appointed, (iii) the Company, in
its sole discretion, determines that such Global Security shall be so
exchangeable or (iv) there shall have occurred an Event of Default with respect
to such Convertible Debentures, as the case may be, the Company will execute,
and, subject to Article Three of this Indenture, the Trustee, upon written
notice from the Company and receipt of a Company Order, will authenticate and
deliver the Convertible Debentures in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Security in exchange for such Global
Security. In addition,
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upon an Event of Default or if the Company may at any time determine that the
Convertible Debentures shall no longer be represented by a Global Security, in
such event the Company will execute, and subject to Section 305 of this
Indenture, the Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and make available for delivery
the Convertible Debentures in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security in exchange for such Global Security.
Upon the exchange of the Global Security for such Convertible Debentures in
definitive registered form without coupons, in authorized denominations, the
Global Security shall be cancelled by the Trustee. Such Convertible Debentures
in definitive registered form issued in exchange for the Global Security shall
be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such
Convertible Debentures to the Depositary for delivery to the Persons in whose
names such Convertible Debentures are so registered.
(d) Every Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form, in capital letters and
bold-face type:
THIS CONVERTIBLE DEBENTURE IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF
A DEPOSITARY OR A NOMINEE THEREOF. THIS CONVERTIBLE DEBENTURE MAY NOT
BE EXCHANGED IN WHOLE OR IN PART FOR A CONVERTIBLE DEBENTURE
REGISTERED, AND NO TRANSFER OF THIS CONVERTIBLE DEBENTURE IN WHOLE OR
IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
(e) If the Depositary is the Depository Trust Company, the Global
Security authenticated and delivered hereunder shall also bear a legend in
substantially the following form, in capital letters and bold-face type:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED SIGNATORY OF THE
DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED
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REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
(f) The Convertible Debentures may not be transferred except in
compliance with the Restricted Securities Legend unless otherwise determined by
the Company in accordance with applicable law. Upon any distribution of the
Convertible Debentures to the holders of the Preferred Securities in accordance
with the Trust Agreement, the Company and the Trustee shall enter into a
supplemental indenture pursuant to Section 901(e) to provide for transfer
procedures and restrictions with respect to the Convertible Debentures
substantially similar to those contained in the Trust Agreement to the extent
applicable in the circumstances existing at the time of such distribution.
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ARTICLE VIII
Satisfaction and Discharge
SECTION 801. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to any surviving rights of conversion, registration of transfer or exchange of
Convertible Debentures herein expressly provided for), and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all Convertible Debentures theretofore
authenticated and delivered (other than (A) Convertible Debentures
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306 and (B) Convertible Debentures for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(ii) all such Convertible Debentures not theretofore
delivered to the Trustee for cancellation have become due and payable,
and the Company has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount sufficient to
pay and discharge the entire indebtedness on such Convertible
Debentures not theretofore delivered to the Trustee for cancellation,
for principal and interest (including Additional Payments, if any) to
the date of such deposit (in the case of Convertible Debentures which
have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be, along with an accountant's certificate
stating such funds are sufficient to pay principal and interest on the
Convertible Debentures when and as due;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the
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Trustee pursuant to subclause (ii) of Clause (a) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 802. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Convertible
Debentures and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and
interest for whose payment such money has been deposited with the Trustee. All
moneys deposited with the Trustee pursuant to Section 401 (and held by it or any
Paying Agent) for the payment of Convertible Debentures subsequently converted
shall be returned to the Company upon Company Request.
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ARTICLE X
Remedies
SECTION 1001. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events that has occurred and is continuing (whatever the reason for
such Event of Default and whether it shall be occasioned by the provisions of
Article Twelve or be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) failure for 30 days to pay interest on the Convertible
Debentures, including any Additional Payments in respect thereof, when due;
provided that a valid extension of an interest payment period will not
constitute a default in the payment of interest (including Additional Payments,
if any) for this purpose;
(b) failure to pay principal of or premium, if any, on the
Convertible Debentures when due, whether at maturity, upon redemption, by Trust
Agreement or otherwise;
(c) failure by the Company to deliver shares of its Company
Common Stock upon an election by a holder of Preferred Securities to convert
such Preferred Securities;
(d) failure to observe or perform any other covenant contained
in the Indenture for 90 days after notice to the Company by the Trustee or by
the holders of not less than 25% in aggregate outstanding principal amount of
the Convertible Debentures;
(e) entry by a court having jurisdiction in the premises of
(i) a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (ii) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of substantially all of the property of the
Company, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 60 consecutive days;
(f) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the Company or to the
entry of a decree or order for relief in respect of itself in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
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insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company, or the filing
by the Company of a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, or the consent by the Company
to the filing of such petition or to the appointment of or taking possession by
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of substantially all of the property of the
Company, or the making by the Company of an assignment for the benefit of
creditors, or the admission by the Company in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(g) the voluntary or involuntary dissolution, winding up or
termination of the Trust, except in connection with (i) the distribution of
Convertible Debentures to holders of Preferred Securities in liquidation of the
Trust upon the redemption of all of the outstanding Preferred Securities of the
Trust or (ii) certain mergers, consolidations or amalgamations, each as
permitted by the Trust Agreement.
SECTION 1002. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstand ing Convertible Debentures may declare the principal of
all the Convertible Debentures and any other amounts payable hereunder to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal and
all accrued interest shall become immediately due and payable.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as provided in this Article, the Holders of a majority
in aggregate principal amount of the Outstanding Convertible Debentures, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest (including Additional
Payments, if any) on all Convertible Debentures,
(ii) the principal of any Convertible Debentures
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Convertible
Debentures, and
(iii) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the
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Trustee, its agents and counsel;
and
(b) all Events of Default, other than the non-payment of the
principal of Convertible Debentures which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 1003. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(a) default is made in the payment of any interest (including
Additional Payments, if any) on any Convertible Debenture when such interest
becomes due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of any
Convertible Debenture at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Convertible Debentures, the whole amount then due and payable on
such Convertible Debentures for principal and interest (including Additional
Payments, if any) and, to the extent that payment thereof shall be legally
enforceable, interest on any overdue principal and on any overdue interest
(including Additional Payments, if any), at the rate borne by the Convertible
Debentures, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 1004. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Convertible Debentures), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and
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the Trustee allowed in any such proceeding. In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Convertible Debentures or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 1005. Trustee May Enforce Claims Without Possession of Convertible
Debentures.
All rights of action and claims under this Indenture or the
Convertible Debentures may be prosecuted and enforced by the Trustee without the
possession of any of the Convertible Debentures or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Convertible
Debentures in respect of which such judgment has been recovered.
SECTION 1006. Application of Money Collected.
Subject to Article Twelve, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or interest (including Additional Payments, if any), upon
presentation of the Convertible Debentures and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest (including Additional Payments, if any) on
the Convertible Debentures in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Convertible Debentures for principal and interest (including Additional
Payments, if any), respectively.
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SECTION 1007. Limitation on Suits.
Subject to Section 516, no Holder of any Convertible Debenture
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) if the Trust is not the sole holder of Convertible
Debentures, the Holders of not less than 25% in aggregate principal amount of
the Outstanding Convert ible Debentures shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Convertible Debentures;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 1008. Unconditional Right of Holders to Receive Principal and
Interest and Convert.
Notwithstanding any other provision in this Indenture, the
Holder of any Convertible Debenture shall have the right, which is absolute and
unconditional, to receive payment of the principal of and (subject to Section
307) interest (including Additional Payments, if any) on such Convertible
Debenture on the respective Stated Maturities expressed in such Convertible
Debenture (or, in the case of redemption, on the Redemption Date) and to convert
such Convertible Debenture in accordance with Article Thirteen and to institute
suit for the enforcement of any such payment and right to convert, and such
rights shall not be impaired without the consent of such Holder.
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SECTION 1009. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 1010. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Convertible Debentures in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 1011. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Convertible Debenture to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 1012. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Convert ible Debentures shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee; provided,
that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture; and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 1013. Waiver of Past Defaults.
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Subject to Section 902 hereof, the Holders of not less than a
majority in principal amount of the Outstanding Convertible Debentures may on
behalf of the Holders of all the Convertible Debentures waive any past default
hereunder and its consequences, except a default
(a) in the payment of the principal of, premium, if any, or
interest (including Additional Payments, if any) on any Convertible Debenture
(unless such default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration has
been deposited with the Trustee); or
(b) in respect of a covenant or provision hereof that under
Article Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected; provided, however, that if the Convertible
Debentures are held by the Trust or a trustee of the Trust, such waiver shall
not be effective until the holders of a majority in liquidation amount of Trust
Securities shall have consented to such waiver; provided, further, that if the
consent of the Holder of each outstanding Convertible Debenture is required,
such waiver shall not be effective until each holder of the Trust Securities
shall have consented to such waiver.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 1014. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Inden ture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; provided, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company
or the Trustee or in any suit for the enforcement of the right to receive the
principal of and interest (including Additional Payments, if any) on any
Convertible Debenture or to convert any Convertible Debenture in accordance with
Article Thirteen.
SECTION 1015. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the
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Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 1016. Enforcement by Holders of Preferred Securities.
Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to the failure of the
Company to pay interest or principal on the Convertible Debentures on the date
such interest or principal is otherwise payable, the Company acknowledges that,
in such event, a holder of Preferred Securities may institute a Direct Action
for payment on or after the respective due date specified in the Convertible
Debentures. The Company may not amend this Indenture to remove the foregoing
right to bring a Direct Action without the prior written consent of all the
holders of Preferred Securities. Notwithstanding any payment made to such holder
of Preferred Securities by the Company in connection with a Direct Action, the
Company shall remain obligated to pay the principal of and interest on the
Convertible Debentures (including Additional Payments, if any) held by the Trust
or the Property Trustee and the Company shall be subrogated to the rights of the
holder of such Preferred Securities with respect to payments on the Preferred
Securities to the extent of any payments made by the Company to such holder in
any Direct Action. The holders of Preferred Securities will not be able to
exercise directly any other remedy available to the Holders of the Convert ible
Debentures.
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ARTICLE XII
The Trustee
SECTION 1201. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no provision
of this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this Indenture or indemnity
reasonably satisfactory to the Trustee against such risk or liability is not
reasonably assured to it. Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 601.
SECTION 1202. Notice of Defaults.
The Trustee shall give the Holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(d), no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section 602, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default. For all purposes hereof, the Trustee shall not be deemed to
have notice or knowledge of any default described in Section 501(e), (f) or (g)
unless a Responsible Officer assigned to and working in the Corporate Trust
Office has actual knowledge thereof or unless written notice thereof is received
at the Corporate Trust Office.
SECTION 1203. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem
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it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel of its choice and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
reasonable examination of the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith, without gross negligence
or wilful misconduct, and reasonably believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture.
SECTION 1204. Not Responsible for Recitals or Issuance of
Convertible Debentures.
The recitals contained herein and in the Convertible
Debentures, except the Trustee's certificates of authentication, shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Convertible Debentures. The Trustee
shall not be accountable for the use or application by the Company of the
Convertible Debentures or the proceeds thereof.
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SECTION 1205. May Hold Convertible Debentures.
The Trustee, any Paying Agent, any Security Registrar or any
other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Convertible Debentures and, subject to Sections 608 and
613, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Paying Agent, Security Registrar, or such other agent.
SECTION 1206. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 1207. Compensation and Reimbursement.
The Company agrees
(a) to pay to the Trustee from time to time such compensation
as the Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder;
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses, fees,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its gross negligence or bad
faith; and
(c) to indemnify the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred without
gross negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of this trust, including the costs and expenses
of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(f) or Section
501(g), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
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SECTION 1208. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Inden ture Act and this Indenture.
SECTION 1209. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and has its Corporate
Trust Office in New York, New York. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 1210. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Convertible
Debentures, delivered to the Trustee and to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(d) If at any time:
(i) the Trustee shall fail to comply with Section
608 after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Convertible Debenture for at least six
months, or
(ii) the Trustee shall cease to be eligible under
Section 609
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and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by Board Resolution may remove the
Trustee, or (B) subject to Section 514, any Holder who has been a bona fide
Holder of a Convertible Debenture for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Convertible Debentures delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appoint ment, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a
Convertible Debenture for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation
and each removal of the Trustee and each appointment of a successor Trustee to
all Holders in the manner provided in Section 106. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust
Office.
SECTION 1211. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or convey ance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; provided, that on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to
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such successor Trustee all property and money held by such retiring Trustee
hereunder. Upon request of any such successor Trustee, the Company shall execute
any and all instruments required to more fully and certainly vest in and confirm
to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 1212 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Convertible Deben tures shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Convertible Debentures so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Convertible Debentures.
SECTION 1213. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Convertible Debentures), the Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
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ARTICLE XIV
Holders' Lists and Reports by Trustee and Company
SECTION 1401. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the
Trustee
(a) semiannually, not later than February 15 and August 15 in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of a date not more than 15 days prior to
the delivery thereof, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 1402. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list fur nished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Convertible
Debentures, and the corre sponding rights and duties of the Trustee, shall be as
provided by the Trust Indenture Act.
(c) Every Holder of Convertible Debentures, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses
of Holders made pursuant to the Trust Indenture Act.
SECTION 1403. Reports by Trustee.
(a) Within 60 days after May 15 of each year, commencing May
15, 1998, the Trustee shall transmit by mail to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to
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Holders, be filed by the Trustee with each stock exchange upon which the
Convertible Debentures are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Convertible Debentures are listed on
any stock exchange.
SECTION 1404. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided, that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute con structive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
The Company shall also provide to the Trustee on a timely
basis such information as the Trustee requires to enable the Trustee to prepare
and file any form required to be submitted by the Company with the Internal
Revenue Service and the Holders of the Convertible Debentures relating to
original issue discount, if any, includ ing, without limitation, Form 1099-OID
or any successor form.
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ARTICLE XVI
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 1601. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge with or into
any other Person or, directly or indirectly, convey, transfer or lease all or
substantially all of its properties and assets on a consolidated basis to any
Person, unless:
(a) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer or lease,
all or substantially all of the properties and assets of the Company on a
consolidated basis shall be a corporation, partnership or trust, shall be
organized and validly existing under the laws of the United States of America,
any State thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest (including Additional Payments,
if any) on all the Convertible Debentures and the performance or observance of
every covenant of this Indenture on the part of the Company to be performed or
observed and shall have provided for conversion rights in accordance with
Article Thirteen;
(b) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or a
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an Event
of Default, shall have happened and be continuing; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
comply with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
This Section shall only apply to a merger or consolidation in
which the Company is not the surviving corporation and to conveyances, leases
and transfers by the Company as transferor or lessor.
SECTION 1602. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of all or
substantially all the properties and assets of the Company on a consolidated
basis in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to
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which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter the predecessor Person shall be relieved
of all obligations and covenants under this Indenture and the Convertible
Debentures.
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ARTICLE XVIII
Supplemental Indentures
SECTION 1801. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the Company
herein and in the Convertible Debentures; or
(b) to add to the covenants of the Company for the benefit
of the Holders, or to surrender any right or power herein conferred upon the
Company; or
(c) to make provision with respect to the conversion rights
of Holders pursuant to the requirements of Article Thirteen; or
(d) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provi sions with respect to matters or questions arising under
this Indenture which shall not be inconsistent with the provisions of this
Indenture; provided, that such action pursuant to this Clause (d) shall not
adversely affect the interests of the Holders of the Convertible Debentures or,
so long as any of the Preferred Securities shall remain outstanding, the holders
of the Preferred Securities;
(e) to comply with the requirements of the Commission in
order to effect or maintain the qualification of this Indenture under the Trust
Indenture Act; or
to make provision for transfer procedures, certification, book-entry provisions,
the form of restricted securities legends, if any, to be placed on Convertible
Debentures, and all other matters required pursuant to Sections 305 and 314 or
otherwise necessary, desirable or appropriate in connection with the issuance of
Convertible Debentures to holders of Preferred Securities in the event of a
distribution of Convertible Debentures by the Trust if a Special Event occurs
and is continuing.
SECTION 1802. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Convertible Debentures, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the
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Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provi sions of this Indenture or of modifying in any manner the rights of
the Holders under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(a) extend the Stated Maturity of the principal of, or any
installment of interest (including Additional Payments, if any) on, any
Convertible Debenture, or reduce the principal amount thereof, or reduce the
rate or extend the time for payment of interest thereon, or extend the Extension
Period, or reduce any premium payable upon the redemption thereof, or change the
place of payment where, or the coin or currency in which, any Convertible
Debenture or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or adversely
affect the right to convert any Convertible Debenture as provided in Article
Thirteen (except as permitted by Section 901(c)), or modify the provisions of
this Indenture with respect to the subordination of the Convertible Debentures
in a manner adverse to the Holders,
reduce the percentage in principal amount of the Outstanding Convertible
Debentures, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or modify any
of the provisions of this Section or Section 513, except to increase any such
percentage or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby;
provided that if the Convertible Debentures are held by the Trust or a trustee
of the Trust, such supplemental indenture shall not be effective until the
holders of a majority in liquidation amount of Trust Securities shall have
consented to such supplemental indenture; provided, further, that if the consent
of the Holder of each Outstanding Security is required, such supplemental
indenture shall not be effective until each holder of the Trust Securities of
the Trust shall have consented to such supplemental indenture.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental inden ture, whether or not such Holders
remain Holders after such record date; provided that unless such consent shall
have become effective by virtue of the requisite percentage having been obtained
prior
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to the date which is 90 days after such record date, any such consent previously
given shall automatically and without further action by any Holder be cancelled
and of no further effect.
SECTION 1803. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 1804. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Convertible Debentures theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby. No such supplemental indenture
shall directly or indirectly modify the provisions of Article Twelve in any
manner which might terminate or impair the rights of the Senior Indebtedness
pursuant to such subordination provisions.
SECTION 1805. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 1806. Reference in Convertible Debentures to Supplemental
Indentures.
Convertible Debentures authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Convertible Debentures so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Convertible Debentures.
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ARTICLE XX
Covenants; Representations and Warranties
SECTION 2001. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and
interest on the Convertible Debentures and Additional Payments, if any, in
accordance with the terms of the Convertible Debentures and this Indenture.
SECTION 2002. Maintenance of Office or Agency.
The Company will maintain in the United States an office or
agency where Convertible Debentures may be presented or surrendered for payment,
where Convertible Debentures may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Convertible Debentures and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in the United States) where the Convertible
Debentures may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the United States for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 2003. Money for Convertible Debenture Payments to Be Held
in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of or interest on any of
the Convertible Debentures, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal of or interest on any Convertible
Debentures, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the
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Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will (i) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (ii) during the continuance
of any default by the Company (or any other obligor upon the Convertible
Debentures) in the making of any payment in respect of the Convertible
Debentures, upon the written request of the Trustee, forthwith pay to the
Trustee all sums held in trust by such Paying Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfac tion and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or
interest on (including Additional Payments, if any) any Convertible Debenture
and remaining unclaimed for two years after such principal or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
any such Convertible Debenture shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease.
SECTION 2004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the material terms, provisions and conditions of this Indenture (without
regard to any period of grace or requirement of notice provided hereunder) and,
if the Company shall be in default, specifying all such defaults and the nature
and status thereof of which they may have knowledge.
SECTION 2005. Limitation on Dividends; Covenants as to the Trust.
(a) The Company covenants that so long as the Convertible
Debentures are outstanding, if (i) there shall have occurred and be continuing
any event that with the giving
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of notice or the lapse of time or both, would constitute an Event of Default,
(ii) the Company shall be in default with respect to its payment of any
obligations under the Guarantee, or (iii) the Company has exercised its option
to defer interest payments on the Convertible Debentures by extending the
interest payment period and such period, or any extension thereof, shall be
continuing, then the Company shall (A) not declare or pay dividends on, or make
a distribution with respect to, or redeem or purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (x)
purchases or acquisitions of shares of Company Common Stock in connection with
the satisfaction by the Company of its obligations under any employee benefit
plans or the satisfaction by the Company of its obligations pursuant to any
contract or security requiring the Company to purchase shares of Company Common
Stock, (y) as a result of a reclassification of the Company's capital stock or
the exchange or conversion of one class or series of the Company's capital stock
for another class or series of the Company's capital stock or (z) the purchase
of fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged) or make any guarantee payments with respect to the
foregoing, (B) not make any payment of interest, principal or premium, if any,
on or repay, repurchase or redeem any debt securities (including guarantees)
issued by the Company that rank pari passu with or junior to the Convertible
Debentures and (C) not make any guarantee payments with respect to the foregoing
(other than pursuant to the Guarantee).
(b) The Company also covenants and agrees (i) that it shall
directly or indirectly maintain 100% ownership of the Common Securities of the
Trust; provided, however, that any permitted successor of the Company hereunder
may succeed to the Company's ownership of such Common Securities and (ii) that
it shall use its reasonable efforts, consistent with the terms and provisions of
the Trust Agreement, to cause the Trust (x) to remain a statutory business
trust, except in connection with the distribution of the Convertible Debentures
to the holders of Trust Securities in liquidation of the Trust, the redemption
of all of the Trust Securities of the Trust, or certain mergers, consolida tions
or amalgamations, each as permitted by the Trust Agreement, and (y) to otherwise
continue to be classified as a grantor trust for United States Federal income
tax purposes.
SECTION 2006. Payment of Expenses of the Trust.
In connection with the offering, sale and issuance of the
Convertible Debentures to the Property Trustee in connection with the sale of
the Trust Securities by the Trust, the Company shall:
(a) pay for all costs, fees and expenses relating to the
offering, sale and issuance of the Convertible Debentures, including
commissions, discounts and expenses payable pursuant to the Purchase Agreement
and compensation of the Trustee under the Indenture in accordance with the
provisions of Section 607 of the Indenture;
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(b) be responsible for and pay for all debts and obligations
(other than with respect to the Trust Securities) of the Trust, pay for all
costs and expenses of the Trust (including, but not limited to, costs and
expenses relating to the organization of the Trust, the offering, sale and
issuance of the Trust Securities (including commissions, discounts and expenses
in connection therewith), the fees and expenses of the Property Trustee and the
Delaware Trustee, the costs and expenses relating to the operation of the Trust,
including without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the acquisition,
financing, and disposition of Trust assets); and
pay any and all taxes (other than United States withholding taxes attributable
to the Trust or its assets) and all liabilities, costs and expenses with respect
to such taxes of the Trust.
SECTION 2007. Registration Rights.
The holders of the Preferred Securities, the Holders of
Convertible Debentures, the holders of the Guarantee and the shares of Company
Common Stock issuable upon conversion of the Convertible Debentures are entitled
to the benefits of the Registration Rights Agreement, dated as of March 18,
1998, among the Company and the Initial Purchasers (the "Registration Rights
Agreement").
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ARTICLE XXII
Redemption of Convertible Debentures
SECTION 2201. Optional Redemption.
(a) The Company shall have the right to redeem the Convertible
Debentures, in whole or in part, at any time or from time to time after April 3,
2001 upon not less than 30 nor more than 60 days' notice, at the optional
redemption prices (expressed as a percentage of the principal amount of
Convertible Debentures to be redeemed) shown below, plus any accrued and unpaid
interest (including Additional Payments, if any) to the Redemption Date, if
redeemed during the 12-month period beginning April 3:
<TABLE>
<CAPTION>
Percentage of
Principal
Year Amount
---- -------------
<S> <C>
2001 .................................. 103.00%
2002 .................................. 102.25%
2003 .................................. 101.50%
2004 .................................. 100.75%
2005 and thereafter ................... 100.00%
</TABLE>
If the Company has deferred interest payments, all unpaid interest must be paid
in cash prior to redemption. Any redemption pursuant to this Section 1101 shall
be made pursuant to the provisions of Sections 1103 through 1108 hereof.
(b) If a partial redemption of the Convertible Debentures would result
in the delisting of the Preferred Securities issued by the Trust from any
national securities exchange or other organization on which the Preferred
Securities are listed, the Company shall not be permitted to effect such partial
redemption and may only redeem the Convertible Debentures in whole.
SECTION 2202. Tax Event Optional Redemption.
If a Tax Event has occurred and is continuing and:
(a) the Company has received a Redemption Tax Opinion; or
(b) after receiving a Dissolution Tax Opinion, the Administrative
Trustees shall have been informed by tax counsel rendering the Dissolution Tax
Opinion that a No Recognition Opinion cannot be delivered to the Trust,
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then, notwithstanding Section 1101(a) but subject to Section 1101(b), the
Company shall have the right upon not less than 30 days nor more than 60 days
notice to the Holders of the Convertible Debentures to redeem the Convertible
Debentures in whole (but not in part) for cash at a redemption price equal to
100% of the principal amount of the Convertible Debentures plus accrued and
unpaid interest (including Additional Payments), if any, within 90 days
following the occurrence of such Tax Event (the "90-Day Period"); provided,
however, that if, at the time there is available to the Company or the Trust the
opportunity to eliminate within the 90-Day Period, the Tax Event by taking some
ministerial action ("Ministerial Action"), such as filing a form or making an
election, or pursuing some other similar reasonable measure which, in the sole
judgment of the Company, has or will cause no adverse effect on the Company, the
Trust or the Holders of the Trust Securities and will involve no material cost,
the Company or the Trust shall pursue such Ministerial Action or other measure
in lieu of redemption, and provided, further, that the Company shall have no
right to redeem the Convertible Debentures while the Trust is pursuing any
Ministerial Action or other similar measure pursuant to its obligations under
the Trust Agreement.
SECTION 2203. Applicability of Article.
Redemption of Convertible Debentures at the election of the Company, as
permitted by Sections 1101 and 1102, shall be made in accordance with such
provision and this Article.
SECTION 2204. Election to Redeem; Notice to Trustee.
The election of the Company to redeem Convertible Debentures pursuant
to Section 1101 or 1102 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 45 days
and no more than 90 days prior to the Redemption Date fixed by the Company,
notify the Trustee in writing of such Redemption Date and of the principal
amount of Convertible Debentures to be redeemed and provide a copy of the notice
of redemption given to Holders of Convertible Debentures to be redeemed pursuant
to Section 1105.
SECTION 2205. Selection by Trustee of Convertible Debentures to Be Redeemed.
If less than all the Convertible Debentures are to be redeemed (unless
such redemption affects only a single Convertible Debenture), the particular
Convertible Debentures to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Trustee, from the Outstanding Convertible
Debentures not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to $25 or any integral multiple thereof) of the
principal amount of the Convertible Debentures.
The Trustee shall promptly notify the Company in writing of the
Convertible Debentures selected for redemption as aforesaid and, in case of any
Convertible Debentures selected for partial redemption as aforesaid, the
principal amount thereof to be redeemed.
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The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Convertible Debenture, whether
such Convertible Debenture is to be redeemed in whole or in part. In the case of
any such redemption in part, the unredeemed portion of the principal amount of
the Convertible Debenture shall be in an authorized denomination (which shall
not be less than the minimum authorized denomination) for such Convertible
Debenture.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Convertible Debentures
shall relate, in the case of any Convertible Debentures redeemed or to be
redeemed only in part, to the portion of the principal amount of such
Convertible Debentures which has been or is to be redeemed.
SECTION 2206. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Convertible Debentures to be redeemed, at such Holder's
address appearing in the Security Register.
All notices of redemption shall identify the Convertible Debentures to
be redeemed (including, if relevant, CUSIP number or ISIN) and shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) that on the Redemption Date the Redemption Price will become due
and payable upon each such Convertible Debenture to be redeemed and that
interest thereon will cease to accrue on and after said date, and
(d) the place or places where such Convertible Debentures are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Convertible Debentures to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 2207. Deposit and Payment of Redemption Price.
Prior to 10:00 a.m. (New York City time) on the Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, plus (except if the Redemption Date shall be an Interest Payment Date)
accrued and unpaid interest (including Additional
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Payments, if any) on all the Convertible Debentures which are to be redeemed on
that date. Such redemption payment shall be made to the Holders prior to 12:00
noon (New York City time) on the Redemption Date or such earlier time as the
Company determines.
If any Convertible Debenture called for redemption is converted, any
money deposited with the Trustee or with any Paying Agent or so segregated and
held in trust for the redemption of such Convertible Debenture shall (subject to
any right of the Holder of such Convertible Debenture or any Predecessor
Security to receive interest as provided in the last paragraph of Section 307)
be paid to the Company upon Company Request or, if then held by the Company,
shall be discharged from such trust.
SECTION 2208. Convertible Debentures Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Convertible
Debentures so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued and unpaid interest, including Additional Payments, if any) such
Convertible Debentures shall cease to bear interest. Upon surrender of any such
Convertible Debenture for redemption in accordance with said notice, such
Convertible Debenture shall be paid by the Company at the Redemption Price,
together with accrued and unpaid interest (including Additional Payments, if
any) to the Redemption Date; provided, however, that installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Convertible Debentures, or one or more Predecessor
Convertible Debentures, registered as such at 5:00 p.m. (New York City time) on
the relevant Record Dates according to the terms and the provisions of Section
307.
If any Convertible Debenture called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at the rate borne by the Convertible
Debenture.
SECTION 2209. Convertible Debentures Redeemed in Part.
In the event of any redemption in part, the Company shall not be
required to (i) issue, register the transfer of or exchange any Convertible
Debenture during a period beginning at 9:00 a.m. (New York City time) 15
Business Days before any selection for redemption of Convertible Debentures and
ending at 5:00 p.m. (New York City time) on the earliest date in which the
relevant notice of redemption is deemed to have been given to all holders of
Convertible Debentures to be so redeemed and (ii) register the transfer of or
exchange any Convertible Debentures so selected for redemption, in whole or in
part, except for the unredeemed portion of any Convertible Debentures being
redeemed in part.
Any Convertible Debenture which is to be redeemed only in part shall be
surrendered at a place of payment therefor (with, if the Company or the Trustee
so requires,
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due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Convertible Debenture without service charge, a new Convertible Debenture or
Convertible Debentures, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Convertible Debenture so surrendered.
SECTION 2210. No Sinking Fund.
The Convertible Debentures are not entitled to the benefit of any
sinking fund.
SECTION 2211. Mandatory Redemption.
Upon (i) repayment at maturity or (ii) as a result of acceleration upon
the occurrence and continuation of an Event of Default, the Company shall redeem
the Outstanding Convertible Debentures in whole but not in part, at a redemption
price equal to 100% of the principal amount of such Convertible Debentures plus
any accrued and unpaid interest, including any Additional Payments, to the date
fixed for redemption. Any payment pursuant to this section shall be made prior
to 12:00 noon, New York City time, on the date of such repayment or acceleration
or at such other time on such earlier date as the parties thereto shall agree.
SECTION 2212. Exchange of Trust Securities For Convertible Debentures.
At any time, the Company shall have the right to dissolve the Trust and
cause the Convertible Debentures to be distributed to the holders of the
Preferred Securities in dissolution of the Trust after satisfaction of
liabilities to creditors of the Trust as provided by applicable law.
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ARTICLE XXIV
Subordination of Convertible Debentures
SECTION 2401. Agreement to Subordinate.
The Company covenants and agrees, and each Holder of Convertible
Debentures by such Holder's acceptance thereof likewise covenants and agrees,
that all Convertible Debentures shall be issued subject to the provisions of
this Article Twelve; and each Holder of a Convertible Debenture, whether upon
original issue or upon transfer or assignment thereof, accepts and agrees to be
bound by such provisions. The payment by the Company of the principal of,
premium, if any, and interest (including Additional Payments, if any) on all
Convertible Debentures issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and junior in right of payment to the
prior payment in full of all existing and future Senior Indebtedness, whether
outstanding at the date of this Indenture or thereafter incurred; provided
however, that no provision of this Article Twelve shall prevent the occurrence
of any default or Event of Default hereunder.
SECTION 2402. Default on Senior Indebtedness.
In the event and during the continuation of any default by the Company
in the payment of principal, premium, interest or any other payment due on any
Senior Indebtedness continuing beyond the period of grace, if any, specified in
the instrument evidencing such Senior Indebtedness, unless and until such
default shall have been cured or waived or shall have ceased to exist, and in
the event that the maturity of any Senior Indebtedness has been accelerated
because of a default, then no payment shall be made by the Company with respect
to the principal of (including redemption payments, if any), premium, if any, or
interest on the Convertible Debentures.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 1202, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
SECTION 2403. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any
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dissolution or winding up or liquidation or reorganization of the Company,
whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or
other proceedings, all principal of, and premium, if any, and interest due or to
become due on, all Senior Indebtedness must be paid in full before any payment
is made on account of the principal (and premium, if any) or interest (including
Additional Payments, if any) on the Convertible Debentures; and upon any such
dissolution or winding up or liquidation or reorganization, any payment by the
Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Convertible
Debentures or the Trustee would be entitled, except for the provisions of this
Article Twelve, shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders of the Convertible Debentures or by the Trustee
under this Indenture if received by them or it, directly to the holders of
Senior Indebtedness (pro rata to such holders on the basis of the respective
amounts of Senior Indebtedness held by such holders, as calculated by the
Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay such Senior Indebtedness in full, in
money or money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Holders of Convertible Debentures or to
the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee or the Holders of the Convertible Debentures before all Senior
Indebtedness is paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of Senior
Indebtedness or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, and their respective interests may
appear, as calculated by the Company, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay such Senior
Indebtedness in full in money in accordance with its terms, after giving effect
to any concurrent payment or distribution to or for the holders of such Senior
Indebtedness.
For purposes of this Article Twelve, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article Twelve with
respect to the Convertible Debentures to the payment of all Senior Indebtedness
which may at the time be outstanding; provided, that (i) such Senior
Indebtedness is assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of such
Senior Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment.
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The consolidation of the Company with, or the merger of the Company with or
into, another Person or the liquidation or dissolution of the Company following
the conveyance, transfer or lease of all or substantially all its properties and
assets on a consolidated basis to another Person upon the terms and conditions
provided for in Article Eight hereof shall not be deemed a dissolution, winding
up, liquidation or reorganization for the purposes of this Section 1203 if such
other Person shall, as a part of such consolidation, merger, conveyance,
transfer or lease, comply with the conditions stated in Article Eight hereof.
Nothing in Section 1202 or in this Section 1203 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607 hereof.
SECTION 2404. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the rights
of the Holders of the Convertible Debentures shall be subrogated to the rights
of the holders of such Senior Indebtedness to receive payments or distributions
of cash, property or securities of the Company, as the case may be, applicable
to such Senior Indebtedness until the principal of (and premium, if any,) and
interest (including Additional Payments, if any) on the Convertible Debentures
shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of such Senior Indebtedness of any cash, property
or securities to which the Holders of the Convertible Debentures or the Trustee
would be entitled except for the provisions of this Article Twelve, and no
payment over pursuant to the provisions of this Article Twelve, to or for the
benefit of the holders of such Senior Indebtedness by Holders of the Convertible
Debentures or the Trustee, shall, as between the Company, its creditors other
than holders of Senior Indebtedness, and the Holders of the Convertible
Debentures, be deemed to be a payment by the Company to or on account of such
Senior Indebtedness. It is understood that the provisions of this Article Twelve
are and are intended solely for the purposes of defining the relative rights of
the Holders of the Convertible Debentures, on the one hand, and the holders of
such Senior Indebtedness on the other hand.
Nothing contained in this Article Twelve or elsewhere in this Indenture
or in the Convertible Debentures is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Convertible Debentures, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Convertible Debentures
the principal of (and premium, if any) and interest (including Additional
Payments, if any) on the Convertible Debentures as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the Convertible Debentures
and creditors of the Company, as the case may be, other than the holders of
Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or
the Holder of any Convertible Debenture from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article Twelve of the holders of such Senior
Indebtedness in respect of cash, property or Convertible Debentures of the
Company, as the case may be, received upon the exercise of any such remedy.
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Upon any payment or distribution of assets of the Company referred to
in this Article Twelve, the Trustee, subject to the provisions of Section 603,
and the Holders of the Convertible Debentures, shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of the Convertible Debentures, for the purposes of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company, as the
case may be, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Twelve.
SECTION 2405. Trustee to Effectuate Subordination.
Each Holder of Convertible Debentures by such Holder's acceptance
thereof authorizes and directs the Trustee on such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article Twelve and appoints the Trustee as such Holder's
attorney-in-fact for any and all such purposes.
SECTION 2406. Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company which would prohibit the making
of any payment of monies to or by the Trustee in respect of the Convertible
Debentures pursuant to the provisions of this Article Twelve. Notwithstanding
the provisions of this Article Twelve or any other provision of this Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment of monies to or by the Trustee in
respect of the Convertible Debentures pursuant to the provision of this Article
Twelve, unless and until a Responsible Officer of the Trustee shall have
received written notice thereof at the Corporate Trust Office of the Trustee
from the Company or a holder or holders of Senior Indebtedness or from any
trustee therefor; and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 603 hereof, shall be entitled in
all respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section 1206 at
least two Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of (and premium, if any) or interest (including
Additional Payments, if any) on any Convertible Debenture), then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the purposes
for which they were received, and shall not be affected by any notice to the
contrary which may be received by it within two Business Days prior to such
date.
The Trustee, subject to the provisions of Section 603, shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of
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Senior Indebtedness (or a trustee on behalf of such holder) to establish that
such notice has been given by a holder of such Senior Indebtedness or a trustee
on behalf of any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article Twelve, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the right of such Person under this Article Twelve,
and, if such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment.
SECTION 2407. Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Twelve in respect of any Senior Indebtedness at
any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are set forth in this Article Twelve, and no implied covenants or
obligations with respect to the holders of such Senior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of such Senior Indebtedness and, subject
to the provisions of Section 603, the Trustee shall not be liable to any holder
of such Senior Indebtedness if it shall pay over or deliver to Holders of
Convertible Debentures, the Company or any other Person money or assets to which
any holder of such Senior Indebtedness shall be entitled by virtue of this
Article Twelve or otherwise. With respect to the holders of Senior Indebtedness,
the Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article Twelve and no implied
covenants or obligations with respect to holders of Senior Indebtedness shall be
read into this Indenture against the Trustee.
SECTION 2408. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent
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of or notice to the Trustee or the Holders of the Convertible Debentures,
without incurring responsibility to the holders of the Convertible Debentures
and without impairing or releasing the subordination provided in this Article
Twelve or the obligations hereunder of the Holders of the Convertible Debentures
to the holders of Senior Indebtedness, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, such Senior Indebtedness, or otherwise amend or supplement in
any manner such Senior Indebtedness or any instrument evidencing the same or any
agreement under which such Senior Indebtedness is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Indebtedness; (iii) release any Person liable in
any manner for the collection of such Senior Indebtedness; and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.
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ARTICLE XXVI
Conversion of Convertible Debentures
SECTION 2601. Conversion Rights.
Subject to and upon compliance with the provisions of this Article, the
Convertible Debentures are convertible, at the option of the Holder, at any time
on or before 5:00 p.m. (New York City time) on the Business Day immediately
preceding the date of repayment of such Convertible Debentures, whether at
maturity or upon redemption (either at the option of the Company or pursuant to
a Tax Event), into fully paid and nonassessable shares of Company Common Stock
of the Company at an initial conversion rate of 0.4545 shares of Company Common
Stock for each $25 in aggregate principal amount of Convertible Debentures
(equal to a conversion price of $55.00 per share of Company Common Stock),
subject to adjustment as described in this Article Thirteen. A Holder of
Convertible Debentures may convert any portion of the principal amount of the
Convertible Debentures into that number of fully paid and nonassessable shares
of Company Common Stock (calculated as to each conversion to the nearest 1/100th
of a share) obtained by dividing the principal amount of the Convertible
Debentures to be converted by such conversion price. In case a Convertible
Debenture or portion thereof is called for redemption, such conversion right in
respect of the Convertible Debenture or portion so called shall expire at 5:00
p.m. (New York City time) on the Business Day immediately preceding the
corresponding Redemption Date, unless the Company defaults in making the payment
due upon redemption.
SECTION 2602. Conversion Procedures.
(a) In order to convert all or a portion of the Convertible Debentures,
the Holder thereof shall deliver to the Conversion Agent an irrevocable Notice
of Conversion setting forth the principal amount of Convertible Debentures to be
converted, together with the name or names, if other than the Holder, in which
the shares of Company Common Stock should be issued upon conversion and, if such
Convertible Debentures are definitive Convertible Debentures, surrender to the
Conversion Agent the Convertible Debentures to be converted, duly endorsed or
assigned to the Company or in blank. In addition, a holder of Preferred
Securities may exercise its right under the Trust Agreement to convert such
Preferred Securities into Company Common Stock by delivering to the Conversion
Agent an irrevocable Notice of Conversion setting forth the information called
for by the preceding sentence and directing the Conversion Agent (i) to exchange
such Preferred Security for a portion of the Convertible Debentures held by the
Trust (at an exchange rate of $25 liquidation amount of Convertible Debentures
for each Preferred Security) and (ii) to immediately convert such Convertible
Debentures, on behalf of such holder, into Company Common Stock of the Company
pursuant to this Article Thirteen and, if such Preferred Securities are in
definitive form, surrendering such Preferred Securities, duly endorsed or
assigned to the Company or in blank. So long as any Preferred Securities are
outstanding,
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the Trust shall not convert any Convertible Debentures except pursuant to a
Notice of Conversion delivered to the Conversion Agent by a holder of Preferred
Securities.
If a Notice of Conversion is delivered on or after the Regular Record
Date and prior to the subsequent Interest Payment Date, the Holder will be
entitled to receive the interest payable on the subsequent Interest Payment Date
on the portion of Convertible Debentures to be converted notwithstanding the
conversion thereof prior to such Interest Payment Date. Except as otherwise
provided in the immediately preceding sentence, in the case of any Convertible
Debenture which is converted, interest whose Stated Maturity is after the date
of conversion of such Convertible Debenture shall not be payable, and the
Company shall not make nor be required to make any other payment, adjustment or
allowance with respect to accrued but unpaid interest (including Additional
Payments, if any) on the Convertible Debentures being converted, which shall be
deemed to be paid in full. If any Convertible Debenture called for redemption is
converted, any money deposited with the Trustee or with any Paying Agent or so
segregated and held in trust for the redemption of such Convertible Debenture
shall (subject to any right of the Holder of such Convertible Debenture or any
Predecessor Security to receive interest as provided in the last paragraph of
Section 307 and this paragraph) be paid to the Company upon Company Request or,
if then held by the Company, shall be discharged from such trust.
Each conversion shall be deemed to have been effected immediately prior
to 5:00 p.m. (New York City time) on the day on which the Notice of Conversion
was received (the "Conversion Date") by the Conversion Agent from the Holder or
from a holder of the Preferred Securities effecting a conversion thereof
pursuant to its conversion rights under the Trust Agreement, as the case may be.
The Person or Persons entitled to receive the Company Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such Company Common Stock as of the Conversion Date. As promptly as
practicable on or after the Conversion Date, the Company shall issue and deliver
at the office of the Conversion Agent, unless otherwise directed by the Holder
in the Notice of Conversion, a certificate or certificates for the number of
full shares of Company Common Stock issuable upon such conversion, together with
the cash payment, if any, in lieu of any fraction of any share to the Person or
Persons entitled to receive the same. The Conversion Agent shall deliver such
certificate or certificates to such Person or Persons.
(b) Subject to any right of the Holder of such Convertible Debenture or
any Predecessor Security to receive interest as provided in the last paragraph
of Section 307 and the second paragraph of Clause (a) of Section 1302, the
Company's delivery upon conversion of the fixed number of shares of Company
Common Stock into which the Convertible Debentures are convertible (together
with the cash payment, if any, in lieu of fractional shares) shall be deemed to
satisfy the Company's obligation to pay the principal amount at Maturity of the
portion of Convertible Debentures so converted and any unpaid interest
(including Additional Payments, if any) accrued on such Convertible Debentures
at the time of such conversion.
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(c) No fractional shares of Company Common Stock will be issued as a
result of conversion, but in lieu thereof, the Company shall pay to the
Conversion Agent a cash adjustment in an amount equal to the same fraction of
the last reported sale price of such fractional interest on the date on which
the Convertible Debentures or Preferred Securities, as the case may be, were
duly surrendered to the Conversion Agent for conversion, or, if such day is not
a Trading Day, on the next Trading Day, and the Conversion Agent in turn will
make such payment, if any, to the Holder of the Convertible Debentures or the
holder of the Preferred Securities so converted.
(d) In the event of the conversion of any Convertible Debenture in part
only, a new Convertible Debenture or Convertible Debentures for the unconverted
portion thereof will be issued in the name of the Holder thereof upon the
cancellation thereof in accordance with Section 305.
(e) In effecting the conversion transactions described in this Section,
the Conversion Agent is acting as agent of the holders of Preferred Securities
(in the exchange of Preferred Securities for Convertible Debentures) and as
agent of the Holders of Convertible Debentures (in the conversion of Convertible
Debentures into Company Common Stock), as the case may be, directing it to
effect such conversion transactions. The Conversion Agent is hereby authorized
(i) to exchange Convertible Debentures held by the Trust from time to time for
Preferred Securities in connection with the conversion of such Preferred
Securities in accordance with this Article Thirteen and (ii) to convert all or a
portion of the Convertible Debentures into Company Common Stock and thereupon to
deliver such shares of Company Common Stock in accordance with the provisions of
this Article Thirteen and to deliver to the Trust a new Convertible Debenture or
Convertible Debentures for any resulting unconverted principal amount.
(f) Except as provided in Section 202, all shares of Company Common
Stock delivered upon any conversion of Restricted Securities shall bear a
Restrictive Securities Legend substantially in the form of the legend required
to be set forth on such Convertible Debentures and shall be subject to the
restrictions on transfer provided in such legend and in Section 314 hereof.
Neither the Trustee nor the Conversion Agent shall have any responsibility for
the inclusion or content of any such Restrictive Securities Legend on such
Company Common Stock; provided, however, that the Trustee or the Conversion
Agent shall have provided to the Company or to the Company's transfer agent for
such Company Common Stock, prior to or concurrently with a request to the
Company to deliver to such Conversion Agent certificates for such Company Common
Stock, written notice that the Convertible Debentures delivered for conversion
are Restricted Securities.
SECTION 2603. Conversion Price Adjustments.
The conversion price shall be subject to adjustment (without
duplication) from time to time as follows:
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(a) In case the Company shall, while any of the Convertible Debentures
are outstanding, (i) pay a dividend or make a distribution with respect to its
Company Common Stock in shares of Company Common Stock, (ii) subdivide its
outstanding shares of Company Common Stock, (iii) combine its outstanding shares
of Company Common Stock into a smaller number of shares or (iv) issue by
reclassification of its shares of Company Common Stock any shares of capital
stock of the Company, the conversion price in effect immediately prior to such
action shall be adjusted so that the Holder of any Convertible Debentures
thereafter surrendered for conversion shall be entitled to receive the number of
shares of capital stock of the Company which he would have owned immediately
following such action had such Convertible Debentures been converted immediately
prior thereto. An adjustment made pursuant to this Section 1303(a) shall become
effective immediately after the record date in the case of a dividend or other
distribution and shall become effective immediately after the effective date in
case of a subdivision, combination or reclassification (or immediately after the
record date if a record date shall have been established for such event). If, as
a result of an adjustment made pursuant to this Section 1303(a), the Holder of
any Convertible Debenture thereafter surrendered for conversion shall become
entitled to receive shares of two or more classes or series of capital stock of
the Company, the Board of Directors (whose determination shall be conclusive and
shall be described in a Board Resolution filed with the Trustee) shall determine
the allocation of the adjusted conversion price between or among shares of such
classes or series of capital stock.
(b) In case the Company shall, while any of the Convertible Debentures
are outstanding, issue rights or warrants to all holders of its Company Common
Stock entitling them (for a period expiring within 45 days after the record date
mentioned in this Section 1303(b)) to subscribe for or purchase shares of
Company Common Stock at a price per share less than the current market price per
share of Company Common Stock (as determined pursuant to 1303(f) below) on such
record date, the conversion price for the Convertible Debentures shall be
adjusted so that the same shall equal the price determined by multiplying the
conversion price in effect immediately prior to the date of issuance of such
rights or warrants by a fraction of which the numerator shall be the number of
shares of Company Common Stock outstanding on the date of issuance of such
rights or warrants plus the number of shares which the aggregate offering price
of the total number of shares so offered for subscription or purchase would
purchase at such current market price, and of which the denominator shall be the
number of shares of Company Common Stock outstanding on the date of issuance of
such rights or warrants plus the number of additional shares of Company Common
Stock offered for subscription or purchase. Such adjustment shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such rights or warrants. For the purposes of
this subsection, the number of shares of Company Common Stock at any time
outstanding shall not include shares held in the treasury of the Company. The
Company shall not issue any rights or warrants in respect of shares of Company
Common Stock held in the treasury of the Company. In case any rights or warrants
referred to in this subsection in respect of which an adjustment shall have been
made shall expire unexercised within 45 days after the same shall have been
distributed or issued by the Company, the conversion price shall be readjusted
at the time of such
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expiration to the conversion price that would have been in effect if no
adjustment had been made on account of the distribution or issuance of such
expired rights or warrants.
(c) Subject to the last sentence of this Section 1303(c), in case the
Company shall, by dividend or otherwise, distribute to all holders of its
Company Common Stock evidences of its indebtedness, shares of any class or
series of capital stock, cash or assets (including securities, but excluding any
rights or warrants referred to in Section 1303(b), any dividend or distribution
paid exclusively in cash and any dividend or distribution referred to in Section
1303(a)), the conversion price shall be reduced so that the same shall equal the
price determined by multiplying the conversion price in effect immediately prior
to the effectiveness of the conversion price reduction contemplated by this
Section 1303(c) by a fraction of which the numerator shall be the current market
price per share (determined as provided in Section 1303(f)) of the Company
Common Stock on the date fixed for the payment of such distribution (the
"Reference Date") less the fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors), on the Reference Date, of the portion of
the evidences of indebtedness, shares of capital stock, cash and assets so
distributed applicable to one share of Company Common Stock and the denominator
shall be such current market price per share of the Company Common Stock, such
reduction to become effective immediately prior to the opening of business on
the day following the Reference Date. In the event that such dividend or
distribution is not so paid or made, the conversion price shall again be
adjusted to be the conversion price which would then be in effect if such
dividend or distribution had not occurred. If the Board of Directors determines
the fair market value of any distribution for purposes of this Section 1303(c)
by reference to the actual or when issued trading market for any securities
comprising such distribution, it must in doing so consider the prices in such
market over the same period used in computing the current market price per share
of Company Common Stock (determined as provided in Section 1303(f)). For
purposes of this Section 1303(c), any dividend or distribution that includes
shares of Company Common Stock or rights or warrants to subscribe for or
purchase shares of Company Common Stock shall be deemed instead to be (1) a
dividend or distribution of the evidences of indebtedness, shares of capital
stock, cash or assets other than such shares of Company Common Stock or such
rights or warrants (making any conversion price reduction required by this
Section 1303(c)) immediately followed by (2) a dividend or distribution of such
shares of Company Common Stock or such rights or warrants (making any further
conversion price reduction required by Section 1303(a) or 1303(b)), except (A)
the Reference Date of such dividend or distribution as defined in this 1303(c)
shall be substituted as (a) "the record date in the case of a dividend or other
distribution," and (b) "the record date for the determination of stockholders
entitled to receive such rights or warrants" and (c) "the date fixed for such
determination" within the meaning of Sections 1303(a) and 1303(b) and (B) any
shares of Company Common Stock included in such dividend or distribution shall
not be deemed outstanding for purposes of computing any adjustment of the
conversion price in Section 1303(a).
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(d) In case the Company shall pay or make a dividend or other
distribution on its Company Common Stock exclusively in cash (excluding all
regular cash dividends, if the annualized amount thereof per share of Company
Common Stock does not exceed 20% of the current market price per share
determined as provided in Section 1303(f) of the Company Common Stock on the
Trading Day immediately preceding the date of declaration of such dividend), the
conversion price shall be reduced so that the same shall equal the price
determined by multiplying the conversion price in effect immediately prior to
the effectiveness of the conversion price reduction contemplated by this Section
1303(d) by a fraction of which the numerator shall be the current market price
per share (determined as provided in Section 1303(f)) of the Company Common
Stock on the date fixed for the payment of such distribution less the amount of
cash so distributed and not excluded as provided applicable to one share of
Company Common Stock and the denominator shall be such current market price per
share of the Company Common Stock, such reduction to become effective
immediately prior to the opening of business on the day following the date fixed
for the payment of such distribution; provided, however, that in the event the
portion of the cash so distributed applicable to one share of Company Common
Stock is equal to or greater than the current market price per share (as defined
in Section 1303(f)) of the Company Common Stock on the record date mentioned
above, in lieu of the foregoing adjustment, adequate provision shall be made so
that each Holder of shares of Convertible Debentures shall have the right to
receive upon conversion the amount of cash such Holder would have received had
such Holder converted each share of the Convertible Debentures immediately prior
to the record date for the distribution of the cash. In the event that such
dividend or distribution is not so paid or made, the conversion price shall
again be adjusted to be the conversion price which would then be in effect if
such record date had not been fixed.
(e) In case a tender or exchange offer (other than an odd-lot offer)
made by the Company or any Subsidiary of the Company for all or any portion of
the Company's Company Common Stock shall expire and such tender or exchange
offer shall involve the payment by the Company or such Subsidiary of
consideration per share of Company Common Stock having a fair market value (as
determined in good faith by the Board of Directors, whose determination shall be
conclusive and described in a resolution of the Board of Directors) at the last
time (the "Expiration Time") tenders or exchanges may be made pursuant to such
tender or exchange offer (as it shall have been amended) that exceeds 110% of
the current market price per share (determined as provided in Section 1303(f))
of the Company Common Stock on the Trading Day next succeeding the Expiration
Time, the conversion price shall be reduced so that the same shall equal the
price determined by multiplying the conversion price in effect immediately prior
to the effectiveness of the conversion price reduction contemplated by this
Section 1303(e) by a fraction of which the numerator shall be the number of
shares of Company Common Stock outstanding (including any tendered or exchanged
shares) at the Expiration Time multiplied by the current market price per share
(determined as provided in Section 1303(f)) of the Company Common Stock on the
Trading Day next succeeding the Expiration Time and the denominator shall be the
sum of (x) the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to any maximum
specified in the terms
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of the tender or exchange offer) of all shares validly tendered or exchanged and
not withdrawn as of the Expiration Time (the shares deemed so accepted, up to
any such maximum, being referred to as the "Purchased Shares") and (y) the
product of the number of shares of Company Common Stock outstanding (less any
Purchased Shares) at the Expiration Time and the current market price per share
(determined as provided in Section 1303(f)) of the Company Common Stock on the
Trading Day next succeeding the Expiration Time, such reduction to become
effective immediately prior to the opening of business on the day following the
Expiration Time.
(f) For the purpose of any computation under Section 1303(b), 1303(c),
1303(d) or 1303(e), the current market price per share of Company Common Stock
on any date in question shall be deemed to be the average of the daily Closing
Prices for the five consecutive Trading Days selected by the Company commencing
not more than 20 Trading Days before, and ending not later than, the earlier of
the day in question or, if applicable, the day before the "ex" date with respect
to the issuance or distribution requiring such computation; provided, however,
that if another event occurs that would require an adjustment pursuant to
Section 1303(a) through (e), inclusive, the Board of Directors may make such
adjustments to the Closing Prices during such five Trading Day period as it
deems appropriate to effectuate the intent of the adjustments in this Section
1303, in which case any such determination by the Board of Directors shall be
set forth in a Board Resolution and shall be conclusive. For purposes of this
paragraph, the term "ex" date, (i) when used with respect to any issuance or
distribution, means the first date on which the Company Common Stock trades
regular way on the New York Stock Exchange or on such successor securities
exchange as the Company Common Stock may be listed or in the relevant market
from which the Closing Prices were obtained without the right to receive such
issuance or distribution, and (ii) when used with respect to any tender or
exchange offer, means the first date on which the Company Common Stock trades
regular way on such securities exchange or in such market after the Expiration
Time of such offer.
(g) The Company may make such reductions in the conversion price, in
addition to those required by Sections 1303 (a) through (e), as it considers to
be advisable to avoid or diminish any income tax to holders of Company Common
Stock or rights to purchase Company Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated as
such for income tax purposes. The Company from time to time may reduce the
conversion price by any amount for any period of time if the period is at least
20 days, the reduction is irrevocable during the period, and the Board of
Directors of the Company shall have made a determination that such reduction
would be in the best interest of the Company, which determination shall be
conclusive. Whenever the conversion price is reduced pursuant to the preceding
sentence, the Company shall mail to holders of record of the Convertible
Debentures a notice of the reduction at least 15 days prior to the date the
reduced conversion price takes effect, and such notice shall state the reduced
conversion price and the period it will be in effect.
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(h) No adjustment in the conversion price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
conversion price; provided, however, that any adjustments which by reason of
this Section 1303(h) are not required to be made shall be carried forward and
taken into account in determining whether any subsequent adjustment shall be
required.
(i) If any action would require adjustment of the conversion price
pursuant to more than one of the provisions described above, only one adjustment
shall be made and such adjustment shall be the amount of adjustment that has the
highest absolute value to the Holder of the Convertible Debentures.
SECTION 2604. Fundamental Change.
(a) In the event that the Company is party to any transaction
(including, without limitation, a merger other than a merger that does not
result in a reclassification, conversion, exchange or cancellation of Company
Common Stock), consolidation, sale of all or substantially all of the assets of
the Company, recapitalization or reclassification of Company Common Stock (other
than a change in par value, or from par value to no par value, or from no par
value to par value or as a result of a subdivision or combination of Company
Common Stock) or any compulsory share exchange (each of the foregoing being
referred to as a "Transaction"), in each case, as a result of which shares of
Company Common Stock shall be converted into the right to receive, or shall be
exchanged for, (i) in the case of any Transaction other than a Transaction
involving a Common Stock Fundamental Change (and subject to funds being legally
available for such purpose under applicable law at the time of such conversion),
securities, cash or other property, each Preferred Security shall thereafter be
convertible into the kind and, in the case of a Transaction which does not
involve a Fundamental Change, amount of securities, cash and other property
receivable upon the consummation of such Transaction by a holder of that number
of shares of Company Common Stock into which a Preferred Security was
convertible immediately prior to such Transaction, or (ii) in the case of a
Transaction involving a Common Stock Fundamental Change, common stock, each
Preferred Security shall thereafter be convertible (in the manner described
therein) into common stock of the kind received by holders of Company Common
Stock (but in each case after giving effect to any adjustment discussed below
relating to a Fundamental Change if such Transaction constitutes a Fundamental
Change). The holders of Preferred Securities will have no voting rights with
respect to any Transaction.
(b) If any Fundamental Change occurs, then the conversion price in
effect will be adjusted immediately after such Fundamental Change as described
below. In addition, in the event of a Common Stock Fundamental Change, each
Preferred Security shall be convertible solely into common stock of the kind
received by holders of Company Common Stock as a result of such Common Stock
Fundamental Change.
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<PAGE> 85
(c) The conversion price in the case of any Transaction involving a
Fundamental Change will be adjusted immediately after such Fundamental Change:
(i) in the case of a Non-Stock Fundamental Change, the
conversion price of the Preferred Securities will thereupon become the
lower of (A) the conversion price in effect immediately prior to such
Non-Stock Fundamental Change, but after giving effect to any other
prior adjustments effected pursuant to the preceding paragraphs, and
(B) the greater of the Applicable Price or the then applicable
Reference Market Price plus any then-accrued and unpaid distributions
on one Preferred Security; and
(ii) in the case of a Common Stock Fundamental Change, the
conversion price of the Preferred Securities in effect immediately
prior to such Common Stock Fundamental Change, but after giving effect
to any other prior adjustments effected pursuant to the preceding
paragraphs, will thereupon be adjusted by multiplying such conversion
price by a fraction of which the numerator will be the Purchaser Stock
Price and the denominator will be the Applicable Price; provided,
however, that in the event of a Common Stock Fundamental Change in
which (A) 100% of the value of the consideration received by a holder
of Company Common Stock is common stock of the successor, acquirer, or
other third party (and cash, if any, is paid only with respect to any
fractional interests in such common stock resulting from such Common
Stock Fundamental Change) and (B) all Company Common Stock will be have
been exchanged for, converted into, or acquired for common stock (and
cash with respect to fractional interests) of the successor, acquirer,
or other third party, the conversion price of the Preferred Securities
in effect immediately prior to such Common Stock Fundamental Change
will thereupon be adjusted by multiplying such conversion price by a
fraction of which the numerator will be one and the denominator will be
the number of shares of common stock of the successor, acquirer, or
other third party received by a holder of one share of Company Common
Stock as a result of such Common Stock Fundamental Change.
The Company or the Person formed by such consolidation or resulting
from such merger or which acquired such assets or which acquires the Company's
shares, as the case may be, shall make provision in its certificate or articles
of incorporation or other constituent document to establish such right. Such
certificate or articles of incorporation or other constituent document shall
provide for adjustments which, for events subsequent to the effective date of
such certificate or articles of incorporation or other constituent document,
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article Thirteen. The above provisions shall similarly apply to
successive transactions of the foregoing type.
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<PAGE> 86
SECTION 2605. Notice of Adjustments of Conversion Price.
Whenever the conversion price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price and shall
prepare a certificate signed by the Chief Financial Officer or the Treasurer of
the Company setting forth the adjusted Conversion Price and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Trustee, the Conversion Agent and
the transfer agent for the Preferred Securities and the Convertible Debentures;
and
(b) a notice stating the Conversion Price has been adjusted and setting
forth the adjusted Conversion Price shall as soon as practicable be mailed by
the Company to all record holders of Preferred Securities and the Convertible
Debentures at their last addresses as they appear upon the stock transfer books
of the Company and the Trust.
SECTION 2606. Prior Notice of Certain Events.
In case:
(a) the Company shall (i) declare any dividend (or any other
distribution) on its Company Common Stock, other than (A) a dividend payable in
shares of Company Common Stock or (B) a dividend payable in cash that would not
require an adjustment pursuant to Section 1303(c) or 1303(d), or (ii) authorize
a tender or exchange offer that would require an adjustment pursuant to Section
1303(e);
(b) the Company shall authorize the granting to all holders of Company
Common Stock of rights or warrants to subscribe for or purchase any shares of
stock of any class or series or of any other rights or warrants;
of any reclassification of Company Common Stock (other than a subdivision or
combination of the outstanding Company Common Stock, or a change in par value,
or from par value to no par value, or from no par value to par value), or of any
consolidation or merger to which the Company is a party and for which approval
of any stockholders of the Company shall be required, or of the sale or transfer
of all or substantially all of the assets of the Company or of any compulsory
share exchange whereby the Company Common Stock is converted into other
securities, cash or other property; or
(c) of the voluntary or involuntary dissolution, liquidation or winding
up of the Company;
then the Company shall (1) if any Preferred Securities are outstanding, cause to
be filed with the transfer agent for the Preferred Securities, and shall cause
to be mailed to the holders of record of the Preferred Securities, at their last
addresses as they shall appear upon the stock transfer books the Trust or (2)
shall cause to be mailed to all Holders at their last addresses as they shall
appear in the Security Register, at least 15 days prior to the applicable record
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<PAGE> 87
or effective date hereinafter specified, a notice stating (x) the date on which
a record (if any) is to be taken for the purpose of such dividend, distribution,
rights or warrants or, if a record is not to be taken, the date as of which the
holders of Company Common Stock of record to be entitled to such dividend,
distribution, rights or warrants are to be determined or (y) the date on which
such reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Company Common Stock of record
shall be entitled to exchange their shares of Company Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up (but no failure to mail such notice or any defect therein or in
the mailing thereof shall affect the validity of the corporate action required
to be specified in such notice).
SECTION 2607. Certain Defined Terms.
The following definitions shall apply to terms used in this Article
Thirteen:
(a) "Closing Price" of any Company Common Stock on any day shall mean
the reported last sale price on such day or in case no sale takes place on such
day, the average of the reported closing bid and asked prices in each case on
the NYSE Consolidated Transactions Tape or, if the stock is not listed or
admitted to trading on the NYSE, on the principal national securities exchange
on which such stock is listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange, the average of the
closing bid and asked prices as furnished by any NYSE member firm, selected by
the Debenture Trustee for that purpose.
(b) "Trading Day" shall mean a day on which securities are traded on
the national securities exchange or quotation system used to determine the
Closing Price.
SECTION 2608. Dividend or Interest Reinvestment Plans.
Notwithstanding the foregoing provisions, the issuance of any shares of
Company Common Stock pursuant to any plan providing for the reinvestment of
dividends or interest payable on securities of the Company and the investment of
additional optional amounts in shares of Company Common Stock under any such
plan, and the issuance of any shares of Company Common Stock or options or
rights to purchase such shares pursuant to any employee benefit plan or program
of the Company or pursuant to any option, warrant, right or exercisable,
exchangeable or convertible security outstanding as of the date the Convertible
Debentures were first issued, shall not be deemed to constitute an issuance of
Company Common Stock or exercisable, exchangeable or convertible securities by
the Company to which any of the adjustment provisions described above applies.
There shall also be no adjustment of the conversion price in case of the
issuance of any stock (or securities convertible into or exchangeable for stock)
of the Company except as specifically described in this Article Thirteen.
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<PAGE> 88
SECTION 2609. Certain Additional Rights.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on its Company Common Stock referred to in Section 1303(c) or
1303(d) (including, without limitation, dividends or distributions referred to
in the last sentence of Section 1303(c)), the Holder of the Convertible
Debentures, upon the conversion thereof subsequent to 5:00 p.m. (New York City
time) on the date fixed for the determination of stockholders entitled to
receive such distribution and prior to the effectiveness of the conversion price
adjustment in respect of such distribution, shall also be entitled to receive
for each share of Company Common Stock into which the Convertible Debentures are
converted, the portion of the shares of Company Common Stock, rights, warrants,
evidences of indebtedness, shares of capital stock, cash and assets so
distributed applicable to one share of Company Common Stock; provided, however,
that, at the election of the Company (whose election shall be evidenced by a
resolution of the Board of Directors) with respect to all Holders so converting,
the Company may, in lieu of distributing to such Holder any portion of such
distribution not consisting of cash or securities of the Company, pay such
Holder an amount in cash equal to the fair market value thereof (as determined
in good faith by the Board of Directors, whose determination shall be conclusive
and described in a resolution of the Board of Directors). If any conversion of
Convertible Debentures described in the immediately preceding sentence occurs
prior to the payment date for a distribution to holders of Company Common Stock
which the Holder of Convertible Debentures so converted is entitled to receive
in accordance with the immediately preceding sentence, the Company may elect
(such election to be evidenced by a resolution of the Board of Directors) to
distribute to such Holder a due bill for the shares of Company Common Stock,
rights, warrants, evidences of indebtedness, shares of capital stock, cash or
assets to which such Holder is so entitled, provided, that such due bill (i)
meets any applicable requirements of the principal national securities exchange
or other market on which the Company Common Stock is then traded and (ii)
requires payment or delivery of such shares of Company Common Stock, rights,
warrants, evidences of indebtedness, shares of capital stock, cash or assets no
later than the date of payment or delivery thereof to holders of shares of
Company Common Stock receiving such distribution.
SECTION 2610. Restrictions on Company Common Stock Issuable Upon Conversion.
(a) Shares of Company Common Stock to be issued upon conversion of a
Convertible Debenture in respect of Restricted Preferred Securities shall bear
such restrictive legends as the Company may provide in accordance with
applicable law.
(b) If shares of Company Common Stock to be issued upon conversion of a
Convertible Debenture in respect of Restricted Preferred Securities are to be
registered in a name other than that of the Holder of such Preferred Security,
then the Person in whose name such shares of Company Common Stock are to be
registered must deliver to the Conversion Agent a certificate satisfactory to
the Company and signed by such Person, as to compliance with the restrictions on
transfer applicable to such Preferred Security. Neither the Trustee
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<PAGE> 89
nor any Conversion Agent or Registrar shall be required to register in a name
other than that of the Holder shares of Company Common Stock issued upon
conversion of any such Convertible Debenture in respect of such Preferred
Securities not so accompanied by a properly completed certificate.
SECTION 2611. Trustee Not Responsible for Determining Conversion Price or
Adjustments.
Neither the Trustee nor any Conversion Agent shall at any time be under
any duty or responsibility to any Holder of any Convertible Debenture to
determine whether any facts exist which may require any adjustment of the
conversion price, or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. Neither the
Trustee nor any Conversion Agent shall be accountable with respect to the
validity or value (or the kind of account) of any shares of Company Common Stock
or of any securities or property, which may at any time be issued or delivered
upon the conversion of any Convertible Debenture; and neither the Trustee nor
any Conversion Agent makes any representation with respect thereto. Neither the
Trustee nor any Conversion Agent shall be responsible for any failure of the
Company to make any cash payment or to issue, transfer or deliver any shares of
Company Common Stock or stock certificates or other securities or property upon
the surrender of any Convertible Debenture for the purpose of conversion, or,
except as expressly herein provided, to comply with any of the covenants of the
Company contained in Article Ten or this Article Thirteen.
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<PAGE> 90
ARTICLE XXVIII
Immunity of Incorporators, Stockholders,
Officers and Directors
SECTION 2801. No Recourse.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Convertible Debenture, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, past, present or future as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors as such, of
the Company or of any predecessor or successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Convertible Debentures or implied therefrom; and that any and
all such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Convertible Debentures or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issuance of such Convertible Debentures.
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<PAGE> 91
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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<PAGE> 92
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Central Parking Corporation
By:
--------------------------------------
Name: Monroe J. Carell, Jr.
Title: Chairman of the Board and Chief
Executive Officer
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<PAGE> 93
Chase Bank of Texas, National Association,
as Trustee
By:
---------------------------------------
Name:
Title:
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<PAGE> 94
EXHIBIT A
FORM OF CONVERTIBLE DEBENTURE
[FACE OF CONVERTIBLE DEBENTURE]
[Include if Convertible Debenture is in global form:
THIS CONVERTIBLE DEBENTURE IS A GLOBAL CERTIFICATE WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. THIS CONVERTIBLE DEBENTURE MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A CONVERTIBLE DEBENTURE
REGISTERED, AND NO TRANSFER OF THIS CONVERTIBLE DEBENTURE IN WHOLE OR
IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.]
[Include if Convertible Debenture is in global form and The Depository
Trust Company is the Depositary:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED SIGNATORY OF THE
DEPOSITORY TRUST COMPANY ("DTC") TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE CONVERTIBLE DEBENTURES EVIDENCED HEREBY AND THE COMMON STOCK
ISSUABLE UPON THEIR CONVERSION HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES
<PAGE> 95
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE
TRANSFEROR AND ANY PERSON ACTING ON BEHALF OF SUCH TRANSFEROR
REASONABLY BELIEVE IS A QUALIFIED INSTITUTIONAL BUYER ACQUIRING FOR ITS
OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION COMPLYING WITH RULE 144A UNDER THE SECURITIES ACT, (2) IN
AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN COMPLIANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES
AND OTHER JURISDICTIONS.
- 2 -
<PAGE> 96
Central Parking Corporation
5 1/4% Convertible Subordinated Debenture Due 2028
No._________ $___________
CUSIP No.
Central Parking Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Central Parking Finance Trust, or
registered assigns, the principal sum of Dollars ($ ) on
April 1, 2028 and to pay interest thereon from [ ] 1998 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, as the case may be, payable quarterly (subject to deferral as set
forth in the Indenture), in arrears, on January 1, April 1, July 1 and October 1
(each an "Interest Payment Date") of each year, commencing July 1, 1998, until
the principal thereof is paid or made available for payment, and they shall be
paid to the Person in whose name the Convertible Debenture is registered at 5:00
p.m. (New York City time) on the regular record date for such interest
installment, which shall be the March 15, June 15, September 15 and December 15
next preceding such Interest Payment Date (the "Regular Record Date").
Reference is hereby made to the further provisions of this Convertible
Debenture set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Convertible Debenture shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
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<PAGE> 97
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
Central Parking Corporation
By:
--------------------------------
Name: Monroe J. Carell, Jr.
Title: Chief Executive Officer
and Chairman of the Board
[Seal]
Attest:
- - ----------------------
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<PAGE> 98
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Convertible Debentures referred to in the
within-mentioned Indenture.
Dated: Chase Bank of Texas, National Association,
as Trustee
By:
----------------------------------------
Authorized Signatory
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<PAGE> 99
[FORM OF REVERSE OF CONVERTIBLE DEBENTURE]
This Convertible Debenture is one of a duly authorized issue of
securities of the Company designated as its 5 1/4% Convertible Subordinated
Debenture Due 2028 (herein called the "Convertible Debentures"), in aggregate
principal amount of $103,092,775 (or up to $113,402,050 if the over-allotment
option is exercised by the Trust in accordance with the terms and provisions of
the Purchase Agreement), issued and to be issued under an Indenture, dated as of
March 18, 1998 (herein called the "Indenture"), between the Company and Chase
Bank of Texas, National Association, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Convertible
Debentures, and of the terms upon which the Convertible Debentures are, and are
to be, authenticated and delivered. The terms of the Convertible Debentures
include those stated in the Indenture and those made part of the Indenture by
the Trust Indenture Act of 1939 (15 U.S.C. ss. 77aaa-77bbbb) ("TIA") as in
effect on the date of the Indenture. The Convertible Debentures are subject to,
and qualified by, all such terms, certain of which are summarized hereon, and
holders are referred to the Indenture and the TIA for a statement of such terms.
No reference herein to the Indenture and no provision of this Convertible
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Convertible Debenture at the times, place and rate, and in the
coin or currency, herein prescribed or to convert this Convertible Debenture as
provided in the Indenture. All terms used in this Convertible Debenture which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture. The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture.
(1) Interest. The Convertible Debentures shall bear interest at the
rate of 5 1/4% per annum, from March 13, 1998 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, as the case
may be, payable quarterly (subject to deferral as set forth herein), in arrears,
on January 1, April 1, July 1 and October 1 (each an "Interest Payment Date") of
each year, commencing July 1, 1998, until the principal thereof is paid or made
available for payment, and they shall be paid to the Person in whose name the
Convertible Debenture is registered at 5:00 p.m. (New York City time) on the
regular record date for such interest installment, which shall be the March 15,
June 15, September 15 and December 15 next preceding such Interest Payment Date
(the "Regular Record Date"). Interest will compound quarterly and will accrue at
the rate of 5 1/4% per annum on any interest installment in arrears for more
than one quarter or during an extension of an interest payment period as set
forth below.
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<PAGE> 100
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full quarterly period for which interest in computed, will be computed on the
basis of the actual number of days elapsed per 90-day quarter. In the event that
any date on which interest is payable on the Convertible Debentures is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
If at any time while the Property Trustee is the Holder of any
Convertible Debentures, the Trust or the Property Trustee is required to pay any
taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States, or any other taxing
authority, then, in any such case, the Company shall pay as additional interest
("Additional Interest") on the Convertible Debentures held by the Property
Trustee, such amounts as shall be required so that the net amounts received and
retained by the Trust and the Property Trustee after paying any such taxes,
duties, assessments or other governmental charges will be not less than the
amounts the Trust and the Property Trustee would have received had no such
taxes, duties, assessments or other governmental charges been imposed.
The principal of and interest on the Convertible Debentures shall be
payable [insert, if global security is issued - to the Depositary Trust Company
or its nominee] [insert, if securities in definitive form are issued - at the
corporate office of the Indenture Trustee in the City of New York or at the
office or agency of the Paying Agent in the United States maintained for such
purpose] in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company payment of interest may be made by
(i) check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register, or (ii) by wire transfer to an account
maintained by the Person entitled thereto as specified in the Securities
Register, provided that proper transfer instructions have been received by the
Regular Record Date.
(2) Option to Extend Interest Payment Period. The Company shall have
the right at any time during the term of the Convertible Debentures to defer
interest payments (including Additional Payments) from time to time by extending
the interest payment period for successive periods (each, an "Extension Period")
not exceeding 20 consecutive quarters for each such period; provided, no
Extension Period may extend
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<PAGE> 101
beyond the maturity date of the Convertible Debentures. At the end of each
Extension Period, the Company shall pay all interest then accrued and unpaid
(including Additional Interest) together with interest thereon compounded
quarterly at the rate specified for the Convertible Debentures to the extent
permitted by applicable law ("Compounded Interest"); provided, that during any
Extension Period, the Company shall (i) not declare or pay dividends on, or make
a distribution with respect to, or redeem or purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock (other than (A)
purchases or acquisitions of shares of Company Common Stock in connection with
the satisfaction by the Company of its obligations under any employee benefit
plans or the satisfaction by the Company of its obligations pursuant to any
contract or security requiring the Company to purchase shares of Company Common
Stock, (B) as a result of a reclassification of the Company's capital stock or
the exchange or conversion of one class or series of the Company's capital stock
for another class or series of the Company's capital stock or (C) the purchase
of fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged) or make any guarantee payments with respect to the
foregoing, (ii) not make any payment of interest, principal or premium, if any,
on or repay, repurchase or redeem any debt securities (including guarantees)
issued by the Company that rank pari passu with or junior to the Convertible
Debentures (except by conversion into or exchange for shares of its capital
stock) and (iii) not make any guarantee payments with respect to the foregoing
(other than pursuant to the Guarantee). Prior to the termination of any such
Extension Period, the Company may further extend such Extension Period;
provided, that such Extension Period, together with all such previous and
further extensions thereof, may not exceed 20 consecutive quarters or extend
beyond the maturity date of the Convertible Debentures. Upon the termination of
any Extension Period and the payment of all amounts then due, the Company may
commence a new Extension Period, subject to the above requirements. No interest
during an Extension Period shall be due and payable. Notwithstanding anything to
the contrary, the Company shall not have the right at any time to defer any
Additional Interest, including by extending the interest payment period.
If the Property Trustee is the sole Holder of the Convertible
Debentures at the time the Company selects an Extension Period, the Company
shall give written notice to the Administrative Trustees, the Property Trustee
and the Trustee of its selection of such Extension Period at least one Business
Day prior to the earlier of (i) the date the distributions on the Preferred
Securities are payable or (ii) if the Preferred Securities are listed on the New
York Stock Exchange or other stock exchange or quotation system, the date the
Trust is required to give notice to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Preferred
Securities of the record date or the date such distributions are payable, but in
any event not less than 10 Business Days prior to such record date.
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<PAGE> 102
If the Property Trustee is not the sole holder of the Convertible
Debentures at the time the Company selects an Extension Period, the Company
shall give the Holders of the Convertible Debentures and the Trustee written
notice of its selection of such Extension Period at least 10 Business Days prior
to the earlier of (i) the next succeeding Interest Payment Date or (ii) if the
Preferred Securities are listed on the New York Stock Exchange or other stock
exchange or quotation system, the date the Company is required to give notice to
the New York Stock Exchange or other applicable self-regulatory organization or
to holders of the Convertible Debentures on the record or payment date of such
related interest payment, but in any event not less than two Business Days prior
to such record date.
The quarter in which any notice is given pursuant to paragraphs second
and third of this Section 2 shall be counted as one of the 20 quarters permitted
in the maximum Extension Period permitted under paragraph one of this Section 2.
(3) Paying Agent and Security Registrar. The Trustee will act as Paying
Agent, Security Registrar and Conversion Agent. The Company may change any
Paying Agent, Security Registrar, co-registrar or Conversion Agent without prior
notice. The Company or any of its Affiliates may act in any such capacity.
(4) Redemption. The Company shall have the right to redeem the
Convertible Debentures, in whole or in part, at any time or from time to time
after April 3, 2001 upon not less than 30 nor more than 60 days' notice, at the
optional redemption prices (expressed as a percentage of the principal amount of
Convertible Debentures to be redeemed) shown below, plus any accrued and unpaid
interest (including Additional Payments, if any) to the Redemption Date, if
redeemed during the 12-month period beginning April 3:
<TABLE>
<CAPTION>
Percentage of
Principal
Year Amount
---- -------------
<S> <C>
2001 .................................. 103.00%
2002 .................................. 102.25%
2003 .................................. 101.50%
2004 .................................. 100.75%
2005 and thereafter ................... 100.00%
</TABLE>
If the Company has deferred interest payments, all unpaid interest must
be paid in cash prior to redemption. Any redemption pursuant to this Section
1101 shall be made pursuant to the provisions of Sections 1103 through 1108
hereof.
- 9 -
<PAGE> 103
The Convertible Debentures are subject to redemption in whole (but not
in part), at any time within 90 days, if a Tax Event (as defined in the Trust
Agreement) shall occur and be continuing, at a redemption price equal to 100% of
the principal amount thereof plus accrued but unpaid interest (including
Additional Payments, if any) to the Redemption Date. On and after the Redemption
Date, interest ceases to accrue on the Convertible Debentures or portions of
them called for redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Convertible Debentures to be redeemed, at such Holder's
address appearing in the Security Register. The Convertible Debentures in
denominations larger than $25 may be redeemed in part but only in integral
multiples of $25. In the event of a redemption of less than all of the
Convertible Debentures, the Convertible Debentures will be chosen for redemption
by the Trustee in accordance with the Indenture.
If this Convertible Debenture is redeemed subsequent to a Regular
Record Date with respect to any Interest Payment Date specified above and on or
prior to such Interest Payment Date, then any accrued interest will be paid to
the person in whose name this Convertible Debenture is registered at the close
of business on such record date.
(5) Sinking Fund. The Convertible Debentures are not entitled to the
benefit of any sinking fund.
(6) Subordination. The payment of the principal of, premium, if any,
and interest (including Additional Payments, if any) on all Convertible
Debentures is subordinated and junior in right of payment to the prior payment
in full of all existing and future Senior Indebtedness, whether outstanding at
the date of this Indenture or thereafter incurred. Each holder, by accepting a
Convertible Debenture, agrees to such subordination and authorizes and directs
the Trustee on its behalf to take such action as may be necessary or appropriate
to effectuate the subordination so provided and appoints the Trustee as its
attorney-in-fact for such purpose.
"Senior Indebtedness" means in respect of the Company (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of such
obligor for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by such obligor, (ii) all
capital lease obligations of such obligor, (iii) all obligations of such obligor
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of such obligor and all obligations of such obligor under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business), (iv) all obligations of such obligor for the
reimbursement of any letter
- 10 -
<PAGE> 104
of credit, banker's acceptance, security purchase facility or similar credit
transaction, (v) all obligations of the type referred to in clauses (i) through
(iv) above of other Persons for the payment of which such obligor is responsible
or liable as obligor, guarantor or otherwise, and (vi) all obligations of the
type referred to in clauses (i) through (v) above of other Persons secured by
any lien on any property or asset of such obligor (whether or not such
obligation is assumed by such obligor), except for (1) any such indebtedness
that is by its terms subordinated to or pari passu with the Convertible
Debentures and (2) any indebtedness between or among such obligor or its
affiliates, including all other debt securities and guarantees in respect of
those debt securities issued to any other trust, or a trustee of such trust,
partnership, or other entity affiliated with the Company that is, directly or
indirectly, a financing vehicle of the Company (a "Financing Entity") in
connection with the issuance by such Financing Entity of preferred securities or
other securities which rank pari passu with, or junior to, the Preferred
Convertible Debentures. Such Senior Indebtedness shall continue to be Senior
Indebtedness and entitled to the benefits of the subordination provisions
irrespective of any amendment, modification or waiver of any term of such Senior
Indebtedness.
(7) Conversion. The Holder of any Convertible Debenture has the right,
exercisable at any time on or before 5:00 p.m. (New York City time) on the
Business Day immediately preceding the date of repayment of such Convertible
Debentures, whether at maturity or upon redemption (either at the option of the
Company or pursuant to a Tax Event), to convert the principal amount thereof (or
any portion thereof that is an integral multiple of $25) into fully paid and
nonassessable shares of Company Common Stock of the Company at an initial
conversion rate of 0.4545 shares of Company Common Stock for each $25 in
aggregate principal amount of Convertible Debentures (equal to a conversion
price of $55.00 per share of Company Common Stock), subject to adjustment under
certain circumstances as set forth in Section 1303. The number of shares
issuable upon conversion of a Convertible Debenture is determined by dividing
the principal amount of the Convertible Debenture converted by the conversion
price in effect on the Conversion Date. No fractional shares will be issued upon
conversion but a cash adjustment will be made for any fractional interest. The
outstanding principal amount of any Convertible Debenture shall be reduced by
the portion of the principal amount thereof converted into shares of Company
Common Stock.
To convert a Convertible Debenture, a Holder must (i) complete and sign
a conversion notice substantially in the form attached hereto, (ii) surrender
the Convertible Debenture to a Conversion Agent, (iii) furnish appropriate
endorsements or transfer documents if required by the Security Registrar or
Conversion Agent and (iv) pay any transfer or similar tax, if required. If a
Notice of Conversion is delivered on or after the Regular Record Date and prior
to the subsequent Interest Payment Date, the Holder will be
- 11 -
<PAGE> 105
entitled to receive the interest payable on the subsequent Interest Payment Date
on the portion of Convertible Debentures to be converted notwithstanding the
conversion thereof prior to such Interest Payment Date. Except as otherwise
provided in the immediately preceding sentence, in the case of any Convertible
Debenture which is converted, interest whose Stated Maturity is after the date
of conversion of such Convertible Debenture shall not be payable, and the
Company shall not make nor be required to make any other payment, adjustment or
allowance with respect to accrued but unpaid interest (including Additional
Payments, if any) on the Convertible Debentures being converted, which shall be
deemed to be paid in full. If any Convertible Debenture called for redemption is
converted, any money deposited with the Trustee or with any Paying Agent or so
segregated and held in trust for the redemption of such Convertible Debenture
shall (subject to any right of the Holder of such Convertible Debenture or any
Predecessor Security to receive interest as provided in the last paragraph of
Section 307 and this paragraph) be paid to the Company upon Company Request or,
if then held by the Company, shall be discharged from such trust.
(8) Registration Rights. The holders of the Preferred Securities, the
Convertible Debentures issuable in respect of the Preferred Securities, the
shares of Company Common Stock issuable upon conversion of the Preferred
Securities and the Convertible Debentures, and the Guarantee (collectively, the
"Registrable Securities") are entitled to the benefits of a Registration Rights
Agreement, dated as of March 18, 1998, among Central Parking Finance Trust, the
Company and the Initial Purchasers (the "Registration Rights Agreement").
Pursuant to the Registration Rights Agreement, the Company has agreed for the
benefit of the holders of Registrable Securities that (i) it will, at its cost,
use its best efforts within 60 days after the date of original issuance of the
Registrable Securities, to file a shelf registration statement (the "Shelf
Registration Statement") with the Commission with respect to the resales of the
Registrable Securities, (ii) it will use its best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission within 150
days after the date of issuance of the Registrable Securities and (iii) it will
use its best efforts to maintain such Shelf Registration Statement continuously
effective under the Securities Act until two years after the date of original
issuance of the Preferred Securities (or such earlier date as the holders of
Registrable Securities are able to sell all Registrable Securities immediately
without restriction, whether pursuant to Rule 144(k) under the Securities Act or
any successor rule thereto or otherwise) (the "Effectiveness Period"). The Trust
and the Company will be permitted to suspend the use of the prospectus (which is
a part of the Shelf Registration Statement) in connection with sales of
Registrable Securities by holders during certain periods of time under certain
circumstances relating to pending corporate developments relating to the Company
and public filings with the Commission and similar events.
- 12 -
<PAGE> 106
If (i) on or prior to 60 days following the date of original issuance
of the Registrable Securities, a Shelf Registration Statement has not
been filed with the Commission, (ii) on or prior to the 150th day
following the original issuance of the Registrable Securities, such
Shelf Registration Statement has not been declared effective, or (iii)
the Company or the Trust has not filed an amendment as set forth in
Sections 2(b)(ii) and 3(j) of the Registration Rights Agreement (each
such event a "Registration Default"), additional interest ("Liquidated
Damages") will accrue on the Convertible Debentures and, accordingly,
additional distributions will accrue on the Preferred Securities, from
and including the day following such Registration Default until such
time as such Shelf Registration Statement is filed or such Shelf
Registration Statement is declared effective, as the case may be.
Liquidated Damages will be paid quarterly in arrears (subject to the
Company's ability to defer payment of Liquidated Damages during any
Extension Period), with the first quarterly payment due on the first
Interest Payment Date following the date on which such Liquidated
Damages begin to accrue, and will accrue at a rate per annum equal to
an additional 0.25% of the principal amount or liquidation amount, as
applicable, to and including the 60th day following such Registration
Default and 0.50% thereof from and after the 61st day following such
Registration Default. In the event that during the Effectiveness Period
the Shelf Registration Statement ceases to be effective for more than
90 consecutive days or any 120 days, whether or not consecutive, during
any 12-month period then the interest rate borne by the Debentures and
the distribution rate borne by the Preferred Securities will each
increase by an additional 0.50% per annum from such 91st or 121st day,
as applicable, of the applicable 12-month period such Shelf
Registration Statement ceases to be effective until the earlier of such
time as (i) the Shelf Registration Statement again becomes effective or
(ii) the Effectiveness Period expires.
(9) Registration, Transfer, Exchange and Denominations. As provided in
the Indenture and subject to certain limitations therein set forth, the transfer
of this Convertible Debenture is registrable in the Security Register, upon
surrender of this Convertible Debenture for registration of transfer at the
office or agency of the Company in New York, New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Convertible
Debentures, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
- 13 -
<PAGE> 107
The Convertible Debentures are issuable only in registered form without
coupons in denominations of $25 and integral multiples thereof. No service
charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. Prior to due presentment of
this Convertible Debenture for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Convertible Debenture is registered as the owner hereof for all
purposes, whether or not this Convertible Debenture be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary. In the event of redemption or conversion of this Convertible Debenture
in part only, a new Convertible Debenture or Convertible Debentures for the
unredeemed or unconverted portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
(10) Persons Deemed Owners. Except as provided in the Indenture, the
registered Holder of a Convertible Debenture may be treated as its owner for all
purposes.
(11) Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent shall pay the
money back to the Company at its written request. After that, Holders of
Convertible Debentures entitled to the money must look to the Company for
payment unless an abandoned property law designates another Person and all
liability of the Trustee and such Paying Agent with respect to such money shall
cease.
(12) Defaults and Remedies. The Convertible Debentures shall have the
Events of Default as set forth in Section 501 of the Indenture. Subject to
certain limitations in the Indenture, if an Event of Default occurs and is
continuing, the Trustee by notice to the Company or the Holders of at least 25%
in aggregate principal amount of the then outstanding Convertible Debentures by
notice to the Company and the Trustee may declare all the Convertible Debentures
to be due and payable immediately.
The Holders of a majority in principal amount of the Convertible
Debentures then outstanding by written notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of the acceleration. Holders may not enforce the Indenture or the
Convertible Debentures except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Convertible Debentures issued under the Indenture may direct the Trustee in its
exercise of any trust or power. The Convertible Debentures are unsecured general
obligations of the
- 14 -
<PAGE> 108
Company. The Company must furnish annually compliance certificates to the
Trustee. The above description of Events of Default and remedies is qualified by
reference to, and subject in its entirety by, the more complete description
thereof contained in the Indenture.
(13) Amendments, Supplements and Waivers. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Convertible Debentures under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Convertible Debentures at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Convertible
Debentures at the time Outstanding, on behalf of the Holders of all the
Convertible Debentures, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Convertible
Debenture shall be conclusive and binding upon such Holder and upon all future
Holders of this Convertible Debenture and of any Convertible Debenture issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Convertible Debenture.
(14) Trustee Dealings with the Company. The Trustee, in its individual
or any other capacity may become the owner or pledgee of the Convertible
Debentures and may otherwise deal with the Company or an Affiliate with the same
rights it would have, as if it were not Trustee, subject to certain limitations
provided for in the Indenture and in the TIA. Any Agent may do the same with
like rights.
(15) No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Convertible Debentures or the Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of the Convertible Debentures by accepting a Convertible
Debenture waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Convertible Debentures.
(16) Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THE INDENTURE AND THE CONVERTIBLE DEBENTURES WITHOUT REGARD TO CONFLICT
OF LAW PROVISIONS THEREOF.
(17) Authentication. The Convertible Debentures shall not be valid
until authenticated by the manual signature of an authorized officer of the
Trustee or an authenticating agent.
- 15 -
<PAGE> 109
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Convertible
Debenture to:
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
agent to transfer this Convertible Debenture on the books of the Company. The
agent may substitute another to act for him or her.
Date: _______________________
- - ------------------------------------------
(Sign exactly as your name appears on the
other side of this Convertible Debenture)
Signature Guarantee:* _______________________
- - ----------------
* (Signature must be guaranteed by an "eligible guarantor institution"
that is, a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Convertible Debentures
Transfer Agents Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the
Convertible Debentures Exchange Act of 1934, as amended.)
- 16 -
<PAGE> 110
[Include the following if the Convertible Debenture bears a Restricted
Securities Legend --
In connection with any transfer of any of the Convertible Debentures evidenced
by this certificate, the undersigned confirms that such Convertible Debentures
are being:
CHECK ONE BOX BELOW
(1) [ ] exchanged for the undersigned's own account without transfer;
or
(2) [ ] transferred pursuant to and in compliance with Regulation S
under the Securities Act of 1933 (as amended) (the "Securities
Act"); or
(3) [ ] transferred pursuant to and in compliance with Rule 144A under
the Securities Act; or
(4) [ ] transferred pursuant to another available exemption from the
registration requirements of the Securities Act; or
(5) [ ] transferred pursuant to an effective Registration Statement
under the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Convertible Debentures evidenced by this certificate in the name of any
person other than the registered Holder thereof; provided, however, that if box
(3) or (4) is checked, the Trustee may require, prior to registering any such
transfer of the Convertible Debentures such legal opinions, certifications and
other information as the Company has reasonably requested in writing and
directed the Trustee to require confirmation that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, such as the exemption provided
by Rule 144 under such Act; provided, further, that after the date that a Shelf
Registration Statement under the Securities Act has been filed and so long as
such Shelf Registration Statement continues to be effective, the Trustee may
only permit transfers for which box (5) has been checked.
----------------------
Signature
Signature Guarantee:*
- - ------------------------
Stock Exchange Medallion Program (SEMP); or (iv) in such other
guarantee programs acceptable to the Trustee.
* Signature must be guaranteed by an institution which is a member of one
of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee programs
acceptable to the Trustee.
- 17 -
<PAGE> 111
- - ---------------------------------- ----------------------------------
Signature must be guaranteed Signature
- - --------------------------------------------------------------------------------
[TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Convertible Debenture for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
---------------------------- ----------------------------------
NOTICE: To be executed by an executive
officer]
- 18 -
<PAGE> 112
NOTICE OF CONVERSION
To: Chase Bank of Texas, National Association
The undersigned owner of this Convertible Debenture hereby irrevocably
exercises the option to convert this Convertible Debenture, or the portion below
designated, into common stock of Central Parking Corporation (the "Company")
(the "Company Common Stock") in accordance with the terms of the Indenture,
between the Company and Chase Bank of Texas, National Association, as Trustee,
and directs that the shares issuable and deliverable upon conversion, together
with any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in the
assignment below. If shares are to be issued in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
Any Holder, upon the exercise of its conversion rights in accordance
with the terms of the Indenture and the Convertible Debenture, agrees to be
bound by the terms of the Registration Rights Agreement relating to the Company
Common Stock issuable upon conversion of the Convertible Debenture.
Date: ________________
Number of Convertible Debentures to be converted ($25 or integral multiples
thereof): ___________________
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Company Common Stock are to be
issued, along with the address or addresses of such person or persons.
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
- - ------------------------------------------
(Sign exactly as your name appears on the
the Convertible Debenture) (for conversion only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number.
- - ------------------------------------------
- - ------------------------------------------
- - ------------------------------------------
Signature Guarantee:*_____________________
* (Signature must be guaranteed by an "eligible guarantor institution"
that is, a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Convertible Debentures
Transfer Agents Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the Registrar in addition
to, or in substitution for, STAMP, all in accordance with the
Convertible Debentures Exchange Act of 1934, as amended.)
- 19 -
<PAGE> 1
====================================
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
CENTRAL PARKING FINANCE TRUST
Dated as of March 18, 1998
====================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions......................................................... 2
ARTICLE II
TRUST INDENTURE ACT; REPORTS, NOTICES AND COMPLIANCE
CERTIFICATES
SECTION 2.1 Trust Indenture Act; Application.................................... 15
SECTION 2.2 Lists of Holders of Trust Securities................................ 15
SECTION 2.3 Reports by the Property Trustee..................................... 16
SECTION 2.4 Periodic Reports to Property Trustee................................ 16
SECTION 2.5 Evidence of Compliance with Conditions
Precedent........................................................... 17
SECTION 2.6 Events of Default; Waiver........................................... 17
SECTION 2.7 Event of Default; Notice............................................ 19
ARTICLE III
ORGANIZATION OF TRUST
SECTION 3.1 Name................................................................ 20
SECTION 3.2 Office.............................................................. 20
SECTION 3.3 Purpose............................................................. 21
SECTION 3.4 Prohibition of Actions by the Trust and the
Issuer Trustees..................................................... 21
SECTION 3.5 General Authority of the Issuer Trustees............................ 22
SECTION 3.6 Title to Property of the Trust...................................... 22
SECTION 3.7 Not Responsible for Recitals or Issuance of
Trust Securities.................................................... 22
SECTION 3.8 Duration of Trust................................................... 23
SECTION 3.9 Mergers............................................................. 23
SECTION 3.10 Termination of Trust....................................... 25
ARTICLE IV
Depositor
SECTION 4.1 Depositor's Purchase of Common Securities........................... 26
SECTION 4.2 Responsibilities of the Depositor................................... 26
ARTICLE V
ISSUER TRUSTEES
SECTION 5.1 Number of Issuer Trustees........................................... 27
SECTION 5.2 Delaware Trustee; Eligibility....................................... 28
SECTION 5.3 Property Trustee; Eligibility....................................... 28
SECTION 5.4 Qualifications of Administrative Trustees and
Delaware Trustee Generally.......................................... 29
SECTION 5.5 Initial Trustees.................................................... 30
SECTION 5.6 Appointment, Removal and Resignation of
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
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<S> <C> <C>
Trustees.......................................................... 30
SECTION 5.7 Vacancies among Trustees.......................................... 32
SECTION 5.8 Merger, Conversion, Consolidation
or Succession to Business of an
Issuer Trustee.............................. 33
SECTION 5.9 Authority, Powers and Duties of the
Administrative Trustees........................................... 33
SECTION 5.10 Delegation of Powers and Duties of the
Administrative Trustees.................................. 37
SECTION 5.11 Powers and Duties of the Property Trustee................ 38
SECTION 5.12 Certain Duties and Responsibilities of the
Property Trustee......................................... 40
SECTION 5.13 Certain Rights of Property Trustee....................... 42
SECTION 5.14 Delaware Trustee......................................... 45
SECTION 5.15 Meetings................................................. 46
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions..................................................... 47
ARTICLE VII
THE TRUST SECURITIES
SECTION 7.1 Title and Terms................................................... 47
SECTION 7.2 General Provisions Regarding the Trust
Securities........................................................ 48
SECTION 7.3 General Form of Certificates...................................... 48
SECTION 7.4 Form of Preferred Securities Certificates;
Global Certificates............................................... 49
SECTION 7.5 Execution and Dating of Certificates.............................. 50
SECTION 7.6 Global Securities; Non-Global Securities;
Common Securities Certificate..................................... 51
SECTION 7.7 Definitive Preferred Security Certificates........................ 53
SECTION 7.8 Restrictive Legends............................................... 53
SECTION 7.9 Temporary Certificates............................................ 54
SECTION 7.10 Registrar, Paying Agent and Conversion Agent...................... 54
SECTION 7.11 Paying Agent to Hold Money in Trust............................... 55
SECTION 7.12 Outstanding Preferred Securities.................................. 56
SECTION 7.13 Preferred Securities in Treasury.................................. 56
SECTION 7.14 Notices to Clearing Agency........................................ 56
SECTION 7.15 Appointment of Successor Clearing Agency.......................... 57
SECTION 7.16 Deemed Security Holders........................................... 57
ARTICLE VIII
TRANSFERS, EXCHANGES AND CANCELLATIONS
OF TRUST SECURITIES
SECTION 8.1 General........................................................... 57
</TABLE>
ii
<PAGE> 4
<TABLE>
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<S> <C> <C>
SECTION 8.2 Certain Transfers and Exchanges.................................. 59
SECTION 8.3 Mutilated, Destroyed, Lost or Stolen
Certificates; Replacement Securities............................. 65
SECTION 8.4 Cancellation of Preferred Security
Certificates..................................................... 65
ARTICLE IX
LIMITATION OF LIABILITY OF
HOLDERS OF TRUST SECURITIES, TRUSTEES AND OTHERS
SECTION 9.1 Liability........................................................ 66
SECTION 9.2 Exculpation...................................................... 66
SECTION 9.3 Fiduciary Duty................................................... 67
SECTION 9.4 Indemnification.................................................. 68
SECTION 9.5 Outside Businesses............................................... 72
ARTICLE X
ACCOUNTING
SECTION 10.1 Fiscal Year...................................................... 73
SECTION 10.2 Certain Accounting Matters....................................... 73
SECTION 10.3 Banking.......................................................... 74
SECTION 10.4 Withholding...................................................... 75
ARTICLE XI
AMENDMENTS AND MEETINGS
SECTION 11.1 Amendments....................................................... 75
SECTION 11.2 Meetings of the Holders of Trust Securities;
Action by Written Consent........................................ 77
ARTICLE XII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 12.1 Representations and Warranties of Property
Trustee.......................................................... 80
SECTION 12.2 Representations and Warranties of Delaware
Trustee.......................................................... 81
ARTICLE XIII
CONVERSION
SECTION 13.1 Conversion Rights................................................ 82
SECTION 13.2 Conversion Procedures............................................ 82
SECTION 13.3 Conversion Price Adjustments..................................... 86
SECTION 13.4 Fundamental Change............................................... 92
SECTION 13.5 Notice of Adjustments of Conversion Price........................ 94
SECTION 13.6 Prior Notice of Certain Events................................... 95
SECTION 13.7 Certain Defined Terms............................................ 96
SECTION 13.8 Certain Additional Rights........................................ 96
SECTION 13.9 Restrictions on Company Common Stock Issuable
</TABLE>
iii
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C>
Upon Conversion................................................ 97
SECTION 13.10 Trustee Not Responsible for Determining
Conversion Price or Adjustments................................ 98
ARTICLE XIV MISCELLANEOUS
SECTION 14.1 Notices........................................................ 99
SECTION 14.2 Governing Law.................................................. 100
SECTION 14.3 Intention of the Parties....................................... 100
SECTION 14.4 Headings....................................................... 100
SECTION 14.5 Successors and Assigns......................................... 100
SECTION 14.6 Partial Enforceability......................................... 101
SECTION 14.7 Counterparts................................................... 101
ARTICLE XV
REGISTRATION RIGHTS
SECTION 15.1 Registration Rights............................................ 101
</TABLE>
ANNEX I Terms of 5 1/4% Convertible
Preferred Securities and 5 1/4%
Convertible Common Securities
Exhibit A-1 Form of Preferred Security
Exhibit A-2 Form of Common Security
Exhibit B Form of Regulation S Certificate
Exhibit C Form of Restricted Securities
Certificate
Exhibit D Form of Unrestricted Securities
Certificate
Exhibit E Form of Certificate Depository
Agreement
iv
<PAGE> 6
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Trust Agreement
- - ------------------- ---------------
<S> <C>
310(a)................................................... 5.3(a)
310(b)................................................... 5.3(c)
311(c)................................................... Inapplicable
310 - 317................................................ 2.1(c)
311(a)................................................... 2.2(b)
311(b)................................................... 2.2(b)
312(b)................................................... 2.2(b)
313...................................................... 2.3
314(a)................................................... 2.4,
......................................................... 5.9(d)(xiii)
314(b)................................................... Inapplicable
314(c)................................................... 2.5
314(d)................................................... Inapplicable
314(f)................................................... Inapplicable
315(a)................................................... 5.12(b)-(e)
315(c)................................................... 5.12(a)
315(d)................................................... 5.12(a)
316(a)................................................... 2.6, Annex I
316(c)................................................... 5.9(d)(v)
</TABLE>
- - ---------------
* This Cross-Reference Table does not constitute part of the Trust
Agreement and shall not affect the interpretation of any of its terms
or provisions.
v
<PAGE> 7
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
CENTRAL PARKING FINANCE TRUST
MARCH 18, 1998
AMENDED AND RESTATED DECLARATION OF TRUST ("Trust Agreement")
dated and effective as of March 18, 1998, by the undersigned trustees (together
with all other Persons from time to time duly appointed and serving as trustees
in accordance with the provisions of this Trust Agreement, the "Trustees"),
Central Parking Corporation, a Tennessee corporation, as trust sponsor (the
"Depositor"), and by the holders, from time to time, of undivided beneficial
interests in the Trust issued pursuant to this Trust Agreement;
WHEREAS, certain of the Trustees and the Depositor established
Central Parking Finance Trust (the "Trust"), a trust under the Business Trust
Act (as defined herein) pursuant to a Declaration of Trust dated as of February
18, 1998 (the "Declaration"), and a Certificate of Trust filed with the
Secretary of State of the State of Delaware on February 18, 1998, for the sole
purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Convertible Debentures (as defined herein) of the Debenture
Issuer (as defined herein);
WHEREAS, as of the date hereof, no interests in the
Trust have been issued; and
WHEREAS, all of the Trustees and the Depositor, by this Trust
Agreement, amend and restate each and every term and provision of the
Declaration;
NOW, THEREFORE, it being the intention of the parties hereto
to continue the Trust as a business trust under the Business Trust Act and that
this Trust Agreement constitutes the governing instrument of such business
trust, the Trustees declare that all assets contributed to the Trust will be
held in trust for the benefit of the holders, from time to time, of the
securities representing undivided beneficial interests in the assets of the
Trust issued hereunder, subject to the provisions of this Trust Agreement.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
<PAGE> 8
Unless the context otherwise requires:
(a) Capitalized terms used in this Trust Agreement but not
defined in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere in this Trust Agreement has the
same meaning throughout;
(c) all references to "the Trust Agreement" or "this Trust
Agreement" are to this Trust Agreement as modified, supplemented or amended from
time to time;
(d) all references in this Trust Agreement to Articles and
Sections and Annexes and Exhibits are to Articles and Sections and Annexes and
Exhibits to this Trust Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Trust Agreement unless otherwise defined in this Trust
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice
versa; and
(g) a reference to the masculine includes the feminine and
vice versa.
"Additional Interest" means if the Trust is required to pay
any taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States or any other taxing
authority, such amounts as shall be required so that the net amounts received
and retained by the Trust after paying such taxes, duties, assessments and
governmental charges will not be less than the amounts the Trust would have
received had no such taxes, duties, assessments or governmental charges been
imposed.
"Administrative Trustee" means any Trustee other than the
Property Trustee and the Delaware Trustee.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Agent" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
"Applicable Price" means (i) in the case of a Non-Stock
Fundamental Change in which the holders of the Company Common Stock receive only
cash, the amount of cash received by the holder of one share of Company Common
Stock and (ii) in the event of any other Non-Stock Fundamental Change or any
Common Stock Fundamental Change, the average of the Closing
2
<PAGE> 9
Prices for the Company Common Stock during the ten trading days prior to the
record date for the determination of the holders of Company Common Stock
entitled to receive such securities, cash, or other property in connection with
such Non-Stock Fundamental Change or Common Stock Fundamental Change or, if
there is no such record date, the date upon which the holders of the Company
Common Stock shall have the right to receive such securities, cash, or other
property (such record date or distribution date being hereinafter referred to as
the "Entitlement Date"), in each case as adjusted in good faith by the Company
to appropriately reflect any of the events referred to in Section 13.3.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Certificate or beneficial interest therein, the
rules and procedures of Euroclear and Cedel, and of the Clearing Agency for such
security, in each case to the extent applicable to such transaction and as in
effect from time to time.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 8.2.
"Business Day" means any day other than a day on which banking
institutions in the City of New York, in Wilmington, Delaware or in Dallas,
Texas are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code ss.3801 et seq., as it may be amended from time to
time, or any successor legislation.
"Certificate" means a certificate in global or definitive form
representing a Common Security or a Preferred Security.
"Certificate Depository Agreement" means the agreement among
the Trust, the Depositor and The Depositary Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates,
3
<PAGE> 10
substantially in the form attached as Exhibit E, as the same may be amended and
supplemented from time to time.
"Certificated Preferred Security" has the meaning set forth in
Section 7.4(a).
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Preferred Securities and in whose name or in the name of a
nominee of that organization shall be registered a Global Certificate and which
shall undertake to effect book entry transfers and pledges of the Preferred
Securities.
"Closing Date" means March 18, 1998.
"Closing Price" has the meaning specified in Section 13.7.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning specified in Section 7.1.
"Common Securities Guarantee" means the guarantee agreement
dated as of March 18, 1998, of the Depositor in respect of the Common
Securities.
"Common Security Certificate" means a definitive certificate
in fully registered form representing a Common Security substantially in the
form of Exhibit A-2.
"Common Stock Fundamental Change" means any Fundamental Change
in which more than 50% of the value (as determined in good faith by the Board of
Directors of the Company) of the consideration received by holders of Company
Common Stock consists of common stock that for each of the ten consecutive
trading days prior to the Entitlement Date has been admitted for listing or
admitted for listing subject to notice of issuance on a national securities
exchange or quoted on the Nasdaq National Market; provided, however, that a
Fundamental Change shall not be a Common Stock Fundamental Change unless either
(i) the Company continues to exist after the occurrence of such Fundamental
Change and the outstanding Preferred Securities continue to exist as outstanding
Preferred Securities or (ii) not later than the occurrence of such Fundamental
Change, the outstanding Preferred Securities are converted into or exchanged for
shares of convertible preferred stock of an entity succeeding to the business of
the Company or a subsidiary thereof, which convertible preferred
4
<PAGE> 11
stock has powers, preferences, and relative, participating, optional, or other
rights, and qualifications, limitations, and restrictions, substantially similar
to those of the Preferred Securities.
"Company" means the Depositor in its capacity as issuer of the
Convertible Debentures.
"Company Common Stock" includes any stock of any class of the
Company which has no preference in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution or winding up
of the Company and which is not subject to redemption by the Company. However,
subject to the provisions of Annex 1, shares issuable on conversion of Trust
Securities shall include only shares of the class designated as Company Common
Stock of the Company at the date of this instrument or shares of any class or
classes resulting from any reclassification or reclassifications thereof and
which have no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and which are not subject to redemption by the Company; provided,
that if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable on conversion shall be substantially
in the proportion which the total number of shares of such class resulting from
all such reclassifications bears to the total number of shares of all such
classes resulting from all such reclassifications.
"Company Indemnified Person" means (i) any Administrative
Trustee; (ii) any Affiliate of any Administrative Trustee; (iii) any officer,
director, shareholder, member, partner, employee, representative or agent of any
Administrative Trustee; or (iv) any officer, employee or agent of the Trust or
its Affiliates.
"Compounded Interest" means interest compounded quarterly at
the rate specified for the Debentures to the extent permitted by applicable law
upon interest accrued and unpaid (including Additional Interest) at the end of
each Extension Period.
"Conversion Agent" has the meaning set forth in Section 7.10.
"Conversion Price" has the meaning set forth in Section 13.1.
"Conversion Request" has the meaning set forth in Section
13.2.
"Covered Person" means (a) any officer, director, stockholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b)
5
<PAGE> 12
any Holder of Trust Securities.
"Convertible Debentures" means the Convertible Debentures to
be issued by the Company under the Indenture and to be held by the Property
Trustee.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Depositary" means The Depository Trust Company, the initial
Clearing Agency, until a successor shall be appointed pursuant to Section 7.15,
and thereafter means such successor Depositary.
"Depositor" means Central Parking Corporation, a Tennessee
corporation, or any successor entity in a merger, consolidation or amalgamation,
in its capacity as sponsor of the Trust.
"Distribution" means a distribution payable to Holders of
Trust Securities in accordance with Section 6.1.
"Event of Default" in respect of the Trust Securities means an
Event of Default (as defined in the Indenture) has occurred and is continuing in
respect of the Convertible Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations promulgated thereunder,
or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 9.4(b).
"Fundamental Change" means the occurrence of any Transaction
or event in connection with a plan pursuant to which all or substantially all of
the Company Common Stock shall be exchanged for, converted into, acquired for,
or constitute solely the right to receive securities, cash, or other property
(whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization, or
otherwise), provided, that, in the case of a plan involving more than one such
Transaction or event, for purposes of adjustment of the conversion price, such
Fundamental Change shall be deemed to have occurred when substantially all of
the Company Common Stock shall be exchanged for, converted into, or acquired for
or constitute solely the right to receive securities, cash, or other property,
but the adjustment shall be based upon the consideration that a holder of
Company Common Stock received in such Transaction or event as a result of which
more than 50% of the Company Common Stock shall have been exchanged for,
converted into, or acquired for or constitute solely the right to receive
securities, cash, or other property. The term
6
<PAGE> 13
"Non-Stock Fundamental Change" means any Fundamental Change other than a Common
Stock Fundamental Change.
"Global Certificate" has the meaning set forth in Section
7.4(a).
"Holder" means a Person in whose name a Certificate
representing a Security is registered, such Person being a beneficial owner
within the meaning of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of March 18, 1998,
between the Company and the Indenture Trustee, as it may be amended from time to
time.
"Indenture Trustee" means Chase Bank of Texas, National
Association, a Texas banking corporation, as trustee under the Indenture until a
successor is appointed thereunder, and thereafter means such successor trustee.
"Investment Company" means an investment company as defined in
the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, and the rules and regulations promulgated
thereunder, or any successor legislation.
"Issuer Trustee" or "Issuer Trustees" means each Person who
has signed this Trust Agreement as a trustee, so long as such Person shall
continue in office in accordance with the terms hereof, and all other Persons
who may from time to time be duly appointed, qualified and serving as Issuer
Trustees in accordance with the provisions hereof, and references herein to a
Issuer Trustee or the Issuer Trustees shall refer to such Person or Persons
solely in their capacity as trustees hereunder.
"Legal Action" has the meaning set forth in Section 5.9(d)(x).
"Liquidated Damages" has the meaning specified in the
Indenture.
"Majority in Liquidation Amount of the Common Securities"
means, except as provided in the terms of the Common Securities or by the Trust
Indenture Act, Holders of outstanding Common Securities voting together as a
single class who are the record owners of more than 50% of the aggregate
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all outstanding
Common
7
<PAGE> 14
Securities of the relevant class.
"Majority in Liquidation Amount of the Trust Securities"
means, except as provided in the terms of the Preferred Securities or by the
Trust Indenture Act, Holders of outstanding Trust Securities voting together as
a single class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Trust Securities
of the relevant class.
"Ministerial Action" has the meaning set forth in the terms of
the Trust Securities as set forth in Annex I hereto.
"Non-Stock Fundamental Change" means any Fundamental Change
other than a Common Stock Fundamental Change.
"NYSE" means the New York Stock Exchange.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(i) a statement that each officer signing the Certificate
has read the covenant or condition and the
definitions relating thereto;
(ii) a brief statement of the nature and scope of the
examination or investigation undertaken by each
officer in rendering the Certificate;
(iii) a statement that each such officer has made such
examination or investigation as, in such officer's
opinion, is necessary to enable such officer to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been
complied with.
8
<PAGE> 15
"Offering Memorandum" means the final offering memorandum
issued by the Company, dated as of March 13, 1998.
"Paying Agent" has the meaning specified in Section 7.10.
"Person" means any legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities" has the meaning specified in Section
7.1.
"Preferred Security Certificate" means a certificate
representing a Preferred Security substantially in the form of Exhibit A-1.
"Preferred Securities Guarantee" means the Guarantee Agreement
dated as of March 18, 1998 of the Depositor in respect of the Preferred
Securities.
"Preferred Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Depositary, or on the books of a
Person maintaining an account with such Depositary (directly as a participant or
as an indirect participant, in each case in accordance with the rules of such
Depositary).
"Property Trustee" means the Issuer Trustee meeting the
eligibility requirements set forth in Section 5.3.
"Property Account" has the meaning set forth in Section
5.11(c).
"Purchase Agreement" means the Purchase Agreement dated as of
March 12, 1998, between the Depositor and the initial purchasers named therein,
relating to the Preferred Securities.
"Purchaser Stock Price" means, with respect to any Common
Stock Fundamental Change, the average of the Closing Prices for the common stock
received in such Common Stock Fundamental Change for the ten consecutive trading
days prior to and including the Entitlement Date, as adjusted in good faith by
the Company to appropriately reflect any of the events referred to in Section
13.3.
"Quorum" means a majority of the Administrative Trustees.
9
<PAGE> 16
"Reference Market Price" shall initially mean $29.37 (which is
an amount equal to 66 2/3% of the reported last sales price for Company Common
Stock on the NYSE Consolidated Transactions Tape on March 12, 1998) and in the
event of any adjustment of the conversion price other than as a result of a
Non-Stock Fundamental Change, the Reference Market Price shall also be adjusted
so that the ratio of the Reference Market Price to the conversion price after
giving effect to any such adjustment shall always be the same as the ratio of
the initial Reference Market Price to the initial conversion price of the
Preferred Securities.
"Registrar" has the meaning set forth in Section 7.10.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated March 18, 1998, among the Depositor, the Trust, and the initial
purchasers named in the Purchase Agreement.
"Regulation S Certificate" means a certificate substantially
in the form set forth in Exhibit B.
"Regulation S Global Certificate" has the meaning set forth in
Section 7.4(a).
"Regulation S Preferred Securities" has the meaning set forth
in Section 7.4(a).
"Regulation S Legend" has the meaning set forth in Section
7.8(b).
"Related Party" means, with respect to the Depositor, any
direct or indirect wholly owned subsidiary of the Depositor or any other Person
that owns, directly or indirectly, 100% of the outstanding voting securities of
the Depositor.
"Responsible Officer" means, with respect to the Property
Trustee, any vice-president, any assistant vice-president, the treasurer, any
assistant treasurer, any trust officer or assistant trust officer or any other
officer in the Corporate Trust Department of the Property Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Restricted Global Certificate" has the meaning set forth in
Section 7.4(a).
"Restricted Period" means, with respect to the Preferred
Securities, the one-year period, and with respect to the Convertible Debentures
or the Company Common Stock issuable on conversion of the Preferred Securities,
the 40-day
10
<PAGE> 17
period, in either case following the last original issue date of the Preferred
Securities (including any Preferred Securities issued to cover over-allotments).
"Restricted Securities" means all Preferred Securities
required pursuant to Section 7.8 to bear any Restricted Securities Legend. Such
term includes the Restricted Global Certificate.
"Restricted Securities Certificate" means a certificate
substantially in the form set forth in Exhibit C.
"Restricted Securities Legend" has the meaning specified in
Section 7.8.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and the rules and regulations promulgated thereunder, or any
successor legislation.
"Securities Act Legend" means a Restricted Securities Legend
or a Regulation S Legend.
"Securities Guarantee" means the Common Securities Guarantee
and the Preferred Securities Guarantee.
"Shelf Registration Statement" means the Registration
Statement including any amendments thereto relating to, among other securities,
the Preferred Securities, as defined in the Registration Rights Agreement.
"Special Event" has the meaning set forth in Annex I hereto.
"Successor Entity" has the meaning set forth in Section
3.9(b)(i).
"Successor Securities" has the meaning set forth in Section
3.9(b)(i)(B).
"Super Majority" has the meaning set forth in Section
2.6(a)(ii).
"Tax Event" has the meaning set forth in Annex I hereto.
"10% in Liquidation Amount of the Trust Securities" means,
except as provided in the terms of the Preferred Securities or by the Trust
Indenture Act, Holders of outstanding Trust Securities voting together as a
single class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities, voting separately as a
class, who are the record
11
<PAGE> 18
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Trust Securities of the relevant class.
"Trading Day" has the meaning set forth in Section 13.7.
"Transaction" has the meaning set forth in Section 13.4.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trust Securities" means the Common Securities and the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates, the Global Certificates or the Certificated Preferred
Securities.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, and the rules and regulations promulgated
thereunder, or any successor legislation.
"Unrestricted Securities Certificate" means a certificate
substantially in the form set forth in Exhibit D.
ARTICLE II
TRUST INDENTURE ACT; REPORTS, NOTICES AND COMPLIANCE
CERTIFICATES
SECTION 2.1 Trust Indenture Act; Application.
(a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Trust Agreement, which
are incorporated by reference in and made part of this Trust Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Issuer Trustee that
is a Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this
12
<PAGE> 19
Trust Agreement limits, qualifies or conflicts with the duties imposed by ss.ss.
310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
SECTION 2.2 Lists of Holders of Trust Securities.
(a) Each of the Depositor and the Administrative Trustees on
behalf of the Trust shall provide the Property Trustee (i) within 14 days after
each record date for payment of Distributions, a list, in such form as the
Property Trustee may reasonably require, of the names and addresses of the
Holders of the Trust Securities ("List of Holders") as of such record date,
provided that neither the Depositor nor the Administrative Trustees on behalf of
the Trust shall be obligated to provide such List of Holders at any time the
List of Holders does not differ from the most recent List of Holders given to
the Property Trustee by the Depositor and the Administrative Trustees on behalf
of the Trust, and (ii) at any other time, within 30 days of receipt by the Trust
of a written request for a List of Holders as of a date no more than 14 days
before such List of Holders is given to the Property Trustee. The Property
Trustee shall preserve, in as current a form as is reasonably practicable, all
information contained in any List of Holders given to it or which it receives in
the capacity as Paying Agent (if acting in such capacity), provided that the
Property Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations
under ss.ss. 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
(a) Within 60 days after May 15 of each year, commencing May
15, 1998, the Property Trustee shall transmit by mail to Holders such reports
concerning the Property Trustee and its actions under this Trust Agreement as
may be required pursuant to the Trust Indenture Act in the manner provided
pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Property Trustee with each stock
exchange upon which the Trust Securities are listed, with the Commission and
with the Company. The Trust will notify the Property Trustee when the Trust
Securities are listed on any stock exchange.
13
<PAGE> 20
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Depositor and the Trust shall file with the
Property Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided, that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Property Trustee within 15 days after the
same is so required to be filed with the Commission.
Delivery of such reports, information and documents to the
Property Trustee is for informational purposes only and the Property Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Trust's compliance with any of its covenants hereunder (as to which the
Property Trustee is entitled to rely exclusively on Officers' Certificates).
Each of the Depositor and the Trust shall also provide to the
Property Trustee on a timely basis such information as the Property Trustee
requires to enable the Property Trustee to prepare and file any form required to
be submitted by the Company with the Internal Revenue Service and the Holders of
the Trust Securities relating to original issue discount, if any, including,
without limitation, Form 1099-OID or any successor form.
SECTION 2.5 Evidence of Compliance with Conditions
Precedent.
Each of the Depositor and the Administrative Trustees on
behalf of the Trust shall provide to the Property Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Trust
Agreement that relate to any of the matters set forth in ss. 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to ss. 314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a majority in liquidation amount of
Preferred Securities may, by vote, on behalf of the Holders of all of the
Preferred Securities, waive any past Event of Default in respect of the
Preferred Securities and its consequences, provided that, if the underlying
Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event
of Default under the Trust Agreement shall also not be waivable; or
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(ii) requires the consent or vote of greater than a
majority in principal amount of the holders of the Convertible
Debentures (a "Super Majority") to be waived under the Indenture, the
Event of Default under the Trust Agreement may only be waived by the
vote of the Holders of at least the proportion in liquidation amount of
the Preferred Securities that the relevant Super Majority represents of
the aggregate principal amount of the Convertible Debentures
outstanding.
The foregoing provisions of this Section 2.6(a) shall be in
lieu of ss. 316(a)(1)(B) of the Trust Indenture Act and such ss. 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Trust Agreement
and the Trust Securities, as permitted by the Trust Indenture Act. Upon such
waiver, any such default shall cease to exist, and any Event of Default with
respect to the Preferred Securities arising therefrom shall be deemed to have
been cured, for every purpose of this Trust Agreement, but no such waiver shall
extend to any subsequent or other default or an Event of Default with respect to
the Preferred Securities or impair any right consequent thereon. Any waiver by
the Holders of the Preferred Securities of an Event of Default with respect to
the Preferred Securities shall also be deemed to constitute a waiver by the
Holders of the Common Securities of any such Event of Default with respect to
the Common Securities for all purposes of this Trust Agreement without any
further act, vote, or consent of the Holders of the Common Securities.
(b) The Holders of a majority in liquidation amount of the
Common Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where
the Holders of the Common Securities are deemed to have waived such
Event of Default under the Trust Agreement as provided below in this
Section 2.6(b), the Event of Default under the Trust Agreement shall
also not be waivable; or
(ii) requires the consent or vote of a Super Majority
to be waived, except where the Holders of the Common Securities are
deemed to have waived such Event of Default under the Trust Agreement
as provided below in this Section 2.6(b), the Event of Default under
the Trust Agreement may only be waived by the vote of the Holders of at
least the proportion in liquidation amount of the Common Securities
that the relevant Super Majority represents of the aggregate principal
amount of the Convertible Debentures outstanding;
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provided further, that each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Securities and its consequences until all Events of Default with respect
to the Preferred Securities have been cured, waived or otherwise eliminated, and
until such Events of Default have been so cured, waived or otherwise eliminated,
the Property Trustee will be deemed to be acting solely on behalf of the Holders
of the Preferred Securities and only the Holders of the Preferred Securities
will have the right to direct the Property Trustee in accordance with the terms
of the Securities. The foregoing provisions of this Section 2.6(b) shall be in
lieu of ss.ss. 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such
ss.ss. 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Trust Agreement and the Trust Securities, as
permitted by the Trust Indenture Act. Subject to the foregoing provisions of
this Section 2.6(b), upon such waiver, any such default shall cease to exist and
any Event of Default with respect to the Common Securities arising therefrom
shall be deemed to have been cured for every purpose of this Trust Agreement,
but no such waiver shall extend to any subsequent or other default or Event of
Default with respect to the Common Securities or impair any right consequent
thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee at the direction of the Holders of the Preferred Securities,
constitutes a waiver of the corresponding Event of Default under this Trust
Agreement. The foregoing provisions of this Section 2.6(c) shall be in lieu of
ss. 316(a)(1)(B) of the Trust Indenture Act and such ss. 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Trust Agreement and
the Trust Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 10 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Trust Securities, the Administrative Trustees and
the Depositor, notices of all defaults with respect to the Trust Securities
actually known to a Responsible Officer of the Property Trustee, unless such
defaults have been cured or waived before the giving of such notice (the term
"defaults" for the purposes of this Section 2.7(a) being hereby defined to be an
Event of Default as defined in the Indenture, not including any periods of grace
provided for therein and irrespective of the giving of any notice provided
therein); provided that, except for a default in the payment of principal of (or
premium, if any) or interest on any of the Convertible Debentures or in the
payment of any sinking fund installment established for the Convertible
Debentures, the Property Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee, or a trust
committee of directors and/or Responsible Officers of
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the Property Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Trust Securities, the
Administrative Trustees and the Depositor.
(b) The Property Trustee shall not be deemed to have knowledge
of any default except:
(i) a default under Sections 501(1) and 501(2) of
the Indenture; or
(ii) any default as to which the Property Trustee
shall have received written notice or of which a Responsible Officer of
the Property Trustee charged with the administration of the Trust
Agreement shall have actual knowledge.
ARTICLE III
ORGANIZATION OF TRUST
SECTION 3.1 Name.
The Trust is named "Central Parking Finance Trust," as such
name may be modified from time to time by the Administrative Trustees following
10 Business Days written notice to the Holders of Trust Securities. The Trust's
activities may be conducted under the name of the Trust or any other name deemed
advisable by the Administrative Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o
Central Parking Corporation, 2401 21st Avenue South, Suite 200, Nashville,
Tennessee, Attention: Andrew Paalborg, General Counsel. On 10 Business Days
written notice to the Holders of Trust Securities, the Administrative Trustees
may designate another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Trust Securities and use the proceeds from such sale to acquire
the Convertible Debentures, and (b) except as otherwise limited herein, to
engage in only those other activities necessary or incidental thereto. The Trust
shall not borrow money, issue debt or reinvest proceeds derived from
investments, pledge any of its assets, or otherwise undertake (or permit to be
undertaken) any activity that would cause the Trust not to be classified for
United States federal income tax purposes as a grantor trust.
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SECTION 3.4 Prohibition of Actions by the Trust and the Issuer
Trustees.
The Trust shall not, and the Issuer Trustees (including the
Property Trustee) shall not, engage in any activity other than as required or
authorized by this Trust Agreement. In particular, the Trust shall not and the
Issuer Trustees (including the Property Trustee) shall not cause the Trust to:
(a) invest any proceeds received by the Trust from holding the
Convertible Debentures, but shall distribute all such proceeds to Holders of
Trust Securities pursuant to the terms of this Trust Agreement and of the Trust
Securities;
(b) acquire any assets other than as expressly provided herein;
(c) possess Trust property for other than a Trust purpose;
(d) make any loans or incur any indebtedness other than loans
represented by the Convertible Debentures;
(e) possess any power or otherwise act in such a way as to vary
the Trust assets or the terms of the Trust Securities in any way whatsoever;
(f) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the Trust
Securities; or
(g) other than as provided in this Trust Agreement or Annex I
hereto, (a) direct the time, method and place of exercising any trust or power
conferred upon the Indenture Trustee with respect to the Convertible
Debentures, (b) waive any past default that is waivable under the Indenture,
(c) exercise any right to rescind or annul any declaration that the principal
of all the Convertible Debentures shall be due and payable, or (d) consent to
any amendment, modification or termination of the Indenture or the Convertible
Debentures where such consent shall be required unless the Trust shall have
received an opinion of counsel to the effect that such amendment or
modification will not cause more than an insubstantial risk that (i) the Trust
will be deemed an Investment Company required to be registered under the
Investment Company Act, or (ii) for United States federal income tax purposes
the Trust will not be classified as a grantor trust.
SECTION 3.5 General Authority of the Issuer Trustees.
In dealing with the Issuer Trustees acting on behalf of the
Trust, no person shall be required to inquire into the authority of the Issuer
Trustees to bind the Trust. Persons
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dealing with the Trust are entitled to rely conclusively on the power and
authority of the Issuer Trustees as set forth in this Trust Agreement.
SECTION 3.6 Title to Property of the Trust.
Except as provided in Section 5.11 with respect to the
Convertible Debentures and the Property Account or as otherwise provided in
this Trust Agreement, legal title to all assets of the Trust shall be vested in
the Trust. The Holders shall not have legal title to any part of the assets of
the Trust, but shall have an undivided beneficial interest in the assets of the
Trust.
SECTION 3.7 Not Responsible for Recitals or Issuance of Trust
Securities.
The recitals contained in this Trust Agreement and the Trust
Securities shall be taken as the statements of the Depositor, and the Issuer
Trustees do not assume any responsibility for their correctness. The Issuer
Trustees make no representations as to the value or condition of the property
of the Trust or any part thereof. The Issuer Trustees make no representations
as to the validity or sufficiency of this Trust Agreement or the Trust
Securities.
SECTION 3.8 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of
Section 3.10 hereof, shall exist until April 1, 2028.
SECTION 3.9 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety, to any Person, except as described in Sections
3.9(b) and 3.9(c).
(b) The Trust may, with the consent of the majority of the
Administrative Trustees, and without the consent of the Holders of the Trust
Securities, the Delaware Trustee or the Property Trustee, consolidate,
amalgamate, merge with or into, or be replaced by a trust organized as such
under the laws of any state of the United States; provided that:
(i) if the Trust is not the survivor, such successor entity
(the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Trust Securities; or
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(B) substitutes for the Preferred Securities other
securities having substantially the same terms as
the Preferred Securities (the "Successor
Securities") so long as the Successor Securities
rank the same as the Preferred Securities with
respect to Distributions, assets and payments upon
liquidation, redemption and otherwise;
(ii) the Company expressly acknowledges a trustee
of the Successor Entity that possesses the same powers and duties as
the Property Trustee as the Holder of the Convertible Debentures;
(iii) the Preferred Securities or any Successor
Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or with
another organization on which the Preferred Securities are then listed
or quoted;
(iv) such merger, consolidation, amalgamation or
replacement does not cause the Preferred Securities (including any
Successor Securities) to be downgraded by any nationally recognized
statistical rating organization;
(v) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and
privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect (other than with respect
to any dilution of the Holders' interest in the new entity);
(vi) such Successor Entity has a purpose
substantially identical to that of the Trust;
(vii) the Depositor guarantees the obligations of
such Successor Entity under the Successor Securities at least to the
extent provided by the Preferred Securities Guarantee; and
(viii) prior to such merger, consolidation,
amalgamation or replacement, the Depositor has received an opinion of
a nationally recognized independent counsel to the Trust reasonably
acceptable to the Property Trustee and experienced in such matters to
the effect that:
(A) such merger, consolidation, amalgamation
or replacement will not adversely affect the rights,
preferences and privileges of the Holders of the Trust
Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of
the Holders' interest in the new entity);
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(B) following such merger, consolidation,
amalgamation or replacement, neither the Trust nor the
Successor Entity will be required to register as an
Investment Company; and
(C) following such merger, consolidation,
amalgamation or replacement, the Trust (or the Successor
Entity) will be treated as a grantor trust for United States
federal income tax purposes.
(c) Notwithstanding Section 3.9(b), the Trust shall not,
except with the consent of Holders of 100% in liquidation amount of the Common
Securities, consolidate, amalgamate, merge with or into, or be replaced by any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or Successor Entity to be classified as other
than a grantor trust for United States federal income tax purposes.
SECTION 3.10 Termination of Trust.
(a) The Trust shall terminate:
(i) upon the bankruptcy of the Depositor;
(ii) upon the filing of a certificate of dissolution
or its equivalent with respect to the Depositor, the filing of a
certificate of cancellation with respect to the Trust after having
obtained the consent of at least a majority in liquidation amount of
the Trust Securities, voting together as a single class, to file such
certificate of cancellation, or the revocation of the Certificate of
Incorporation of the Depositor and the expiration of 90 days after the
date of revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial
dissolution of the Depositor or the Trust;
(iv) upon the redemption, conversion or exchange of
all of the Trust Securities and the amounts necessary for redemption,
conversion or exchange thereof, including any Additional Interest,
Liquidated Damages, if any, and Compounded Interest, shall have been
paid to the Holders in accordance with the terms of the Trust
Securities;
(v) upon the distribution of all of the Convertible
Debentures upon the occurrence of a Special Event, except in the case
of a Tax Event that has occurred and is continuing following which the
Depositor has elected to pay any additional sums such that the net
amount received by holders of Preferred Securities in
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respect of Distributions is not reduced as a result of such Tax Event
and the Depositor has not revoked any such election or failed to make
such payments; or
(vi) the expiration of the term of the Trust on April
1, 2028.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 3.10(a), the Administrative Trustees shall pay (or make
provision for the payment of) all claims against the Trust and shall execute
and file a certificate of cancellation with the Secretary of State of the State
of Delaware.
(c) The provisions of Article IX shall survive the termination
of the Trust.
ARTICLE IV
DEPOSITOR
SECTION 4.1 Depositor's Purchase of Common Securities.
On the Closing Date and on any other date Preferred Securities
and Common Securities are sold pursuant to the over-allotment option granted in
the Purchase Agreement, the Depositor will purchase all of the Common
Securities issued by the Trust, in an aggregate amount at least equal to 3% of
the capital of the Trust, at the same time as the Preferred Securities are
sold.
SECTION 4.2 Responsibilities of the Depositor.
In connection with the issue and sale of the Preferred
Securities, the Depositor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare and execute, if necessary, an offering circular
(the "Offering Circular") in preliminary and final form in relation to the
offering and sale of Preferred Securities to qualified institutional buyers in
reliance on Rule 144A and in offshore transactions in reliance on Regulation S
under the Securities Act and to prepare for filing with the Commission, any
shelf registration statement, including any amendments thereto required to be
filed in connection with the Registration Rights Agreement;
(b) to determine the states and foreign jurisdictions, if any,
in which to take appropriate action to qualify or register for sale all or part
of the Preferred Securities and to do any and all such acts, other than actions
that must be taken by the Trust, and advise the Trust of
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actions it must take, and prepare for execution and filing any documents to be
executed and filed by the Trust, as the Depositor deems necessary or advisable
in order to comply with the applicable laws of any such states and foreign
jurisdictions;
(c) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act, including any
amendments thereto in connection with the requirements of the Registration
Rights Agreement; and
(d) to negotiate the terms of the Purchase Agreement,
Registration Rights Agreement and other agreements, documents and instruments
providing for the sale of the Preferred Securities.
ARTICLE V
ISSUER TRUSTEES
SECTION 5.1 Number of Issuer Trustees.
The initial number of Issuer Trustees shall be five, and
(a) at any time before the issuance of any Trust Securities, the
Depositor may, by written instrument, increase or decrease the number of Issuer
Trustees; and
(b) after the issuance of any Trust Securities, the number of
Issuer Trustees may be increased or decreased by vote of the Holders of a
Majority in Liquidation Amount of the Common Securities voting as a class at a
meeting of the Holders of the Common Securities;
provided, however, that the number of Issuer Trustees shall in no event be less
than three; provided further that (i) there shall be at least two(A)
Administrative Trustees who are employees or officers of, or are affiliated
with the Depositor and (ii) one Issuer Trustee shall be the Property Trustee
for so long as this Trust Agreement is required to qualify as an indenture
under the Trust Indenture Act, and such Issuer Trustee may also serve as
Delaware Trustee if it meets the applicable requirements.
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SECTION 5.2 Delaware Trustee; Eligibility.
If required by the Business Trust Act, one Issuer Trustee (the
"Delaware Trustee") shall be:
(a) a natural person who is resident of the State of Delaware;
or
(b) if not a natural person, an entity that has its principal
place of business in the State of Delaware, and otherwise meets the
requirements of applicable law,
provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee may also be the Delaware Trustee and Section 5.14
shall have no application.
SECTION 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Issuer Trustee which shall
act as Property Trustee and shall:
(i) not be an Affiliate of the Depositor;
(ii) be a corporation organized and doing business under
the laws of the United States of America or any state or territory
thereof or of the District of Columbia, or a Person permitted by the
Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000,
and subject to supervision or examination by federal, state,
territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority referred
to above, then for the purposes of this Section 5.3(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent
report of condition so published; and
(iii) if the Trust is excluded from the definition of an
Investment Company solely by means of Rule 3a-5 and to the extent the
Investment Company Act or Trust Indenture Act requires a trustee
having certain qualifications to hold title to the "eligible assets"
of the Trust, the Property Trustee shall possess those qualifications.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 5.3(a), the Property Trustee shall immediately
resign in the manner and with the effect set forth in Section 5.6(d).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of ss. 310(b) of the Trust Indenture
Act, the Property Trustee and the Holder of the Common Securities (as if it
were the obligor referred to in ss. 310(b) of the Trust Indenture Act) shall in
all
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respects comply with the provisions of ss. 310(b) of the Trust
Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Trust Agreement for purposes of clause (i) of
the first provision contained in Section 310(b) of the Trust Indenture Act.
SECTION 5.4 Qualifications of Administrative Trustees and Delaware
Trustee Generally.
Each Administrative Trustee and the Delaware Trustee (unless
the Property Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
SECTION 5.5 Initial Trustees.
The Initial Administrative Trustees are:
Monroe J. Carell, Jr.
James H. Bond
Andrew M. Paalborg
The Initial Delaware Trustee is:
Chase Manhattan Bank Delaware
The Initial Property Trustee is:
Chase Bank of Texas, National Association
SECTION 5.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Sections 5.6(b) and 5.6(c), Trustees may be
appointed or removed without cause at any time:
(i) until the issuance of any Trust Securities, by written
instrument executed by the Depositor; and
(ii) after the issuance of any Trust Securities, by vote of
the Holders of a majority in liquidation amount of the Common
Securities voting as a class.
(b) The Issuer Trustee that acts as Property Trustee shall
not be removed in accordance with Section 5.6(a) until a successor possessing
the qualifications to act as a Property Trustee under Section 5.3 (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
instrument executed by such Successor Property Trustee and delivered to the
Trust, the Depositor and the removed Property
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Trustee.
(c) The Issuer Trustee that acts as Delaware Trustee shall
not be removed in accordance with Section 5.6(a) until a successor possessing
the qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by instrument executed by such Successor Delaware Trustee and
delivered to the Trust, the Depositor and the removed Delaware Trustee.
(d) A Issuer Trustee appointed to office shall hold office
until his, hers or its successor shall have been appointed or until his, her or
its death, removal, resignation, dissolution or liquidation. Any Issuer Trustee
may resign from office (without need for prior or subsequent accounting) by an
instrument in writing signed by the Issuer Trustee and delivered to the
Depositor and the Trust, which resignation shall take effect upon such delivery
or upon such later date as is specified therein; provided, however, that:
(i) No such resignation of the Issuer Trustee that acts
as the Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered
to the Trust, the Depositor and the resigning Property
Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof
distributed to the holders of the Trust Securities; and
(ii) no such resignation of the Issuer Trustee that acts
as the Delaware Trustee shall be effective until a Successor Delaware
Trustee has been appointed and has accepted such appointment by
instrument executed by such Successor Delaware Trustee and delivered
to the Trust, the Depositor and the resigning Delaware Trustee.
(e) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with Section 5.6(d).
(f) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 5.6 within 60 days after delivery pursuant to this Section 5.6 of an
instrument of resignation or removal, the Property Trustee or Delaware Trustee
resigning or being removed, as applicable, may
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petition any court of competent jurisdiction for appointment of a Successor
Property Trustee or Successor Delaware Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper and prescribe, appoint a
Successor Property Trustee or Successor Delaware Trustee, as the case may be.
(g) No Property Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 5.7 Vacancies among Trustees.
If a Issuer Trustee ceases to hold office for any reason and
the number of Trustees is not reduced pursuant to Section 5.1, or if the number
of Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by a majority of the
Administrative Trustees, shall be conclusive evidence of the existence of such
vacancy. The vacancy shall be filled with a Issuer Trustee appointed in
accordance with Section 5.6.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Issuer Trustee shall not operate to annul the Trust. Whenever a vacancy in the
number of Administrative Trustees shall occur, until such vacancy is filled by
the appointment of an Administrative Trustee in accordance with this Section
5.6, the Administrative Trustees in office, regardless of their number, shall
have all the powers granted to the Administrative Trustees and shall discharge
all the duties imposed upon the Administrative Trustees by this Trust
Agreement.
SECTION 5.8 Merger, Conversion, Consolidation or Succession to Business
of an Issuer Trustee.
Any entity into which the Property Trustee, the Delaware Trustee
or any Administrative Trustee that is not a natural person, as the case may be,
may be merged or converted or with which either may be consolidated, or any
entity resulting from any merger, conversion or consolidation to which the
Property Trustee, the Delaware Trustee or Administrative Trustee, as the case
may be, shall be a party, or any entity succeeding to all or substantially all
the corporate trust business of the Property Trustee, the Delaware Trustee or
the Administrative Trustee, as the case may be, shall be the successor of the
Property Trustee, the Delaware Trustee or the Administrative Trustee, as the
case may be, hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article V, without the execution or filing of any paper
or any further act on the part of any of the parties hereto.
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SECTION 5.9 Authority, Powers and Duties of the Administrative
Trustees.
(a) Subject to the limitations provided in this Trust Agreement
and to the specific duties of the Property Trustee, the Administrative Trustees
shall have exclusive and complete authority to carry out the purposes of the
Trust. An action taken by the Administrative Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust and an action
taken by the Property Trustee on behalf of the Trust in accordance with its
powers shall constitute the act of and serve to bind the Trust.
(b) Except as expressly set forth in this Trust Agreement and
except if a meeting of the Administrative Trustees is called with respect to
any matter over which the Administrative Trustees have power to act, any power
of the Administrative Trustees may be exercised by, or with the consent of, any
one such Administrative Trustee.
(c) Unless otherwise determined by the Administrative Trustees,
and except as otherwise required by the Business Trust Act or applicable law,
any Administrative Trustee is authorized to execute on behalf of the Trust any
documents which the Administrative Trustees have the power and authority to
cause the Trust to execute pursuant to Section 5.9, provided, that any shelf
registration statement, including any amendments thereto, shall be signed by a
majority of the Administrative Trustees.
(d) The Administrative Trustees shall have the exclusive power,
duty and authority to cause the Trust to engage in the following activities:
(i) to issue and sell the Preferred Securities and the
Common Securities in accordance with this Trust Agreement; provided,
however, that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities, and,
provided, further, that there shall be no interests in the Trust other
than the Trust Securities, and the issuance of Trust Securities shall
be limited to simultaneous issuance of both Preferred Securities and
Common Securities on the Closing Date and any other date Preferred
Securities and Common Securities are sold pursuant to the
over-allotment option granted in the Purchase Agreement;
(ii) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Registration Rights
Agreement and the Certificate Depository Agreement and such other
agreements as may be necessary or incidental to the purposes and
function of the Trust;
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(iii) to assist in the registration of the
Preferred Securities under the Securities Act of 1933, as amended, and
under state securities or blue sky laws according to the terms of the
Registration Rights Agreement, and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act upon the
effectiveness of the Shelf Registration Statement pursuant to the
Registration Rights Agreement;
(iv) to assist the registration of the Preferred
Securities under the Securities Exchange Act of 1934, as amended, in
connection with the Shelf Registration Statement and according to the
terms of the Registration Rights Agreement, and the preparation and
filing of all periodic and other reports and other documents pursuant
to the foregoing (only to the extent that such listing or registration
is requested by the Depositor);
(v) execute and perform the Purchase Agreement,
Registration Rights Agreement and other agreements, documents and
instruments providing for the sale of the Preferred Securities;
(vi) to acquire the Convertible Debentures with
the proceeds of the sale of the Preferred Securities and the Common
Securities; provided, however, that the Administrative Trustees shall
cause legal title to the Convertible Debentures to be held of record
in the name of the Property Trustee for the benefit of the Holders of
the Preferred Securities and the Holders of Common Securities;
(vii) to give the Depositor and the Property
Trustee prompt written notice of the occurrence of a Special Event;
provided that the Administrative Trustees shall consult with the
Depositor and the Property Trustee before taking or refraining from
taking any Ministerial Action in relation to a Special Event;
(viii) to establish a record date with respect to
all actions to be taken hereunder that require a record date be
established, including and with respect to, for the purposes of
ss.316(c) of the Trust Indenture Act, Distributions, voting rights,
redemptions and exchanges, and to issue relevant notices to the
Holders of Preferred Securities and Holders of Common Securities as to
such actions and applicable record dates;
(ix) to take all actions and perform such duties
as may be required of the Administrative Trustees pursuant to the
terms of the Trust Securities;
(x) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action, or
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otherwise adjust claims or demands of or against the Trust ("Legal
Action"), unless pursuant to Section 5.11(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(xi) to employ or otherwise engage employees and
agents (who may be designated as officers with titles) and managers,
advisors, and consultants and pay reasonable compensation for such
services;
(xii) to cause the Trust to comply with the
Trust's obligations under the Trust Indenture Act;
(xiii) to give the certificate required by Section
314(a)(4) of the Trust Indenture Act to the Property Trustee, which
certificate may be executed by any Administrative Trustee;
(xiv) to incur expenses that are necessary or
incidental to carry out any of the purposes of the Trust;
(xv) to act as, or appoint another Person to act
as, registrar and transfer agent for the Trust Securities;
(xvi) to give prompt written notice to the Holders
of the Trust Securities of any notice received from the Company of its
election to defer payments of interest on the Convertible Debentures
by extending the interest payment period under the Indenture;
(xvii) to execute all documents or instruments,
perform all duties and powers, and do all things for and on behalf of
the Trust in all matters necessary or incidental to the foregoing;
(xviii) to take all action that may be necessary or
appropriate for the preservation and the continuation of the Trust's
valid existence, rights, franchises and privileges as a statutory
business trust under the laws of the State of Delaware and of each
other jurisdiction in which such existence is necessary to protect the
limited liability of the Holders of the Preferred Securities or to
enable the Trust to effect the purposes for which the Trust was
created;
(xix) to take any action, not inconsistent with
this Trust Agreement or with applicable law, that the Administrative
Trustees determine in their discretion to be necessary or desirable in
carrying out the activities of the Trust as set out in this Section
5.9, including, but not limited to:
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(A) causing the Trust not to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(B) causing the Trust to be classified for United
States federal income tax purposes as a grantor trust; and
(C) cooperating with the Company to ensure that the
Convertible Debentures will be treated as indebtedness of
the Company for United States federal income tax purposes;
provided that such action does not adversely affect the
interests of Holders; and
(xx) to take all action necessary to cause all applicable
tax returns and tax information reports that are required to be filed
with respect to the Trust to be duly prepared and filed by the
Administrative Trustees, on behalf of the Trust.
(e) The Administrative Trustees must exercise the powers set
forth in this Section 5.9 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.3, and the Administrative Trustees
shall not take any action that is inconsistent with the purposes and functions
of the Trust set forth in Section 3.3.
(f) Subject to this Section 5.9, the Administrative Trustees
shall have none of the powers or the authority of the Property Trustee set
forth in Section 5.11.
(g) Any expenses incurred by the Administrative Trustees
pursuant to this Section 5.9 shall be reimbursed by the Company.
SECTION 5.10 Delegation of Powers and Duties of the Administrative
Trustees.
The Administrative Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation is
not prohibited by applicable law or contrary to the provisions of the Trust, as
set forth herein. The Administrative Trustees may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 their power for the purpose of executing any documents contemplated
in Section 5.9, including any shelf registration statement or any amendment
thereto or other document filed with the Commission, or making any other
governmental filing.
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SECTION 5.11 Powers and Duties of the Property Trustee.
(a) The legal title to the Convertible Debentures shall be
owned by and held of record in the name of the Property Trustee in trust for
the benefit of the Holders of the Trust Securities. The right, title and
interest of the Property Trustee to the Convertible Debentures shall vest
automatically in each Person who may hereafter be appointed as Property Trustee
in accordance with Section 5.6. Such vesting and cessation of title shall be
effective whether or not conveyancing documents with regard to the Convertible
Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title
and interest in the Convertible Debentures to the Administrative Trustees or to
the Delaware Trustee (if the Property Trustee does not also act as Delaware
Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Property Account") in the name of and
under the exclusive control of the Property Trustee on behalf of the
Holders of the Trust Securities and, upon the receipt of payments of
funds made in respect of the Convertible Debentures held by the
Property Trustee, deposit such funds into the Property Account and
make payments to the Holders of the Preferred Securities and Holders
of the Common Securities from the Property Account in accordance with
Section 6.1. Funds in the Property Account shall be held uninvested
until disbursed in accordance with this Trust Agreement. The Property
Account shall be an account that is maintained with a banking
institution the rating on whose long-term unsecured indebtedness is at
least equal to the rating assigned to the Preferred Securities by a
"nationally recognized statistical rating organization," as that term
is defined for purposes of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as so directed
and as shall be necessary or appropriate to effect the redemption of
the Preferred Securities and the Common Securities to the extent the
Convertible Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by the
Administrative Trustees in accordance with the terms of the Trust
Securities, engage in such ministerial activities as so directed as
shall be necessary or appropriate to effect the distribution of the
Convertible Debentures to Holders of Trust Securities upon the
occurrence of certain Special Events arising from a change in law or a
change in legal interpretation or other specified circumstances
pursuant to the terms of the Trust Securities.
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(d) The Property Trustee shall take all actions and perform
such duties as may be specifically required of the Property Trustee pursuant to
the terms of the Trust Securities.
(e) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Convertible
Debentures under the Indenture and, if an Event of Default actually known to a
Responsible Officer of the Property Trustee occurs and is continuing, the
Property Trustee shall, to the extent as obligated to do so hereunder, for the
benefit of Holders of the Trust Securities, but subject to the rights of the
Holders pursuant to the terms of such Trust Securities, take such action as it
shall be instructed by the holders of a Majority in Liquidation Amount of the
Trust Securities to enforce its rights as holder of the Convertible Debentures,
including the right to take any Legal Action which arises out of or in
connection with such an Event of Default.
(f) Subject to this Section 5.11, the Property Trustee shall
have none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 5.9.
(g) The Property Trustee must exercise the powers set forth
in this Section 5.11 in a manner that is consistent with the purposes and
functions of the Trust set out in Section 3.3, and the Property Trustee shall
not take any action that is inconsistent with the purposes and functions of the
Trust set out in Section 3.3.
SECTION 5.12 Certain Duties and Responsibilities of the Property
Trustee.
(a) The Property Trustee, before the occurrence of any Event
of Default and after the curing or waiving of all Events of Default that may
have occurred, shall undertake to perform only such duties and obligations as
are specifically set forth in this Trust Agreement and no implied covenants
shall be read into this Trust Agreement against the Property Trustee. In case
an Event of Default has occurred (that has not been cured or waived pursuant to
Section 2.6) of which a Responsible Officer of the Property Trustee has actual
knowledge, the Property Trustee shall exercise such rights and powers vested in
it by this Trust Agreement, and use the same degree of care and skill in its
exercise, as a prudent individual would exercise or use under the circumstances
in the conduct of his or her own affairs.
(b) No provision of this Trust Agreement shall be construed
to relieve the Property Trustee from liability for its own grossly negligent
action, its own grossly negligent
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failure to act, or its own willful misconduct, except that prior to the
occurrence of an Event of Default and after the curing or waiving of all such
Events of Default that may have occurred, in the absence of bad faith on the
part of the Property Trustee, the Property Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Property Trustee
and conforming to the requirements of this Trust Agreement; but in the case of
any such certificates or opinions that by any provision hereof are specifically
required to be furnished to the Property Trustee, the Property Trustee shall be
under a duty to examine the same to determine whether or not they conform on
their face to the requirements of this Trust Agreement.
(c) The Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property Trustee,
unless it shall be proved that the Property Trustee was grossly negligent in
ascertaining the pertinent facts.
(d) The Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a majority in liquidation amount
of the Trust Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Property Trustee, or exercising
any trust or power conferred upon the Property Trustee under this Trust
Agreement.
(e) The Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Depositor with
their respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for any default or misconduct of the Administrative Trustees
or the Depositor.
(f) No provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Trust Agreement or indemnity reasonably
satisfactory to the Property Trustee against such risk or liability is not
reasonably assured to it.
(g) The Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Convertible Debentures
and the Property Account shall be to deal with such property in a similar
manner as the Property Trustee deals with similar property for its own account,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement
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and the Trust Indenture Act.
(h) The Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree in writing with
the Depositor. Money held by the Property Trustee need not be segregated from
other funds held by it except in relation to the Property Account maintained by
the Property Trustee pursuant to Section 5.11(c)(i) and except to the extent
otherwise required by law.
(i) The Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency of the
Convertible Debentures or the payment of any taxes or assessments levied
thereon or in connection therewith.
SECTION 5.13 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 5.12:
(i) the Property Trustee may rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed, sent or presented by the proper party or
parties;
(ii) any direction or act of the Depositor or the
Administrative Trustees contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Trust
Agreement, the Property Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or omitting any
action hereunder, the Property Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the Depositor
or the Administrative Trustees;
(iv) the Property Trustee shall have no duty to see to
any recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel of
its choice or other experts and the advice or opinion of such counsel
and experts with respect to legal matters or advice within the scope
of such experts' area
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of expertise shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion, such counsel
may be counsel to the Depositor or any of its Affiliates, and may
include any of its employees. The Property Trustee shall have the
right at any time to seek instructions concerning the administration
of this Trust Agreement from any court of competent jurisdiction;
(vi) the Property Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by
this Trust Agreement at the request or direction of any Holder, unless
such Holder shall have provided to the Property Trustee adequate
security and indemnity, reasonably satisfactory to the Property
Trustee, against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Property Trustee's agents, nominees
or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Property Trustee; provided that,
nothing contained in this Section 5.13(a)(vi) shall be taken to
relieve the Property Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested in
it by this Trust Agreement;
(vii) the Property Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, security, bond, debenture,
note, other evidence of indebtedness or other paper or document, but
the Property Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the Property Trustee
shall not be responsible for any misconduct or negligence on the part
of any agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or
its agents hereunder shall bind the Trust and the Holders of the Trust
Securities, and the signature of the Property Trustee or its agents
alone shall be sufficient and effective to perform any such action and
no third party shall be required to inquire as to the authority of the
Property Trustee to so act or as to its compliance with any of the
terms and provisions of this Trust Agreement, both of which shall be
conclusively evidenced by the Property Trustee's or its agent's taking
such action;
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(x) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder the Property Trustee (A) may request
instructions from the Holders of the Trust Securities, which
instructions may only be given by the Holders of the same proportion
in liquidation amount of the Trust Securities as would be entitled to
direct the Property Trustee under the terms of the Trust Securities in
respect of such remedy, right or action, (B) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (C) shall be protected in acting in
accordance with such instructions;
(xi) except as otherwise expressly provided by this
Trust Agreement, the Property Trustee shall not be under any
obligation to take any action that is discretionary under the
provisions of this Trust Agreement; and
(xii) the Property Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Trust Agreement.
(b) No provision of this Trust Agreement shall be deemed to
impose any duty or obligation on the Property Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on
it, in any jurisdiction in which it shall be illegal, or in which the Property
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
(c) It is expressly understood and agreed by the parties
hereto that in fulfilling its obligations as Property Trustee hereunder on
behalf of the Trust, (a) any agreements or instruments executed or delivered by
Chase Bank of Texas, National Association are executed and delivered not in its
individual capacity but solely as Property Trustee under this Trust Agreement
in the exercise of the powers and authority conferred and vested in it, (b)
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 by Chase Bank of Texas, National
Association in its individual capacity but is made and intended for the purpose
of binding only the Trust, and (c) under no circumstances shall Chase Bank of
Texas, National
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Association in its individual capacity be personally liable for the payment of
any indebtedness or expenses of the Trust or be liable for the breach or
failure of any obligation, representation, warrant, or covenant made or
undertaken by the Trust under this Trust Agreement except if such breach or
failure is due to any gross negligence or wilful misconduct of the Trustee.
SECTION 5.14 Delaware Trustee.
(a) Notwithstanding any other provision of this Trust
Agreement other than Section 5.2, the Delaware Trustee shall not be entitled to
exercise any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Administrative Trustees or the Property Trustee
described in this Trust Agreement. Except as set forth in Section 5.2, the
Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of ss. 3807 of the Business Trust Act.
(b) It is expressly understood and agreed by the parties
hereto that in fulfilling its obligations as Delaware Trustee hereunder on
behalf of the Trust, (i) any agreements or instruments executed or delivered by
Chase Manhattan Bank Delaware are executed and delivered not in its individual
capacity but solely as Delaware Trustee under this Trust Agreement in the
exercise of the powers and authority conferred and vested in it, (ii) 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 by Chase Manhattan Bank Delaware in its individual
capacity but is made and intended for the purpose of binding only the Trust,
and (c) under no circumstances shall Chase Manhattan Bank Delaware in its
individual capacity be personally liable for the payment of any indebtedness or
expenses of the Trust or be liable for the breach or failure of any obligation,
representation, warrant, or covenant made or undertaken by the Trust under this
Trust Agreement except if such breach or failure is due to any gross negligence
or wilful misconduct of the Trustee.
SECTION 5.15 Meetings.
If there is more than one Administrative Trustee, meetings of
the Administrative Trustees shall be held from time to time upon the call of
any Administrative Trustee. Regular meetings of the Administrative Trustees may
be held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person meetings of the Administrative Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 48 hours before such meeting.
Notice of any telephonic meetings of the Administrative Trustees or any
committee thereof shall be hand delivered or otherwise delivered in writing
(including by
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facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of an Administrative Trustee at a meeting shall constitute a waiver
of notice of such meeting except where an Administrative Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Trust Agreement, any action of the Administrative
Trustees may be taken at a meeting by vote of a majority of the Administrative
Trustees present (whether in person or by telephone) and eligible to vote with
respect to such matter, provided that a Quorum is present, or without a meeting
by the unanimous written consent of the Administrative Trustees. In the event
there is only one Administrative Trustee, any and all action of such
Administrative Trustee shall be evidenced by a written consent of such
Administrative Trustee.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
If and to the extent that the Company makes a payment of
interest (including Compounded Interest), Additional Interest, premium and/or
principal on the Convertible Debentures held by the Property Trustee, or
Liquidated Damages, if any, (the amount of any such payment being a "Payment
Amount"), the Property Trustee shall and is directed, to the extent funds are
available for that purpose, to make a distribution (a "Distribution") of the
Payment Amount to Holders of Preferred Securities and Common Securities in
accordance with the preferences set forth in the respective terms of such Trust
Securities, as described in Annex I hereto.
ARTICLE VII
THE TRUST SECURITIES
SECTION 7.1 Title and Terms.
The Administrative Trustees shall on behalf of the Trust
issue one class of convertible preferred securities, representing undivided
beneficial interests in the assets of the Trust (the "Preferred Securities"),
and one class of convertible common securities, representing undivided
beneficial interests in the assets of the Trust (the "Common
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Securities"), each having such terms (the "Terms") as are set forth in Annex I.
The Trust shall issue no securities or other interests in the assets of the
Trust other than the Preferred Securities and the Common Securities. The
aggregate number of Preferred Securities outstanding at any time shall not
exceed the number set forth in the Terms in Annex I hereto.
The Terms of the Trust Securities set forth in Annex I and
the forms of Certificates set forth in Exhibits A-1 and A-2 are part of the
terms of this Trust Agreement and to the extent applicable, the Property
Trustee and the Depositor, by their execution and delivery of this Trust
Agreement, expressly agree to such Terms and to be bound thereby.
SECTION 7.2 General Provisions Regarding the Trust Securities.
(a) The consideration received by the Trust for the issuance of
the Trust Securities shall constitute a contribution to the capital of the
Trust and shall not constitute a loan to the Trust.
(b) Upon issuance of the Trust Securities as provided in this
Trust Agreement, the Trust Securities so issued shall be validly issued, fully
paid and nonassessable.
(c) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this Trust
Agreement, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Trust Agreement.
SECTION 7.3 General Form of Certificates.
The Preferred Security Certificates and the Property Trustee's
certificate of authentication shall be substantially in the form of Exhibit A-1
and the Common Security Certificates shall be substantially in the form of
Exhibit A-2, each of which is hereby incorporated in and expressly made a part
of this Trust Agreement.
The Certificates may have letters, numbers, notations or other
marks of identification or designation and such legends or endorsements
required by law, stock exchange rule, agreements to which the Trust is subject,
if any, or usage (provided that any such notation, legend or endorsement is in
a form acceptable to the Trust). The Trust at the direction of the Depositor
shall furnish any such legend not contained in Exhibit A-1 to the Property
Trustee in writing.
The definitive Certificates shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities
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exchange on which the Trust Securities may be listed, all as determined by the
Administrative Trustees, as evidenced by their execution thereof. The Trust
shall issue no Trust Securities in bearer form.
SECTION 7.4 Form of Preferred Securities Certificates; Global
Certificates.
(a) Preferred Securities initially sold to qualified
institutional buyers in reliance on Rule 144A under the Securities Act ("Rule
144A Preferred Securities") initially will be represented by one or more
certificates in registered, global form (collectively, the "Restricted Global
Certificate"). Preferred Securities initially sold in offshore transactions in
reliance on Regulation S ("Regulation S Preferred Securities") initially will
be represented by one or more certificates in registered, global form
(collectively, the "Regulation S Global Certificate" and, together with the
Restricted Global Certificate, the "Global Certificates"). Preferred Securities
initially transferred, in accordance with Section 8.2, in a manner exempt from
the registration requirements of the Securities Act will be exchanged for
Preferred Securities in registered, certificated form (the "Certificated
Preferred Securities"). The Trust Securities Certificates shall be executed on
behalf of the Trust by manual or facsimile signature of at least one
Administrative Trustee and authenticated by the Property Trustee. Trust
Securities Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefit of this Trust Agreement, notwithstanding that such individuals
or any of them shall have ceased to be so authorized prior to the delivery of
such Trust Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Holder, and shall be entitled to the
rights and subject to the obligations of a Holder hereunder, upon due
registration of such Trust Securities Certificate in such transferee's name
pursuant to Section 8.1(d).
(b) Every Global Certificate authenticated and delivered
hereunder shall bear a legend in substantially the following form, in capital
letters and bold-face type:
THIS SECURITY IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF
THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED,
AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF
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ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST
AGREEMENT.
(c) If the Depositary is the Depository Trust Company, the
Global Certificate authenticated and delivered hereunder shall also bear a
legend in substantially the following form, in capital letters and bold-face
type:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED SIGNATORY
OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE TRUST OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
SECTION 7.5 Execution and Dating of Certificates.
The Certificates shall be signed on behalf of the Trust by an
Administrative Trustee. In case any Administrative Trustee who shall have
signed any of the Certificates shall cease to be such Administrative Trustee
before the Certificates so signed shall be delivered by the Trust, such
Certificates nevertheless may be delivered as though the person who signed such
Certificates had not ceased to be such Administrative Trustee; and any
Certificates may be signed on behalf of the Trust by such persons who, at the
actual date of execution of such Certificate, shall be the Administrative
Trustees of the Trust, although at the date of the execution and delivery of
the Trust Agreement any such person was not such an Administrative Trustee.
Each Preferred Security shall be dated the date of its authentication.
One Administrative Trustee shall sign the Preferred Security
Certificates for the Trust by manual or facsimile signature. Unless otherwise
determined by the Trust, such signature shall, in the case of Common Security
Certificates, be a manual signature.
SECTION 7.6 Global Securities; Non-Global Securities; Common
Securities Certificate.
(a) Each Global Certificate authenticated under this Trust
Agreement shall be registered in the name of the
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Clearing Agency designated by the Depositor for such Global Certificate or a
nominee thereof and delivered to such Clearing Agency or a nominee thereof or
custodian therefor, and each such Global Certificate shall constitute a
Preferred Security for all purposes of this Trust Agreement.
(b) If a Global Certificate is to be exchanged for
Certificated Preferred Securities or canceled in whole, it shall be surrendered
by or on behalf of the Clearing Agency, its nominee or custodian to the
Property Trustee, as Registrar, for exchange or cancellation as provided in
this Article 7. If any Global Certificate is to be exchanged for Certificated
Preferred Securities or cancelled in part, or if another Preferred Security is
to be exchanged in whole or in part for a beneficial interest in any Global
Certificate, in each case, as provided in Section 8.2, then either (i) such
Global Certificate shall be so surrendered for exchange or cancellation as
provided in this Article 7 or (ii) the principal amount thereof (or number of
Preferred Securities represented thereby) shall be reduced or increased by an
amount equal to the portion thereof to be so exchanged or cancelled, or equal
to the principal amount of (or number of securities represented by) such
Certificated Preferred Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on the
records of the Property Trustee, as Registrar, whereupon the Property Trustee,
in accordance with the Applicable Procedures, shall instruct the Clearing
Agency or its authorized representative to make a corresponding adjustment to
its records. Upon any such surrender or adjustment of a Global Certificate, an
Administrative Trustee shall execute on behalf of the Trust by manual or
facsimile signature, and the Property Trustee shall, subject to Section 8.2 and
as otherwise provided in this Article 7, authenticate and deliver any Preferred
Securities issuable in exchange for such Global Certificate (or any portion
thereof) to or upon the written order of, and registered in such names as may
be directed by, the Clearing Agency or its authorized representative. Upon the
request of the Property Trustee in connection with the occurrence of any of the
events specified in the preceding paragraph, the Depositor shall promptly make
available to the Property Trustee a reasonable supply of Preferred Securities
that are not in the form of Global Certificates but are in certificated form.
The Property Trustee shall be entitled to conclusively rely upon any order,
direction or request of the Clearing Agency or its authorized representative
which is given or made pursuant to this Article 7 if such order, direction or
request is given or made in accordance with the Applicable Procedures.
(c) Every Preferred Security authenticated and delivered upon
registration of, transfer of, or in exchange for or in lieu of, a Global
Certificate or any portion thereof, whether pursuant to this Article 7 or
otherwise, shall be authenticated and delivered in the form of, and shall
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be, a Global Certificate, unless such Preferred Security is registered in the
name of a Person other than the Clearing Agency for such Global Certificate or
a nominee thereof.
(d) The Clearing Agency or its nominee, as registered owner
of a Global Certificate, shall be the holder of such Global Certificate for all
purposes under this Trust Agreement and the Preferred Securities, and owners of
beneficial interests in a Global Certificate shall hold such interests pursuant
to the Applicable Procedures. Accordingly, any such Owner's beneficial interest
in a Global Certificate will be shown only on, and the transfer of such
interest shall be effected only through, records maintained by the Clearing
Agency or its nominee or its participants and such owners of beneficial
interests in a Global Certificate will not be considered the owners or holders
of such Global Certificate for any purpose of this Trust Agreement or the
Preferred Securities.
(e) A single Common Securities Certificate representing the
Common Securities shall initially be issued to the Depositor in the form of a
definitive Common Securities Certificate.
SECTION 7.7 Definitive Preferred Security Certificates.
Notwithstanding any other provision in this Trust Agreement,
no Global Certificate may be exchanged in whole or in part for Preferred
Securities registered, and no transfer of a Global Certificate in whole or in
part may be registered, in the name of any Person other than the Clearing
Agency for such Global Certificate or a nominee thereof unless (i) such
Clearing Agency (A) has notified the Trust and the Depositor that it is
unwilling or unable to continue as Clearing Agency for such Global Certificate
or (B) has ceased to be a clearing agency registered as such under the Exchange
Act of 1934, as amended, and in either case the Trust and the Depositor
thereupon fail to appoint a successor Clearing Agency, (ii) the Trust and the
Depositor, at their option, notify the Property Trustee in writing that it
elects to cause the issuance of the Preferred Securities in certificated form
or (iii) there shall have occurred and be continuing an Event of Default or any
event which after notice or lapse of time or both would be an Event of Default.
In all cases, Certificated Preferred Securities delivered in exchange for any
Global Certificate or beneficial interests therein will be registered in the
names, and issued in any approved denominations, requested by or on behalf of
the Clearing Agency (in accordance with its customary procedures).
SECTION 7.8 Restrictive Legends.
(a) The Restricted Global Certificate and the Certificated
Preferred Securities shall bear the following legend (the "Restricted
Securities Legend") unless the
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Depositor determines otherwise in accordance with applicable law.
"THE SECURITIES EVIDENCED HEREBY AND THE COMMON STOCK ISSUABLE
UPON THEIR CONVERSION AND THE CONVERTIBLE DEBENTURES THAT MAY BE ISSUED IN
EXCHANGE THEREFOR HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE TRANSFEROR AND ANY
PERSON ACTING ON BEHALF OF SUCH TRANSFEROR REASONABLY BELIEVE IS A QUALIFIED
INSTITUTIONAL BUYER ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A UNDER THE
SECURITIES ACT, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE
904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN COMPLIANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS."
(b) The Regulation S Preferred Securities shall bear the following
legend (the "Regulation S Legend") unless the Depositor determines otherwise in
accordance with the applicable law:
"THE PREFERRED SECURITIES, THE CONVERTIBLE DEBENTURES, THE SHARES
OF COMPANY COMMON STOCK ISSUABLE UPON CONVERSION OF THE PREFERRED SECURITIES
AND THE CONVERTIBLE DEBENTURES, AND THE GUARANTEE (COLLECTIVELY, THE
"SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON UNLESS SUCH SECURITIES ARE
REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS THEREOF IS AVAILABLE."
SECTION 7.9 Temporary Certificates.
Until definitive Certificates are ready for delivery, the
Trust may prepare and, in the case of the Preferred Securities, the Property
Trustee shall authenticate temporary Certificates. Temporary Certificates shall
be substantially in the form of definitive Certificates but may have variations
that the Trust considers appropriate for temporary Certificates. Without
unreasonable delay, the Trust shall prepare and, in the case of the Preferred
Securities, the Property Trustee shall authenticate definitive Certificates in
exchange for temporary Certificates.
SECTION 7.10 Registrar, Paying Agent and Conversion Agent.
In the event that the Preferred Securities are not in book-entry
only form, the Trust shall maintain in the
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Borough of Manhattan, City of New York, State of New York, an office or agency
where Preferred Securities may be presented for registration of transfer or
from exchange ("Registrar"), (ii) an office or agency where Preferred
Securities may be presented for payment ("Paying Agent"). The Trust shall
maintain an office or agency where Securities may be presented for conversion
("Conversion Agent"). The Registrar shall keep a register of the Preferred
Securities and of their transfer and exchange. The Trust may appoint the
Registrar, the Paying Agent and the Conversion Agent and may appoint one or
more co- registrars, one or more additional paying agents and one or more
additional conversion agents in such other locations as it shall determine. The
term "Paying Agent" includes any additional paying agent and the term
"Conversion Agent" includes any additional conversion agent. The Trust may
change any Paying Agent, Registrar, co-registrar or Conversion Agent without
prior notice to any Holder. The Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Administrative Trustees. The
Trust shall notify the Property Trustee of the name and address of any Agent
not a party to this Trust Agreement. If the Trust fails to appoint or maintain
another entity as Registrar, Paying Agent or Conversion Agent, the Property
Trustee shall act as such. The Trust or any of its Affiliates may act as Paying
Agent, Registrar, or Conversion Agent. The Trust shall act as Paying Agent,
Registrar, co-registrar, and Conversion Agent for the Common Securities.
The Trust initially appoints the Property Trustee as
Registrar, Paying Agent and Conversion Agent for the Preferred Securities. The
Property Trustee shall be entitled to the protections of Sections 5.12 and 5.13
and Article IX in its capacity as Registrar, Paying Agent and Conversion Agent.
SECTION 7.11 Paying Agent to Hold Money in Trust.
The Trust shall require each Paying Agent other than the
Property Trustee to agree in writing that the Paying Agent will hold in trust
for the benefit of Holders or the Property Trustee all money held by the Paying
Agent for the payment of principal or distribution on the Trust Securities, and
will notify the Property Trustee if there are insufficient funds. While any
such insufficiency continues, the Property Trustee may require a Paying Agent
to pay all money held by it to the Property Trustee. The Trust at any time may
require a Paying Agent to pay all money held by it to the Property Trustee and
to account for any money disbursed by it. Upon payment over to the Property
Trustee, the Paying Agent (if other than the Trust or an Affiliate of the
Trust) shall have no further liability for the money. If the Trust or the
Depositor or an Affiliate of the Trust or the Depositor acts as Paying Agent,
it shall segregate and hold in a separate trust fund for the benefit of the
Holders all money held by it as Paying Agent.
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SECTION 7.12 Outstanding Preferred Securities.
The Preferred Securities outstanding at any time are all the
Preferred Securities authenticated by the Property Trustee except for those
cancelled by it, those delivered to it for cancellation, and those described in
this Section 7.12 as not outstanding.
If a Preferred Security is replaced or paid pursuant to
Section 8.3, it ceases to be outstanding unless the Property Trustee receives
proof satisfactory to it that the replaced, paid or purchased Preferred
Security is held by a bona fide purchaser.
If Preferred Securities are considered paid in accordance
with the terms of this Trust Agreement, they cease to be outstanding and
interest on them ceases to accrue.
A Preferred Security does not cease to be outstanding because
one of the Trust, the Depositor or an Affiliate of the Depositor holds the
Preferred Security.
SECTION 7.13 Preferred Securities in Treasury.
In determining whether the Holders of the required amount of
Trust Securities have concurred in any direction, waiver or consent, Preferred
Securities owned by the Trust, the Depositor or an Affiliate of the Depositor,
as the case may be, shall be disregarded and deemed not to be outstanding,
except that for the purposes of determining whether the Property Trustee shall
be fully protected in relying on any such direction, waiver or consent, only
Preferred Securities which the Property Trustee knows are so owned shall be so
disregarded.
SECTION 7.14 Notices to Clearing Agency.
Whenever a notice or other communication to the Holders of
Preferred Securities is required under this Trust Agreement, the Administrative
Trustees shall, in the case of any Global Preferred Security, give all such
notices and communications specified herein to be given to the Preferred
Security Holders to the Depositary, and shall have no notice obligations to the
Preferred Security Beneficial Owners.
SECTION 7.15 Appointment of Successor Clearing Agency.
If the Depositary elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the
Administrative Trustees may, in their sole discretion, appoint a successor
Clearing Agency with respect to such Preferred Securities.
SECTION 7.16 Deemed Security Holders.
The Trustees and any Agent may treat the Person in whose name
any Certificate shall be registered on the books
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and records of the Trust as the sole holder of such Certificate and of the
Trust Securities represented by such Certificate for purposes of receiving
Distributions and for all other purposes whatsoever and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such
Certificate or in the Trust Securities represented by such Certificate on the
part of any Person, whether or not the Trust shall have actual or other notice
thereof.
ARTICLE VIII
TRANSFERS, EXCHANGES AND CANCELLATIONS
OF TRUST SECURITIES
SECTION 8.1 General.
(a) Where Preferred Security Certificates are presented to
the Registrar or a co-registrar with a request to register a transfer or to
exchange them for an equal number of Preferred Securities represented by
different certificates, the Registrar shall register the transfer or make the
exchange if its requirements for such transactions are met. To permit
registrations of transfers and exchanges, the Trust shall issue and the
Property Trustee shall authenticate Preferred Security Certificates at the
Registrar's request.
(b) Trust Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in this Trust
Agreement and in the Terms set forth in Annex I. Any transfer or purported
transfer of any Security not made in accordance with this Trust Agreement shall
be null and void.
(c) Subject to this Article VIII, the Depositor and any
Related Party may only transfer Common Securities to the Depositor or a Related
Party of the Depositor; provided that, any such transfer is subject to the
condition precedent that the transferor obtain the written opinion of
nationally recognized independent counsel experienced in such matters that such
transfer would not cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States
federal income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the
transferee would become an Investment Company.
(d) The Administrative Trustees shall provide for the
registration of Trust Securities and of transfers of Trust Securities, which
will be effected without charge but
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only upon payment (with such indemnity as the Administrative Trustees may
require) in respect of any tax or other governmental charges that may be
imposed in relation to it. Upon surrender for registration of transfer of any
Certificates, the Administrative Trustees shall cause one or more new
Certificates to be issued in the name of the designated transferee or
transferees. Every Certificate surrendered for registration of transfer shall
be accompanied by a written instrument of transfer in form satisfactory to the
Administrative Trustees duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Certificate surrendered for registration of
transfer shall be canceled by the Administrative Trustees. A transferee of a
Certificate shall be entitled to the rights and subject to the obligations of a
Holder hereunder upon the receipt by such transferee of a Certificate. By
acceptance of a Certificate, each transferee shall be deemed to have agreed to
be bound by this Trust Agreement.
(e) The Trust shall not be required (i) to issue, register
the transfer of or exchange Preferred Security Certificates during a period
beginning at the opening of business 15 days before the day of any selection of
Preferred Securities for redemption and ending at 5:00 p.m. (New York City
time) on the day of selection, or (ii) to register the transfer or exchange of
any Preferred Security so selected for redemption in whole or in part, except
the unredeemed portion of any Preferred Security being redeemed in part.
SECTION 8.2 Certain Transfers and Exchanges.
(a) Notwithstanding any other provision of this Trust
Agreement or the Preferred Securities, transfers and exchanges of Preferred
Securities and beneficial interests in a Global Certificate of the kinds
specified in this Section 8.2 shall be made only in accordance with this
Section 8.2.
(i) Restricted Global Certificate to Regulation S Global
Certificate. If the owner of a beneficial interest in the Restricted
Global Certificate wishes at any time to transfer such interest to a
Person who wishes to acquire the same in the form of a beneficial
interest in the Regulation S Global Certificate, such transfer may be
effected in accordance with provision of this Clause 8.2(i) and Clause
8.2 (vi) below and subject to the Applicable Procedures. Upon receipt
by the Property Trustee, as Registrar, of (A) a written order given by
the Clearing Agency or its authorized representative directing that a
beneficial interest in the Regulation S Global Certificate in a
specified liquidation amount (or number of Preferred Securities) be
credited to a
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specified participant's account and that a beneficial interest in the
Restricted Global Certificate in an equal liquidation amount (or
number of Preferred Securities) be debited from another specified
participant's account and (B) a Regulation S Certificate, satisfactory
to the Property Trustee and duly executed by the owner of such
beneficial interest in the Restricted Global Certificate or his
attorney duly authorized in writing, then the Property Trustee, as
Registrar but subject to Clause 8.2 (vi) below, shall reduce the share
number of the Restricted Global certificate and increase the share
number of the Regulation S Global Certificate by such specified
liquidation amount (or number of Preferred Securities) as provided in
Section 7.6(b).
(ii) Regulation S Global Certificate to Restricted
Global Certificate. If the owner of a beneficial interest in the
Regulation S Global Certificate wishes at any time to transfer such
interest to a Person who wishes to acquire the same in the form of a
beneficial interest in the Restricted Global Certificate, such
transfer may be effected only in accordance with this Clause 8.2(ii)
and subject to the Applicable Procedures. Upon receipt by the Property
Trustee, as Registrar, of (A) a written order given by the Clearing
Agency or its authorized representative directing that a beneficial
interest in the Restricted Global Certificate in a specified
Liquidation Amount (or number of Preferred Securities) be credited to
a specified participant's account and that a beneficial interest in
the Regulation S Global Certificate in an equal liquidation amount (or
number of Preferred Securities) be debited from another specified
participant's account and (B) if such transfer is to occur during the
Restricted Period, a Restricted Securities Certificate, satisfactory
to the Property Trustee and duly executed by the owner of such
beneficial interest in the Regulation S Global certificate or his
attorney duly authorized in writing, then the Property Trustee, as
Registrar, shall reduce the liquidation amount (or number of Preferred
Securities) of the Regulation S Global Certificate and increase the
liquidation amount of (or number of Preferred Securities represented
by) the Restricted Global Certificate by such specified liquidation
amount (or number of securities) as provided in Section 7.6(b).
(iii) Restricted Non-Global Certificate to
Restricted Global Certificate or Regulation S Global Certificate. If
the Holder of a Restricted Security (other than a Global Certificate)
wishes at any time to transfer all or any portion of such Restricted
Security
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to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Restricted Global Certificate or the
Regulation S Global Certificate, such transfer may be effected only in
accordance with the provisions of this Clause 8.2 (iii) and Clause 8.2
(vi) below and subject to the Applicable Procedures. Upon receipt by
the Property Trustee, as Registrar, of (A) such Restricted Security as
provided in Section 7.6 and written instructions satisfactory to the
Property Trustee directing that a beneficial interest in the
Restricted Global Certificate or Regulation S Global Certificate in a
specified liquidation amount (or number of Preferred Securities) not
greater than the amount of such Preferred Security be credited to a
specified participant's account and (B) a Restricted Securities
Certificate, if the specified account is to be credited with a
beneficial interest in the Restricted Global Certificate, or a
Regulation S Certificate, if the specified account is to be credited
with a beneficial interest in the Regulation S Global Certificate, in
either case satisfactory to the Property Trustee and duly executed by
such Holder or his attorney duly authorized in writing, then the
Property Trustee, as Registrar but subject to Clause 8.2 (vi) below,
shall cancel such Restricted Security (and issue a new Restricted
Security in respect of any untransferred portion thereof) as provided
in Section 7.6(b) and increase the liquidation amount of (or number of
Preferred Securities represented by) the Restricted Global Certificate
or the Regulation S Global Certificate, as the case may be, by the
specified liquidation amount (or number of securities) as provided in
Section 7.6(b).
(iv) Regulation S Non-Global Certificate to
Restricted Global Certificate or Regulation S Global Certificate. If
the Holder of a Regulation S Preferred Security (other than a Global
Certificate) wishes at any time to transfer all or any portion of such
Regulation S Preferred Security to a Person who wishes to acquire the
same in the form of a beneficial interest in the Restricted Global
Certificate or the Regulation S Global Certificate, such transfer may
be effected only in accordance with this Clause 8.2(iv) and Clause
8.2(vi) below and subject to the Applicable Procedures. Upon receipt
by the Property Trustee, as Registrar, of (A) such Regulation S
Preferred Security and written instructions satisfactory to the
Property Trustee directing that a beneficial interest in the
Restricted Global Certificate or Regulation S Global Certificate in a
specified liquidation amount (or number of Preferred Securities) not
greater than the amount of such Preferred Security be credited to a
specified participant's account and (B) if the transfer
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is to occur during the Restricted Period and the specified account to
be credited with a beneficial interest in the Restricted Global
Certificate, a Restricted Securities Certificate satisfactory to the
Property Trustee and duly executed by such Holder or his attorney duly
authorized in writing then the Property Trustee, as Registrar but
subject to Clause 8.2(vi) below, shall cancel such Regulation S
Preferred Security (and issue a new Regulation S Preferred Security in
respect of any untransferred portion thereof) as provided in Section
7.6(b) and increase the liquidation amount of (or number of Preferred
Securities represented by) the Restricted Global Certificate or the
Regulation S Global Certificate, as the case may be, by the specified
liquidation amount (or number of securities) as provided in Section
7.6(b).
(v) Non-Global Certificate to Non-Global
Certificate. A Preferred Security that is not a Global Certificate may
be transferred, in whole or in part, to a Person who takes delivery in
the form of another Security that is not a Global Certificate as
provided in Section 7.6, provided that, if the Security to be
transferred in whole or in part is a Restricted Security, or is a
Regulation S Preferred Security and the transfer is to occur during
the Restricted Period, then the Property Trustee shall have received
(A) a Restricted Securities Certificate, satisfactory to the Property
Trustee and duly executed by the transferor Holder or his attorney
duly authorized in writing, in which case the transferee Holder shall
take delivery in the form of a Restricted Security, or (B) a
Regulation S Certificate, satisfactory to the Property Trustee and
duly executed by the transferor Holder or his attorney duly authorized
in writing, in which case the transferee Holder shall take delivery in
the form of a Regulation S Preferred Security (subject in every case
to Section 8.2(b)).
(vi) Regulation S Global Certificate to be Held
Through Euroclear or Cedal during Restricted Period. The Depositor
shall use its best efforts to cause the Clearing Agency to ensure
that, until the expiration of the Restricted Period, beneficial
interests in the Regulation S Global Certificate may be held only in
or through accounts maintained at the Clearing Agency by Euroclear or
Cedel (or by participants acting for the account thereof), and no
Person shall be entitled to effect any transfer or exchange that would
result in any such interest being held otherwise than in or through
such an account; provided that this Clause 8.2(vi) shall not prohibit
any transfer or exchange of such an interest in
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accordance with Clause 8.2(iii) or (iv) above.
(b) Securities Act Legends. Rule 144A Securities,
Certificated Preferred Securities and their respective Successor Securities
shall bear a Restricted Securities Legend as set forth in Section 7.8, and the
Regulation S Preferred Securities and their Successor Securities shall bear a
Regulation S Legend as set forth in Section 7.8, subject to the following:
(i) subject to the following Clauses of this Section
8.2(b), a Preferred Security or any portion thereof which is
exchanged, upon transfer or otherwise, for a Global Certificate or any
portion thereof shall bear the Securities Act Legend borne by such
Global Certificate while represented thereby;
(ii) subject to the following Clauses of this Section
8.2(b), a new Preferred Security which is not a Global Certificate and
is issued in exchange for another Preferred Security (including, a
Global Certificate) of any portion thereof, upon transfer or
otherwise, shall bear the Securities Act Legend borne by such other
Preferred Security, provided that, if such new Preferred Security is
required pursuant to Section 8.2(a)(v) to be issued in the form of a
Restricted Security, it shall bear a Restricted Securities Legend and,
if such new Preferred Security is so required to be issued in the form
of a Regulation S Preferred Security, it shall bear a Regulation S
Legend;
(iii) Any Preferred Securities which are sold or
otherwise disposed of pursuant to an effective registration statement
under the Securities Act, together with their Successor Securities
shall not bear a Securities Act Legend; the Depositor shall inform the
Property Trustee in writing of the effective date of any such
registration statement registering the Preferred Securities under the
Securities Act and shall notify the Property Trustee at any time when
prospectuses may not be delivered with respect to Preferred Securities
to be sold pursuant to such registration statement. The Property
Trustee shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the aforementioned
registration statement;
(iv) at any time after the Preferred Securities may be
freely transferred without registration under the Securities Act or
without being subject to transfer restrictions pursuant to the
Securities Act, a new Preferred Security which does not bear a
Securities Act Legend may be issued in exchange for or in lieu of a
Preferred Security (other than a
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Global Certificate) or any portion thereof which bears such a legend
if the Property Trustee has received an Unrestricted Securities
Certificate, satisfactory to the Property Trustee and duly executed by
the Holder of such legended Preferred Security or his attorney duly
authorized in writing, and after such date and receipt of such
certificate, an Administrative Trustee shall execute on behalf of the
Trust by manual or facsimile signature, and the Property Trustee shall
authenticate and deliver such a new Preferred Security in exchange for
or in lieu of such other Preferred Security as provided in this
Article 8;
(v) a new Preferred Security which does not bear a
Securities Act Legend may be issued in exchange for or in lieu of a
Preferred Security (other than a Global Certificate) or any portion
thereof which bears such a legend if, in the Depositor's judgment,
placing such a legend upon such new Preferred Security is not
necessary to ensure compliance with the registration requirements of
the Securities Act, and an Administrative Trustee shall execute on
behalf of the Trust by manual or facsimile signature, and the Property
Trustee, at the written direction of the Depositor, shall authenticate
and deliver such a new Preferred Security as provided in this Article
8; and
(vi) notwithstanding the foregoing provisions of this
Section 8.2(b), a Successor Security of a Preferred Securities that
does not bear a particular form of Securities Act Legend shall not
bear such form of legend unless the Depositor has reasonable cause to
believe that such Successor Security is a "restricted security" within
the meaning of Rule 144, in which case an Administrative Trustee shall
execute on behalf of the Trust by manual or facsimile signature, and
the Property Trustee, at the written direction of the Depositor, shall
authenticate and deliver a new Preferred Security bearing a Restricted
Securities Legend in exchange for such Successor Security as provided
in this Article 8.
SECTION 8.3 Mutilated, Destroyed, Lost or Stolen Certificates;
Replacement Securities.
If the holder of a Trust Security claims that the Certificate
representing such Trust Security has been lost, destroyed or wrongfully taken
or if such Certificate is mutilated and is surrendered to the Trust or in the
case of the Preferred Securities to the Property Trustee, the Trust shall issue
and the Property Trustee shall authenticate a replacement Certificate if the
Property Trustee's and the Trust's requirements, as the case may be, are met.
If required by the Property Trustee or the Trust, an indemnity bond must be
sufficient in the judgment of both to protect
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the Trustees, the Property Trustee, the Depositor or any authenticating agent
from any loss which any of them may suffer if a Certificate is replaced. The
Company may charge for its expenses in replacing a Certificate.
In case any such mutilated, destroyed, lost or stolen Trust
Security has become or is about to become due and payable, the Depositor in its
discretion may, instead of issuing a new Certificate, pay such Trust Security.
Every replacement Certificate is an additional obligation of
the Trust.
SECTION 8.4 Cancellation of Preferred Security Certificates.
The Trust at any time may deliver Preferred Security
Certificates to the Property Trustee for cancellation. The Registrar, Paying
Agent and Conversion Agent shall forward to the Property Trustee any Preferred
Securities surrendered to them for registration of transfer, redemption,
conversion, exchange or payment. The Property Trustee shall promptly cancel all
Preferred Securities surrendered for registration of transfer, redemption,
conversion, exchange, payment, replacement or cancellation and shall dispose of
cancelled Preferred Securities as the Trust directs. The Trust may not issue
new Preferred Securities to replace Preferred Securities that it has paid or
that have been delivered to the Property Trustee for cancellation or that any
holder has converted.
ARTICLE IX
LIMITATION OF LIABILITY OF
HOLDERS OF TRUST SECURITIES, TRUSTEES AND OTHERS
SECTION 9.1 Liability.
(a) Except as expressly set forth in this Trust Agreement, the
Securities Guarantees and the terms of the Trust Securities, the Depositor
shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Trust Securities which shall be made solely from assets of the Trust;
or
(ii) required to pay to the Trust or to any Holder of Trust
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Depositor shall be liable for all of the debts and
obligations of the Trust (other than with respect
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to the Trust Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to ss. 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability as is extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware.
SECTION 9.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in
a manner such Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by this Trust Agreement or
by law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's gross
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Trust Securities might properly be paid.
SECTION 9.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Trust Agreement shall not be liable to the Trust or to any other Covered
Person for its good faith reliance on the provisions of this Trust Agreement.
The provisions of this Trust Agreement, to the extent that they restrict the
duties and liabilities of an Indemnified Person otherwise existing at law or in
equity (other than the duties imposed on the Property Trustee under the Trust
Indenture Act), are agreed by the parties hereto to replace such other duties
and liabilities of such Indemnified Person.
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(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered Person or
(ii) whenever this Trust Agreement or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Trust Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative interest of
each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by the Indemnified Person shall not constitute a breach of this
Trust Agreement or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Trust Agreement an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own interests, and
shall have no duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this
Trust Agreement or by applicable law.
SECTION 9.4 Indemnification.
(a) (i) The Company shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that he is or was a Company
Indemnified Person against
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expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Trust, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Company Indemnified Person did not act in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
(ii) The Company shall indemnify, to the full extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a
Company Indemnified Person against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
best interests of the Trust and except that no such indemnification
shall be made in respect of any claim, issue or matter as to which
such Company Indemnified Person shall have been adjudged to be liable
to the Trust unless and only to the extent that the Court of Chancery
of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Company Indemnified Person shall
be successful on the merits or otherwise (including dismissal of an
action without prejudice or the settlement of an action without
admission of liability) in defense of any action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 9.4(a), or in
defense of any claim, issue or matter therein, he shall be
indemnified, to the full extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
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(iv) Any indemnification under paragraphs (i) and (ii) of
this Section 9.4(a) (unless ordered by a court) shall be made by the
Company only as authorized in the specific case upon a determination
that indemnification of the Company Indemnified Person is proper in
the circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such determination shall
be made (1) by the Administrative Trustees by a majority vote of a
quorum consisting of such Administrative Trustees who were not parties
to such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested
Administrative Trustees so directs, by independent legal counsel in a
written opinion, or (3) by the Holders of the Common Securities of the
Trust.
(v) Expenses (including attorneys' fees) incurred by a
Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to
in paragraphs (i) and (ii) of this Section 9.4(a) shall be paid by the
Company in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
Company Indemnified Person to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the Company
as authorized in this Section 9.4(a). Notwithstanding the foregoing,
no advance shall be made by the Company if a determination is
reasonably and promptly made (i) by the Administrative Trustees by a
majority vote of a quorum of disinterested Administrative Trustees,
(ii) if such a quorum is not obtainable, or, even if obtainable, if a
quorum of disinterested Administrative Trustees so directs, by
independent legal counsel in a written opinion or (iii) by the Holders
of the Common Securities of the Trust, that, based upon the facts
known to the Administrative Trustees, counsel or the Holders of the
Common Securities at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such person
did not believe to be in or not opposed to the best interests of the
Trust, or, with respect to any criminal proceeding, that such Company
Indemnified Person believed or had reasonable cause to believe his
conduct was unlawful. In no event shall any advance be made in
instances where the Administrative Trustees, independent legal counsel
or the Holders of the Common Securities reasonably determine that such
person deliberately breached his duty to the Trust or the Holders of
the Common or Preferred Securities.
(vi) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this Section
9.4(a) shall not be deemed
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exclusive of any other rights to which those seeking indemnification
and advancement of expenses may be entitled under any agreement, vote
of stockholders or disinterested directors of the Company or Holders
of the Preferred Securities of the Trust or otherwise, both as to
action in his official capacity and as to action in another capacity
while holding such office. All rights to indemnification under this
Section 9.4(a) shall be deemed to be provided by a contract between
the Company and each Company Indemnified Person who serves in such
capacity at any time while this Section 9.4(a) is in effect. Any
repeal or modification of this Section 9.4(a) shall not affect any
rights or obligations then existing.
(vii) The Company or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or
not the Company would have the power to indemnify him against such
liability under the provisions of this Section 9.4(a).
(viii) For purposes of this Section 9.4(a), references to
"the Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any person
who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent
of another entity, shall stand in the same position under the
provisions of this Section 9.4(a) with respect to the resulting or
surviving entity as he would have with respect to such constituent
entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 9.4(a) shall, unless
otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a Company Indemnified Person and shall
inure to the benefit of the heirs, executors and administrators of
such a person.
(b) The Depositor agrees to indemnify the (i) Property Trustee, (ii)
the Delaware Trustee, (iii) any Affiliate of the Property Trustee and the
Delaware Trustee, and (iv) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Property Trustee and the Delaware Trustee (each of the Persons in (i) through
(iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold
each
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Fiduciary Indemnified Person harmless against, any and all loss, liability or
expense including taxes (other than taxes based on the income of such Fiduciary
Indemnified Person) incurred without gross negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration or the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 9.4(b) shall survive the satisfaction
and discharge of this Trust Agreement.
SECTION 9.5 Outside Businesses.
Any Covered Person, the Depositor, the Delaware Trustee and
its Affiliates and the Property Trustee and its Affiliates may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders of Trust Securities shall have no rights
by virtue of this Trust Agreement in and to such independent ventures or the
income or profits derived therefrom, and the pursuit of any such venture, even
if competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Depositor, the Delaware Trustee, its
Affiliates, or the Property Trustee or its Affiliates shall be obligated to
present any particular investment or other opportunity to the Trust even if
such opportunity is of a character that, if presented to the Trust, could be
taken by the Trust, and any Covered Person, the Depositor, the Delaware
Trustee, its Affiliates and the Property Trustee and its Affiliates shall have
the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee, its Affiliates and the
Property Trustee and its Affiliates may engage or be interested in any
financial or other transaction with the Depositor or any Affiliate of the
Depositor, or may act as depositary for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the
Depositor or its Affiliates.
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ARTICLE X
ACCOUNTING
SECTION 10.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall commence
on October 1st and end on September 30th, unless changed by the requisite vote
of the Administrative Trustees.
SECTION 10.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Administrative Trustees shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable detail,
each transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States federal income tax purposes. The books of account
and the records of the Trust shall be examined by and reported upon as of the
end of each Fiscal Year by a firm of independent certified public accountants
selected by the Administrative Trustees.
(b) The Administrative Trustees shall cause to be prepared
and delivered to each of the Holders of Trust Securities, within 90 days after
the end of each Fiscal Year of the Trust, annual financial statements of the
Trust, including a balance sheet of the Trust as of the end of such Fiscal
Year, and the related statements of income or loss;
(c) The Administrative Trustees shall cause to be duly
prepared and delivered to each of the Holders of Trust Securities, any annual
United States federal income tax information statement required by the Code,
containing such information with regard to the Trust Securities held by each
Holder as is required by the Code and the Treasury Regulations. Notwithstanding
any right under the Code to deliver any such statement at a later date, the
Administrative Trustees shall endeavor to deliver all such statements within 30
days after the end of each Fiscal Year of the Trust.
(d) The Administrative Trustees shall cause to be duly
prepared and filed with the appropriate taxing authority, an annual United
States federal income tax return, on a Form 1041 or such other form required by
the Code, and any other annual income tax returns required to be filed by the
Administrative Trustees on behalf of the Trust with any state or local taxing
authority.
SECTION 10.3 Banking.
The Trust shall maintain one or more bank accounts in the
name and for the sole benefit of the Trust; provided, however, that all
payments of funds in respect of the Convertible Debentures held by the Property
Trustee shall be made directly to the Property Account and no other funds of
the Trust shall be deposited in the Property Account. The sole signatories for
such accounts shall be designated by
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the Administrative Trustees; provided, however, that the Property Trustee shall
designate the signatories for the Property Account.
SECTION 10.4 Withholding.
The Trust and the Administrative Trustees shall comply with
all withholding requirements under United States federal, state and local law.
The Trust shall request, and the Holders shall provide to the Trust, such forms
or certificates as are necessary to establish an exemption from withholding
with respect to each Holder, and any representations and forms as shall
reasonably be requested by the Trust to assist it in determining the extent of,
and in fulfilling, its withholding obligations. The Administrative Trustee
shall file required forms with applicable jurisdictions and, unless an
exemption from withholding is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable jurisdictions. To the
extent that the Trust is required to withhold and pay over any amounts to any
authority with respect to distributions or allocations to any Holder, the
amount withheld shall be deemed to be a distribution in the amount of the
withholding to the Holder. In the event of any claimed overwithholding, Holders
shall be limited to an action against the applicable jurisdiction. If the
amount required to be withheld was not withheld from actual Distributions made,
the Trust may reduce subsequent Distributions by the amount of such
withholding.
ARTICLE XI
AMENDMENTS AND MEETINGS
SECTION 11.1 Amendments.
(a) Except as otherwise provided in this Trust Agreement or by
any applicable terms of the Trust Securities, this Trust Agreement may only be
amended by a written instrument approved and executed by:
(i) the majority of the Administrative Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property
Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware
Trustee.
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(b) No amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment,
the Property Trustee shall have first received an Officers'
Certificate from each of the Trust and the Depositor that such
amendment is permitted by, and conforms to, the terms of this Trust
Agreement (including the terms of the Trust Securities);
(ii) unless, in the case of any proposed amendment
which affects the rights, powers, duties, obligations or immunities of
the Property Trustee, the Property Trustee shall have first received:
(A) an Officers' Certificate from each of the
Trust and the Depositor that such amendment is permitted by,
and conforms to, the terms of this Trust Agreement (including
the terms of the Trust Securities); and
(B) an opinion of counsel (who may be counsel
to the Depositor or the Trust) that such amendment is
permitted by, and conforms to, the terms of this Trust
Agreement (including the terms of the Trust Securities); and
(iii) to the extent the result of such amendment
would be to:
(A) cause the Trust to fail to continue to be
classified for purposes of United States federal income
taxation as a grantor trust;
(B) reduce or otherwise adversely affect the
powers of the Property Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company that is required to be registered under
the Investment Company Act.
(c) So long as any Trust Securities remain outstanding, any
amendment that would adversely affect the rights, privileges or preferences of
any Holder of Trust Securities may be effected only with such additional
requirements as may be set forth in the terms of such Trust Securities.
(d) Section 8.1(c) and this Section 11.1 shall not be amended
without the consent of all of the Holders of the Trust Securities.
(e) Article IV and the rights of the holders of the Common
Securities under Article V to increase or
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decrease the number of, and appoint and remove Trustees shall not be amended
without the consent of the Holders of a majority in liquidation amount of the
Common Securities.
(f) Notwithstanding Section 11.1(c), this Trust Agreement may
be amended without the consent of the Holders of the Trust Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Trust
Agreement that may be defective or inconsistent with any other
provision of this Trust Agreement;
(iii) add to the covenants, restrictions or obligations
of the Depositor; and
(iv) conform to any change in Rule 3a-5 or written
change in interpretation or application of Rule 3a-5 by any
legislative body, court, government agency or regulatory authority,
which amendment does not have a material adverse effect on the rights,
preferences or privileges of the Holders.
SECTION 11.2 Meetings of the Holders of Trust Securities; Action by
Written Consent.
(a) Meetings of the Holders of any class of Trust Securities
may be called at any time by the Administrative Trustees (or as provided in the
terms of the Trust Securities) to consider and act on any matter on which
Holders of such class of Trust Securities are entitled to act under the terms
of this Trust Agreement, the terms of the Trust Securities or the rules of any
stock exchange on which the Preferred Securities are listed or admitted for
trading. The Administrative Trustees shall call a meeting of the Holders of
such class if directed to do so by the Holders of at least 10% in liquidation
amount of such class of Trust Securities. Such direction shall be given by
delivering to the Administrative Trustees one or more calls in a writing
stating that the signing Holders of Trust Securities wish to call a meeting and
indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Trust Securities calling a meeting shall specify in
writing the Certificates held by the Holders of Trust Securities exercising the
right to call a meeting and only those Trust Securities represented by the
Certificates so specified shall be counted for purposes of determining whether
the required percentage set forth in the second sentence of this paragraph has
been met.
(b) Except to the extent otherwise provided in the terms of
the Trust Securities, the following provisions shall apply to meetings of
Holders of Trust Securities:
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(i) notice of any such meeting shall be given to
all the Holders of Trust Securities having a right to vote thereat at
least seven days and not more than 60 days before the date of such
meeting. Whenever a vote, consent or approval of the Holders of Trust
Securities is permitted or required under this Trust Agreement or the
rules of any stock exchange or over-the-counter market on which the
Preferred Securities are listed or admitted for trading, such vote,
consent or approval may be given at a meeting of the Holders of Trust
Securities. Any action that may be taken at a meeting of the Holders
of Trust Securities may be taken without a meeting if a consent in
writing setting forth the action so taken is signed by the Holders of
Trust Securities owning not less than the minimum amount of Trust
Securities in liquidation amount that would be necessary to authorize
or take such action at a meeting at which all Holders of Trust
Securities having a right to vote thereon were present and voting.
Prompt notice of the taking of action without a meeting shall be given
to the Holders of Trust Securities entitled to vote who have not
consented in writing. The Administrative Trustees may specify that any
written ballot submitted to the Security Holders for the purpose of
taking any action without a meeting shall be returned to the Trust
within the time specified by the Administrative Trustees;
(ii) each Holder of a Security may authorize any
Person to act for it by proxy on all matters in which a Holder of
Trust Securities is entitled to participate, including waiving notice
of any meeting, or voting or participating at a meeting. No proxy
shall be valid after the expiration of 11 months from the date thereof
unless otherwise provided in the proxy. Every proxy shall be revocable
at the pleasure of the Holder of Trust Securities executing it. Except
as otherwise provided herein, all matters relating to the giving,
voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and
judicial interpretations thereunder, as if the Trust were a Delaware
corporation and the Holders of the Trust Securities were stockholders
of a Delaware corporation;
(iii) each meeting of the Holders of the Trust
Securities shall be conducted by the Administrative Trustees or by
such other Person that the Administrative Trustees may designate; and
(iv) unless the Business Trust Act, this Trust
Agreement, the terms of the Trust Securities, the Trust Indenture Act
or the listing rules of any stock exchange on which the Preferred
Securities are then listed or trading provide otherwise, the
Administrative
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Trustees, in their sole discretion, shall establish all other
provisions relating to meetings of Holders of Trust Securities,
including notice of the time, place or purpose of any meeting at which
any matter is to be voted on by any Holders of Trust Securities,
waiver of any such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements, voting in person
or by proxy or any other matter with respect to the exercise of any
such right to vote.
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ARTICLE XII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 12.1 Representations and Warranties of Property Trustee.
The Issuer Trustee that acts as initial Property Trustee
represents and warrants to the Trust and to the Depositor at the date of this
Trust Agreement, and each Successor Property Trustee represents and warrants to
the Trust and the Depositor at the time of the Successor Property Trustee's
acceptance of its appointment as Property Trustee that:
(a) The Property Trustee is a National banking association with
trust powers, duly organized and validly existing under the laws of the United
States of America, with trust power and authority to execute and deliver, and
to carry out and perform its obligations under the terms of, this Trust
Agreement.
(b) The execution, delivery and performance by the Property
Trustee of the Trust Agreement has been duly authorized by all necessary
corporate action on the part of the Property Trustee; and the Trust Agreement
has been duly executed and delivered by the Property Trustee, and constitutes a
legal, valid and binding obligation of the Property Trustee, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law).
(c) The execution, delivery and performance of the Trust
Agreement by the Property Trustee does not conflict with or constitute a breach
of the articles of association or By-laws of the Property Trustee.
(d) At the Closing Date, the Property Trustee has not knowingly
created any liens or encumbrances on such Convertible Debentures.
(e) No consent, approval or authorization of, or registration
with or notice to any federal banking authority is required for the execution,
delivery or performance by the Property Trustee, of the Trust Agreement.
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SECTION 12.2 Representations and Warranties of Delaware Trustee.
The Issuer Trustee that acts as initial Delaware Trustee
represents and warrants to the Trust and to the Depositor at the date of this
Trust Agreement and at the time of Closing, and each Successor Delaware Trustee
represents and warrants to the Trust and the Depositor at the time of the
Successor Delaware Trustee's acceptance of its appointment as Delaware Trustee
that:
(a) The Delaware Trustee is duly organized, validly existing
and in good standing under the laws of the State of Delaware, with trust power
and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Trust Agreement.
(b) The execution, delivery and performance by the Delaware
Trustee of the Trust Agreement has been duly authorized by all necessary
corporate action on the part of the Delaware Trustee; and the Trust Agreement
has been duly executed and delivered by the Delaware Trustee, and constitutes a
legal, valid and binding obligation of the Delaware Trustee, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law).
(c) The execution, delivery and performance of the Trust
Agreement by the Delaware Trustee does not conflict with or constitute a breach
of the certificate of incorporation or by-laws of the Delaware Trustee.
(d) No consent, approval or authorization of, or registration
with or notice to, any state or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of this Trust
Agreement.
(e) The Delaware Trustee is an entity which has its principal
place of business in the State of Delaware.
(f) The Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Trust Agreement.
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ARTICLE XIII
CONVERSION
SECTION 13.1 Conversion Rights.
The holders of Trust Securities shall have the right at any
time prior to 5:00 p.m. (New York City time) on the Business Day immediately
preceding the date of repayment of such Trust Securities, whether at maturity
or upon redemption (either at the option of the Company or pursuant to a Tax
Event), at their option, to cause the Conversion Agent to convert Trust
Securities, on behalf of the converting Holders, into shares of Company Common
Stock of the Company in the manner described herein on and subject to the
following terms and conditions:
The Trust Securities will be convertible at the office of the
Conversion Agent into fully paid and nonassessable shares of Company Common
Stock of the Company pursuant to the Holder's direction to the Conversion Agent
to exchange such Trust Securities for a portion of the Convertible Debentures
theretofore held by the Trust on the basis of one Trust Security per $25
principal amount of Convertible Debentures, and immediately convert such amount
of Convertible Debentures into fully paid and nonassessable shares of Company
Common Stock of the Company at an initial conversion rate of 0.4545 shares of
Company Common Stock of the Company per $25 principal amount of Convertible
Debentures (which is equivalent to a conversion price of $55.00 per share of
Company Common Stock of the Company, subject to certain adjustments set forth
in this Article Thirteen (as so adjusted, the "Conversion Price")).
SECTION 13.2 Conversion Procedures.
(a) In order to convert Trust Securities into Company Common
Stock, the Holder shall submit to the Conversion Agent an irrevocable request
to convert Trust Securities on behalf of such Holder (the "Conversion
Request"), together, if the Trust Securities are in certificated form, with
such certificates. The Conversion Request shall (i) set forth the number of
Trust Securities to be converted and the name or names, if other than the
Holder, in which the shares of Company Common Stock of the Company should be
issued and (ii) direct the Conversion Agent (A) to exchange such Trust
Securities for a portion of the Convertible Debentures held by the Trust (at
the rate of exchange specified in Section 13.1) and (B) to immediately convert
such Convertible Debentures on behalf of such Holder, into Company Common Stock
of the Company (at the conversion rate specified in Section 13.1).
(b) The Conversion Agent shall notify the Trust of the Holder's
election to exchange Trust Securities for a portion of the Convertible
Debentures held by the Trust and the Trust shall, upon receipt of such notice,
deliver to the Conversion Agent the appropriate principal amount of Convertible
Debentures for exchange in accordance with this
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Article Thirteen. The Conversion Agent shall thereupon notify the Company of
the Holder's election to convert such Convertible Debentures into shares of
Company Common Stock of the Company. Accrued Distributions will not be paid on
Preferred Trust Securities that are converted, nor will any payment, allowance
or adjustment be made for accumulated and unpaid Distributions, whether or not
in arrears, on converted Preferred Securities except that if any Preferred
Security is converted (i) on or after a record date for payment of
Distributions thereon, the Distributions payable on the related payment date
with respect to such Preferred Security shall be distributed to the Holder on
such record date, despite such conversion, and (ii) during an Extension Period
and after the Property Trustee mails a Redemption Distribution Notice with
respect to the Preferred Securities that are converted, accrued and unpaid
Distributions through the date of conversion on such Preferred Securities
called for redemption shall be distributed to the Holder who converts such
Preferred Securities, which Distribution shall be made on the redemption date
fixed for redemption. Except as provided above, neither the Trust nor the
Company will make, or be required to make, any payment, allowance or adjustment
upon any conversion on account of any accumulated and unpaid Distributions
accrued on the Trust Securities (including any Additional Interest, Compounded
Interest or Liquidated Damages, if any) surrendered for conversion, or on
account of any accumulated and unpaid dividends on the shares of Company Common
Stock of the Company issued upon such conversion. The Company shall make no
payment or allowance for distributions on the shares of Company Common Stock of
the Company issued upon such conversion, except to the extent that such shares
of Company Common Stock of the Company are held of record on the record date
for any such distributions and except as provided in Section 1309 of the
Indenture. Trust Securities shall be deemed to have been converted immediately
prior to 5:00 p.m. (New York City time) on the day on which a Conversion
Request relating to such Trust Securities is received by the Trust in
accordance with the foregoing provision (the "Conversion Date"). The Person or
Persons entitled to receive the Company Common Stock of the Company issuable
upon conversion of the Convertible Debentures shall be treated for all purposes
as the record holder or holders of such Company Common Stock of the Company at
such time. As promptly as practicable on or after the Conversion Date, the
Company shall issue and deliver at the office of the Conversion Agent a
certificate or certificates for the number of full shares of Company Common
Stock of the Company issuable upon such conversion, together with the cash
payment, if any, in lieu of any fraction of any share to the Person or Persons
entitled to receive the same, unless otherwise directed by the Holder in the
notice of conversion and the Conversion Agent shall distribute such certificate
or certificates to such Person or Persons.
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(c) Each Holder of a Security by his acceptance thereof
appoints Chase Bank of Texas, National Association (the "Conversion Agent") for
the purpose of effecting the conversion of Trust Securities in accordance with
this Article Thirteen. In effecting the conversion and transactions described
in this Article Thirteen, the Conversion Agent shall be acting as agent of the
Holders of Trust Securities directing it to effect such conversion
transactions. The Conversion Agent is hereby authorized (i) to exchange Trust
Securities from time to time for Convertible Debentures held by the Trust in
connection with the conversion of such Trust Securities in accordance with this
Article Thirteen and (ii) to convert all or a portion of the Convertible
Debentures into Company Common Stock of the Company and thereupon to deliver
such shares of Company Common Stock of the Company in accordance with the
provisions of this Article Thirteen and to deliver to the Trust a new Debenture
or Convertible Debentures for any resulting unconverted principal amount.
(d) No fractional shares of Company Common Stock of the
Company will be issued as a result of conversion, but in lieu thereof such
fractional interest will be in cash (based on the last reported sale price of
the Company Common Stock of the Company on the Conversion Date) by the Company
to the Trust, which in turn will make such payment to the Holder or Holders of
Trust Securities so converted.
(e) The Company shall at all times reserve and keep available
out of its authorized and unissued Company Common Stock, solely for issuance
upon the conversion of the Convertible Debentures, free from any preemptive or
other similar rights, such number of shares of Company Common Stock of the
Company as shall from time to time be issuable upon the conversion of all the
Convertible Debentures then outstanding. Notwithstanding the foregoing, the
Company shall be entitled to deliver upon conversion of Convertible Debentures,
shares of Company Common Stock of the Company reacquired and held in the
treasury of the Company (in lieu of the issuance of authorized and unissued
shares of Company Common Stock of the Company), so long as any such treasury
shares are free and clear of all liens, charges, security interests or
encumbrances. Any shares of Company Common Stock issued upon conversion of the
Convertible Debentures shall be duly authorized, validly issued, fully paid and
nonassessable. The Trust shall deliver the shares of Company Common Stock
received upon conversion of the Convertible Debentures to the converting Holder
free and clear of all liens, charges, security interests and encumbrances,
except for United States withholding taxes. Each of the Company and the Trust
shall prepare and shall use its best efforts to obtain and keep in force such
governmental or regulatory permits or other authorizations as may be required
by law, and shall comply with all applicable requirements as to registration or
qualification
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of the Company Common Stock (and all requirements to list the Company Common
Stock issuable upon conversion of Convertible Debentures that are at the time
applicable), in order to enable the Company to lawfully issue Company Common
Stock to the Trust upon conversion of the Convertible Debentures and the Trust
to lawfully deliver the Company Common Stock to each Holder upon conversion of
the Trust Securities.
(f) The Company will pay any and all taxes that may be
payable in respect of the issue or delivery of shares of Company Common Stock
on conversion of Convertible Debentures and the delivery of the shares of
Company Common Stock by the Trust upon conversion of the Trust Securities. The
Company shall not, however, be required to pay any tax that may be payable in
respect of any transfer involved in the issue and delivery of shares of Company
Common Stock in a name other than that in which the Trust Securities so
converted were registered, and no such issue or delivery shall be made unless
and until the person requesting such issue has paid to the Trust the amount of
any such tax or has established to the satisfaction of the Trust that such tax
has been paid.
(g) Nothing in the preceding Article Thirteen shall limit the
requirement of the Trust to withhold taxes pursuant to the terms of the Trust
Securities or as set forth in Annex I to the Trust Agreement or this agreement
or otherwise require the Property Trustee or the Trust to pay any amounts on
account of such withholdings.
SECTION 13.3 Conversion Price Adjustments.
The conversion price shall be subject to adjustment (without
duplication) from time to time as follows:
(a) In case the Company shall, while any of the Trust
Securities are outstanding, (i) pay a dividend or make a distribution with
respect to its Company Common Stock in shares of Company Common Stock, (ii)
subdivide its outstanding shares of Company Common Stock, (iii) combine its
outstanding shares of Company Common Stock into a smaller number of shares or
(iv) issue by reclassification of its shares of Company Common Stock any shares
of capital stock of the Company, the conversion price in effect immediately
prior to such action shall be adjusted so that the Holder of any Trust
Securities thereafter surrendered for conversion shall be entitled to receive
the number of shares of capital stock of the Company which he would have owned
immediately following such action had such Trust Securities been converted
immediately prior thereto. An adjustment made pursuant to this Section 13.3(a)
shall become effective immediately after the record date in the case of a
dividend or other distribution and shall become
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effective immediately after the effective date in case of a subdivision,
combination or reclassification (or immediately after the record date if a
record date shall have been established for such event). If, as a result of an
adjustment made pursuant to this Section 13.3(a), the Holder of any Trust
Securities thereafter surrendered for conversion shall become entitled to
receive shares of two or more classes or series of capital stock of the
Company, the Board of Directors (whose determination shall be conclusive and
shall be described in a Board Resolution filed with the Trustee) shall
determine the allocation of the adjusted conversion price between or among
shares of such classes or series of capital stock.
(b) In case the Company shall, while any of the Trust
Securities are outstanding, issue rights or warrants to all holders of its
Company Common Stock entitling them (for a period expiring within 45 days after
the record date mentioned in this Section 13.3(b)) to subscribe for or purchase
shares of Company Common Stock at a price per share less than the current
market price per share of Company Common Stock (as determined pursuant to
Section 13.3(f) below) on such record date, the conversion price for the Trust
Securities shall be adjusted so that the same shall equal the price determined
by multiplying the conversion price in effect immediately prior to the date of
issuance of such rights or warrants by a fraction of which the numerator shall
be the number of shares of Company Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of shares which the
aggregate offering price of the total number of shares so offered for
subscription or purchase would purchase at such current market price, and of
which the denominator shall be the number of shares of Company Common Stock
outstanding on the date of issuance of such rights or warrants plus the number
of additional shares of Company Common Stock offered for subscription or
purchase. Such adjustment shall become effective immediately after the record
date for the determination of stockholders entitled to receive such rights or
warrants. For the purposes of this subsection, the number of shares of Company
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company. The Company shall not issue any rights or warrants in
respect of shares of Company Common Stock held in the treasury of the Company.
In case any rights or warrants referred to in this subsection in respect of
which an adjustment shall have been made shall expire unexercised within 45
days after the same shall have been distributed or issued by the Company, the
conversion price shall be readjusted at the time of such expiration to the
conversion price that would have been in effect if no adjustment had been made
on account of the distribution or issuance of such expired rights or warrants.
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(c) Subject to the last sentence of this Section 13.3(c), in
case the Company shall, by dividend or otherwise, distribute to all holders of
its Company Common Stock evidences of its indebtedness, shares of any class or
series of capital stock, cash or assets (including securities, but excluding
any rights or warrants referred to in Section 13.3(b), any dividend or
distribution paid exclusively in cash and any dividend or distribution referred
to in Section 13.3(a)), the conversion price shall be reduced so that the same
shall equal the price determined by multiplying the conversion price in effect
immediately prior to the effectiveness of the conversion price reduction
contemplated by this Section 13.3(c) by a fraction of which the numerator shall
be the current market price per share (determined as provided in Section
13.3(f)) of the Company Common Stock on the date fixed for the payment of such
distribution (the "Reference Date") less the fair market value (as determined
in good faith by the Board of Directors, whose determination shall be
conclusive and described in a resolution of the Board of Directors), on the
Reference Date, of the portion of the evidences of indebtedness, shares of
capital stock, cash and assets so distributed applicable to one share of
Company Common Stock and the denominator shall be such current market price per
share of the Company Common Stock, such reduction to become effective
immediately prior to the opening of business on the day following the Reference
Date. In the event that such dividend or distribution is not so paid or made,
the conversion price shall again be adjusted to be the conversion price which
would then be in effect if such dividend or distribution had not occurred. If
the Board of Directors determines the fair market value of any distribution for
purposes of this Section 13.3(c) by reference to the actual or when issued
trading market for any securities comprising such distribution, it must in
doing so consider the prices in such market over the same period used in
computing the current market price per share of Company Common Stock
(determined as provided in Section 13.3(f)). For purposes of this Section
13.3(c), any dividend or distribution that includes shares of Company Common
Stock or rights or warrants to subscribe for or purchase shares of Company
Common Stock shall be deemed instead to be (1) a dividend or distribution of
the evidences of indebtedness, shares of capital stock, cash or assets other
than such shares of Company Common Stock or such rights or warrants (making any
conversion price reduction required by this Section 13.3(c)) immediately
followed by (2) a dividend or distribution of such shares of Company Common
Stock or such rights or warrants (making any further conversion price reduction
required by Section 13.3(a) or 13.3(b)), except (A) the Reference Date of such
dividend or distribution as defined in this Section 13.3(c) shall be
substituted as (a) "the record date in the case of a dividend or other
distribution," and (b) "the record date for the determination of stockholders
entitled to receive such rights or warrants" and (c) "the date fixed for such
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determination" within the meaning of Sections 13.3(a) and 13.3(b) and (B) any
shares of Company Common Stock included in such dividend or distribution shall
not be deemed outstanding for purposes of computing any adjustment of the
conversion price in Section 13.3(a).
(d) In case the Company shall pay or make a dividend or other
distribution on its Company Common Stock exclusively in cash (excluding all
regular cash dividends, if the annualized amount thereof per share of Company
Common Stock does not exceed 20% of the current market price per share
determined as provided in Section 13.3(f) of the Company Common Stock on the
Trading Day immediately preceding the date of declaration of such dividend),
the conversion price shall be reduced so that the same shall equal the price
determined by multiplying the conversion price in effect immediately prior to
the effectiveness of the conversion price reduction contemplated by this
Section 13.3(d) by a fraction of which the numerator shall be the current
market price per share (determined as provided in Section 13.3(f)) of the
Company Common Stock on the date fixed for the payment of such distribution
less the amount of cash so distributed and not excluded as provided applicable
to one share of Company Common Stock and the denominator shall be such current
market price per share of the Company Common Stock, such reduction to become
effective immediately prior to the opening of business on the day following the
date fixed for the payment of such distribution; provided, however, that in the
event the portion of the cash so distributed applicable to one share of Company
Common Stock is equal to or greater than the current market price per share (as
defined in Section 13.3(f)) of the Company Common Stock on the record date
mentioned above, in lieu of the foregoing adjustment, adequate provision shall
be made so that each Holder of Trust Securities shall have the right to receive
upon conversion the amount of cash such Holder would have received had such
Holder converted each share of the Trust Securities immediately prior to the
record date for the distribution of the cash. In the event that such dividend
or distribution is not so paid or made, the conversion price shall again be
adjusted to be the conversion price which would then be in effect if such
record date had not been fixed.
(e) In case a tender or exchange offer (other than an odd-lot
offer) made by the Company or any Subsidiary of the Company for all or any
portion of the Company's Company Common Stock shall expire and such tender or
exchange offer shall involve the payment by the Company or such Subsidiary of
consideration per share of Company Common Stock having a fair market value (as
determined in good faith by the Board of Directors, whose determination shall
be conclusive and described in a resolution of the Board of Directors) at the
last time (the "Expiration Time") tenders
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or exchanges may be made pursuant to such tender or exchange offer (as it shall
have been amended) that exceeds 110% of the current market price per share
(determined as provided in Section 13.3(f)) of the Company Common Stock on the
Trading Day next succeeding the Expiration Time, the conversion price shall be
reduced so that the same shall equal the price determined by multiplying the
conversion price in effect immediately prior to the effectiveness of the
conversion price reduction contemplated by this Section 13.3(e) by a fraction
of which the numerator shall be the number of shares of Company Common Stock
outstanding (including any tendered or exchanged shares) at the Expiration Time
multiplied by the current market price per share (determined as provided in
Section 13.3(f)) of the Company Common Stock on the Trading Day next succeeding
the Expiration Time and the denominator shall be the sum of (x) the fair market
value (determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the terms
of the tender or exchange offer) of all shares validly tendered or exchanged
and not withdrawn as of the Expiration Time (the shares deemed so accepted, up
to any such maximum, being referred to as the "Purchased Shares") and (y) the
product of the number of shares of Company Common Stock outstanding (less any
Purchased Shares) at the Expiration Time and the current market price per share
(determined as provided in Section 13.3(f)) of the Company Common Stock on the
Trading Day next succeeding the Expiration Time, such reduction to become
effective immediately prior to the opening of business on the day following the
Expiration Time.
(f) For the purpose of any computation under Section 13.3(b),
13.3(c), 13.3(d) or 13.3(e), the current market price per share of Company
Common Stock on any date in question shall be deemed to be the average of the
daily Closing Prices for the five consecutive Trading Days selected by the
Company commencing not more than 20 Trading Days before, and ending not later
than, the earlier of the day in question or, if applicable, the day before the
"ex" date with respect to the issuance or distribution requiring such
computation; provided, however, that if another event occurs that would require
an adjustment pursuant to Section 13.3(a) through (e), inclusive, the Board of
Directors may make such adjustments to the Closing Prices during such five
Trading Day period as it deems appropriate to effectuate the intent of the
adjustments in this Section 13.3, in which case any such determination by the
Board of Directors shall be set forth in a Board Resolution and shall be
conclusive. For purposes of this paragraph, the term "ex" date, (i) when used
with respect to any issuance or distribution, means the first date on which the
Company Common Stock trades regular way on the New York Stock Exchange or on
such successor securities exchange as the Company Common Stock may be listed or
in the relevant market from which the Closing Prices were obtained without the
right to receive such
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issuance or distribution, and (ii) when used with respect to any tender or
exchange offer, means the first date on which the Company Common Stock trades
regular way on such securities exchange or in such market after the Expiration
Time of such offer.
(g) The Company may make such reductions in the conversion
price, in addition to those required by Sections 13.3(a) through (e), as it
considers to be advisable to avoid or diminish any income tax to holders of
Company Common Stock or rights to purchase Company Common Stock resulting from
any dividend or distribution of stock (or rights to acquire stock) or from any
event treated as such for income tax purposes. The Company from time to time
may reduce the conversion price by any amount for any period of time if the
period is at least 20 days, the reduction is irrevocable during the period, and
the Board of Directors of the Company shall have made a determination that such
reduction would be in the best interest of the Company, which determination
shall be conclusive. Whenever the conversion price is reduced pursuant to the
preceding sentence, the Company shall mail to holders of record of the
Convertible Debentures a notice of the reduction at least 15 days prior to the
date the reduced conversion price takes effect, and such notice shall state the
reduced conversion price and the period it will be in effect.
(h) No adjustment in the conversion price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
the conversion price; provided, however, that any adjustments which by reason
of this Section 13.3(h) are not required to be made shall be carried forward
and taken into account in determining whether any subsequent adjustment shall
be required.
(i) If any action would require adjustment of the conversion
price pursuant to more than one of the provisions described above, only one
adjustment shall be made and such adjustment shall be the amount of adjustment
that has the highest absolute value to the Holder of the Trust Securities.
SECTION 13.4 Fundamental Change.
(a) In the event that the Company is party to any transaction
(including, without limitation, a merger other than a merger that does not
result in a reclassification, conversion, exchange or cancellation of Company
Common Stock), consolidation, sale of all or substantially all of the assets of
the Company, recapitalization or reclassification of Company Common Stock
(other than a change in par value, or from par value to no par value, or from
no par value to par value or as a result of a subdivision or combination of
Company Common Stock) or any compulsory share exchange (each of the foregoing
being
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referred to as a "Transaction"), in each case, as a result of which shares of
Company Common Stock shall be converted into the right to receive, or shall be
exchanged for, (i) in the case of any Transaction other than a Transaction
involving a Common Stock Fundamental Change (and subject to funds being legally
available for such purpose under applicable law at the time of such
conversion), securities, cash or other property, each Preferred Security shall
thereafter be convertible into the kind and, in the case of a Transaction which
does not involve a Fundamental Change, amount of securities, cash and other
property receivable upon the consummation of such Transaction by a holder of
that number of shares of Company Common Stock into which a Preferred Security
was convertible immediately prior to such Transaction, or (ii) in the case of a
Transaction involving a Common Stock Fundamental Change, common stock, each
Preferred Security shall thereafter be convertible (in the manner described
therein) into common stock of the kind received by holders of Company Common
Stock (but in each case after giving effect to any adjustment discussed below
relating to a Fundamental Change if such Transaction constitutes a Fundamental
Change). The holders of Preferred Securities will have no voting rights with
respect to any Transaction.
(b) If any Fundamental Change occurs, then the conversion
price in effect will be adjusted immediately after such Fundamental Change as
described below. In addition, in the event of a Common Stock Fundamental
Change, each Preferred Security shall be convertible solely into common stock
of the kind received by holders of Company Common Stock as a result of such
Common Stock Fundamental Change.
(c) The conversion price in the case of any Transaction
involving a Fundamental Change will be adjusted immediately after such
Fundamental Change:
(i) in the case of a Non-Stock Fundamental Change, the
conversion price of the Preferred Securities will thereupon
become the lower of (A) the conversion price in effect
immediately prior to such Non-Stock Fundamental Change, but
after giving effect to any other prior adjustments effected
pursuant to the preceding paragraphs, and (B) the greater of
the Applicable Price or the then applicable Reference Market
Price plus any then-accrued and unpaid distributions on one
Preferred Security; and
(ii) in the case of a Common Stock Fundamental Change,
the conversion price of the Preferred Securities in effect
immediately prior to such Common Stock Fundamental Change,
but after giving effect to any other prior adjustments
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effected pursuant to the preceding paragraphs, will thereupon
be adjusted by multiplying such conversion price by a
fraction of which the numerator will be the Purchaser Stock
Price and the denominator will be the Applicable Price;
provided, however, that in the event of a Common Stock
Fundamental Change in which (A) 100% of the value of the
consideration received by a holder of Company Common Stock is
common stock of the successor, acquirer, or other third party
(and cash, if any, is paid only with respect to any
fractional interests in such common stock resulting from such
Common Stock Fundamental Change) and (B) all Company Common
Stock will be have been exchanged for, converted into, or
acquired for common stock (and cash with respect to
fractional interests) of the successor, acquirer, or other
third party, the conversion price of the Preferred Securities
in effect immediately prior to such Common Stock Fundamental
Change will thereupon be adjusted by multiplying such
conversion price by a fraction of which the numerator will be
one and the denominator will be the number of shares of
common stock of the successor, acquirer, or other third party
received by a holder of one share of Company Common Stock as
a result of such Common Stock Fundamental Change.
The Company or the Person formed by such consolidation or
resulting from such merger or which acquired such assets or which acquires the
Company's shares, as the case may be, shall make provision in its certificate
or articles of incorporation or other constituent document to establish such
right. Such certificate or articles of incorporation or other constituent
document shall provide for adjustments which, for events subsequent to the
effective date of such certificate or articles of incorporation or other
constituent document, shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Article Thirteen. The above provisions
shall similarly apply to successive transactions of the foregoing type.
SECTION 13.5 Notice of Adjustments of Conversion Price.
Whenever the conversion price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price
and shall prepare a certificate signed by the Chief Financial Officer or the
Treasurer of the Company setting forth the adjusted Conversion Price and
showing in reasonable detail the facts upon which such adjustment is based, and
such certificate shall forthwith be filed with
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the Trustee, the Conversion Agent and the transfer agent for the Preferred
Securities and the Convertible Debentures; and
(b) a notice stating the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall as soon as practicable be
mailed by the Company to all record holders of Preferred Securities and the
Convertible Debentures at their last addresses as they appear upon the stock
transfer books of the Company and the Trust.
SECTION 13.6 Prior Notice of Certain Events.
In case:
(a) the Company shall (i) declare any dividend (or any other
distribution) on its Company Common Stock, other than (A) a dividend payable in
shares of Company Common Stock or (B) a dividend payable in cash that would not
require an adjustment pursuant to Section 13.3(c) or 13.3(d), or (ii) authorize
a tender or exchange offer that would require an adjustment pursuant to Section
13.3(e);
(b) the Company shall authorize the granting to all holders
of Company Common Stock of rights or warrants to subscribe for or purchase any
shares of stock of any class or series or of any other rights or warrants;
of any reclassification of Company Common Stock (other than a subdivision or
combination of the outstanding Company Common Stock, or a change in par value,
or from par value to no par value, or from no par value to par value), or of
any consolidation or merger to which the Company is a party and for which
approval of any stockholders of the Company shall be required, or of the sale
or transfer of all or substantially all of the assets of the Company or of any
compulsory share exchange whereby the Company Common Stock is converted into
other securities, cash or other property; or
(c) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall (1) if any Preferred Securities are outstanding, cause
to be filed with the transfer agent for the Preferred Securities, and shall
cause to be mailed to the holders of record of the Preferred Securities, at
their last addresses as they shall appear upon the stock transfer books the
Trust or (2) shall cause to be mailed to all Holders at their last addresses as
they shall appear in the Security Register, at least 15 days prior to the
applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record (if any) is to be taken for the purpose of such
dividend, distribution, rights or warrants or, if a record is not to be taken,
the date as
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of which the holders of Company Common Stock of record to be entitled to such
dividend, distribution, rights or warrants are to be determined or (y) the date
on which such reclassification, consolidation, merger, sale, transfer, share
exchange, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Company
Common Stock of record shall be entitled to exchange their shares of Company
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up (but no failure to mail such notice or
any defect therein or in the mailing thereof shall affect the validity of the
corporate action required to be specified in such notice).
SECTION 13.7 Certain Defined Terms.
The following definitions shall apply to terms used in this
Article Thirteen:
(a) "Closing Price" of any Company Common Stock on any day
shall mean the reported last sale price on such day or in case no sale takes
place on such day, the average of the reported closing bid and asked prices in
each case on the NYSE Consolidated Transactions Tape or, if the stock is not
listed or admitted to trading on the NYSE, on the principal national securities
exchange on which such stock is listed or admitted to trading or, if not listed
or admitted to trading on any national securities exchange, the average of the
closing bid and asked prices as furnished by any NYSE member firm, selected by
the Debenture Trustee for that purpose.
(b) "Trading Day" shall mean a day on which securities are
traded on the national securities exchange or quotation system used to
determine the Closing Price.
SECTION 13.8 Certain Additional Rights.
In case the Company shall, by dividend or otherwise, declare
or make a distribution on its Company Common Stock referred to in Section
13.3(c) or 13.3(d) (including, without limitation, dividends or distributions
referred to in the last sentence of Section 13.3(c)), the Holder of the Trust
Securities, upon the conversion thereof subsequent to 5:00 p.m. (New York City
time) on the date fixed for the determination of stockholders entitled to
receive such distribution and prior to the effectiveness of the conversion
price adjustment in respect of such distribution, shall also be entitled to
receive for each share of Company Common Stock into which the Trust Securities
are converted, the portion of the shares of Company Common Stock, rights,
warrants, evidences of indebtedness, shares of capital stock, cash and assets
so
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distributed applicable to one share of Company Common Stock; provided, however,
that, at the election of the Company (whose election shall be evidenced by a
resolution of the Board of Directors) with respect to all Holders so
converting, the Company may, in lieu of distributing to such Holder any portion
of such distribution not consisting of cash or securities of the Company, pay
such Holder an amount in cash equal to the fair market value thereof (as
determined in good faith by the Board of Directors, whose determination shall
be conclusive and described in a resolution of the Board of Directors). If any
conversion of Trust Securities described in the immediately preceding sentence
occurs prior to the payment date for a distribution to holders of Company
Common Stock which the Holder of Trust Securities so converted is entitled to
receive in accordance with the immediately preceding sentence, the Company may
elect (such election to be evidenced by a resolution of the Board of Directors)
to distribute to such Holder a due bill for the shares of Company Common Stock,
rights, warrants, evidences of indebtedness, shares of capital stock, cash or
assets to which such Holder is so entitled, provided, that such due bill (i)
meets any applicable requirements of the principal national securities exchange
or other market on which the Company Common Stock is then traded and (ii)
requires payment or delivery of such shares of Company Common Stock, rights,
warrants, evidences of indebtedness, shares of capital stock, cash or assets no
later than the date of payment or delivery thereof to holders of shares of
Company Common Stock receiving such distribution.
SECTION 13.9 Restrictions on Company Common Stock Issuable Upon
Conversion.
(a) Shares of Company Common Stock to be issued upon
conversion of a Trust Security in respect of Restricted Preferred Securities
shall bear such restrictive legends as the Company may provide in accordance
with applicable law.
(b) If shares of Company Common Stock to be issued upon
conversion of a Trust Security in respect of Restricted Preferred Securities
are to be registered in a name other than that of the Holder of such Preferred
Security, then the Person in whose name such shares of Company Common Stock are
to be registered must deliver to the Conversion Agent a certificate
satisfactory to the Company and signed by such Person, as to compliance with
the restrictions on transfer applicable to such Preferred Security. Neither the
Trustee nor any Conversion Agent or Registrar shall be required to register in
a name other than that of the Holder shares of Company Common Stock issued upon
conversion of any such Trust Security in respect of such Preferred Securities
not so accompanied by a properly completed certificate.
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SECTION 13.10 Trustee Not Responsible for Determining Conversion Price
or Adjustments.
Neither the Trustee nor any Conversion Agent shall at any
time be under any duty or responsibility to any Holder of any Trust Security to
determine whether any facts exist which may require any adjustment of the
conversion price, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee nor any Conversion Agent shall be accountable with respect to the
validity or value (or the kind of account) of any shares of Company Common
Stock or of any securities or property, which may at any time be issued or
delivered upon the conversion of any Trust Security; and neither the Trustee
nor any Conversion Agent makes any representation with respect thereto. Neither
the Trustee nor any Conversion Agent shall be responsible for any failure of
the Company to make any cash payment or to issue, transfer or deliver any
shares of Company Common Stock or stock certificates or other securities or
property upon the surrender of any Trust Security for the purpose of
conversion, or, except as expressly herein provided, to comply with any of the
covenants of the Company contained in this Article Thirteen.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Trust Agreement shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
sent by facsimile or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Administrative
Trustees at the Trust's mailing address set forth below (or such other address
as the Trust may give notice of to the Holders of the Trust Securities):
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c/o Central Parking Corporation
2401 21st Avenue South
Suite 200
Nashville, Tennessee
Tel: (615) 297 4255
Fax: (615) 297 6240
Attention: Andrew M. Paalborg
(b) if given to the Property Trustee, at the mailing address
set forth below (or such other address as the Property Trustee may give notice
of to the Holders of the Trust Securities):
Chase Bank of Texas, National Association
2200 Ross Avenue
Suite 500
Dallas, Texas 75201
Tel: (214) 965 3510
Fax: (214) 965 3577
Attention: Gary Jones
(c) if given to the Delaware Trustee, at the mailing address
set forth below (or such other address as the Delaware Trustee may give notice
of to the Holders of the Trust Securities):
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Tel: (302) 428 3372
Fax: (302) 984 4903
Attention: Dennis Kelly
(d) if given to the Holder of the Common Securities, at the
mailing address of the Depositor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust):
c/o Central Parking Corporation
2401 21st Avenue South
Suite 200
Nashville, Tennessee
Tel: (615) 297 4255
Fax: (615) 297 6240
Attention: Andrew M. Paalborg
(e) if given to any other Holder, at the address set forth on
the books and records of the Trust or the Registrar, as applicable.
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All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
This Trust Agreement and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified
for United States federal income tax purposes as a grantor trust. The
provisions of this Trust Agreement shall be interpreted to further this
intention of the parties.
SECTION 14.4 Headings.
Headings contained in this Trust Agreement are inserted for
convenience of reference only and do not affect the interpretation of this
Trust Agreement or any provision hereof.
SECTION 14.5 Successors and Assigns
Whenever in this Trust Agreement any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Trust Agreement by the
Depositor and the Trustees shall bind and inure to the benefit of their
respective successors and assigns, whether so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Trust Agreement, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder
of this Trust Agreement, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
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SECTION 14.7 Counterparts.
This Trust Agreement may contain more than one counterpart of the
signature page and this Trust Agreement may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
ARTICLE XV
REGISTRATION RIGHTS
SECTION 15.1 Registration Rights.
The Holders of the Preferred Securities, the Convertible Debentures
and the Guarantee and the shares of Company Common Stock of the Depositor
issuable upon conversion of the Convertible Debentures and/or the Preferred
Securities are entitled to the benefits of the Registration Rights Agreement.
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IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the date first above written.
--------------------------------
Monroe J. Carell, Jr., as Issuer
Trustee
--------------------------------
James H. Bond, as Issuer Trustee
--------------------------------
Andrew M. Paalborg, as Issuer
Trustee
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Chase Manhattan Bank Delaware,
Delaware Trustee
By:
-----------------------------------
Name:
Title:
Chase Bank of Texas, National
Association, Property Trustee
By:
-----------------------------------
Name:
Title:
Central Parking Corporation,
Depositor
By:
-----------------------------------
Name: Monroe J. Carell, Jr.
Title: Chairman of the Board
and Chief Executive
Officer
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ANNEX I
TERMS OF TRUST SECURITIES
<PAGE> 97
ANNEX I
TERMS OF
5 1/4% CONVERTIBLE TRUST ISSUED PREFERRED SECURITIES
5 1/4% CONVERTIBLE COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated
Declaration of Trust, dated as of March 18, 1998 (as amended from time to time,
the "Trust Agreement"), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities and the
Common Securities are set out below (each capitalized term used but not defined
herein has the meaning set forth in the Trust Agreement):
1. Designation and Number.
(a) "Preferred Securities": 4,000,000 5 1/4% ConvertibLE
Trust Issued Preferred Securities of the Trust
with a liquidation amount of $25 per Preferred
Security, plus up to an additional 400,000
Preferred Securities of the Trust with a
liquidation amount of $25 per Preferred Security,
solely to cover over-allotments, if any, as
provided for in the Purchase Agreement (the
"Additional Preferred Securities"), are hereby
designated for the purposes of identification only
as "5 1/4% Convertible Trust Issued Preferred
Securities (liquidation amount of $25 per
Preferred Security)" (the "Preferred Securities").
The Preferred Security Certificates evidencing the
Preferred Securities shall be substantially in the
form of Exhibit A-1 to the Trust Agreement, with
such changes and additions thereto or deletions
therefrom as may be required by ordinary usage,
custom or practice or to conform to the rules of
any stock exchange or other organization on which
the Preferred Securities are listed.
(b) "Common Securities": 123,711 Common Securities of
the Trust with a liquidation amount of $25 per
Common Security, plus up to an additional 12,371
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Common Securities of the Trust with a liquidation amount of
$25 per Common Security to meet the capital requirements of
the Trust in the event of an issuance of Additional Preferred
Securities, if any, are hereby designated for the purposes of
identification only as "5 1/4% Convertible Common Securities
(liquidation amount of $25 per Common Security)" (the "Common
Securities"). The Common Security Certificates evidencing the
Common Securities shall be substantially in the form of
Exhibit A-2 to the Trust Agreement, with such changes and
additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice.
2. Distributions.
(a) Distributions payable on each Trust Security will
be fixed at a rate per annum of 5 1/4% (the "Coupon
Rate") of the stated liquidation amount of $25 per
Security, such rate being the rate of interest
payable on the Convertible Debentures to be held
by the Property Trustee. Distributions in arrears
for more than one quarter will bear interest
thereon compounded quarterly at the Coupon Rate
(to the extent permitted by applicable law). The
term "Distributions" as used herein includes any
such interest including any Additional Interest,
Compounded Interest and Liquidated Damages (all as
defined in the Trust Agreement), if any, payable
unless otherwise stated. A Distribution is
payable only to the extent that payments are made
in respect of the Convertible Debentures held by
the Property Trustee and to the extent the Trust
has funds available therefor. The amount of
Distributions payable for any period will be
computed for any full quarterly Distribution
period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a
full quarterly Distribution period for which
Distributions are computed, Distributions will be
computed on the basis of the actual number of days
elapsed per 90-day quarter.
(b) Except as otherwise described below, Distributions on the
Trust Securities will be cumulative, will accrue from the date
of initial issuance and will be payable quarterly in arrears,
on the following
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dates, which dates correspond to the interest payment dates on
the Convertible Debentures: January 1, April 1, July 1 and
October 1 of each year, commencing on July 1, 1998, when, as
and if available for payment by the Property Trustee. Provided
that no Event of Default has occurred and is continuing, the
Company has the right at any time during the term of the
Convertible Debentures to defer interest payments from time to
time by extending the interest payment period for successive
periods not exceeding 20 consecutive quarters (each an
"Extension Period") for each such period; provided, that no
Extension Period may extend beyond the maturity date of the
Convertible Debentures. As a consequence of such extension,
quarterly Distributions on the Trust Securities would be
deferred (though such Distributions would continue to accrue
with interest since interest would continue to accrue on the
Convertible Debentures) during any such extended interest
payment period. In the event that the Company exercises this
right, then, during such period the Company has agreed, among
other things, (a) not to declare or pay dividends on, or make
a distribution with respect to, or redeem or purchase or
acquire, or make a liquidation payment with respect to, any of
its capital stock (other than (i) purchases or acquisitions of
shares of Company Common Stock in connection with the
satisfaction by the Company of its obligations under any
employee benefit plans or the satisfaction by the Company of
its obligations pursuant to any contract or security requiring
the Company to purchase shares of Company Common Stock, (ii)
as a result of a reclassification of the Company's capital
stock or the exchange or conversion of one class or series of
the Company's capital stock for another class or series of the
Company's capital stock or (iii) the purchase of fractional
interests in shares of the Company's capital stock pursuant to
the conversion or exchange provisions of such capital stock or
the security being converted or exchanged) or make any
guarantee payments with respect to the foregoing, (b) not to
make any payment of interest, principal or premium, if any, on
or repay, repurchase or redeem any debt securities (including
guarantees) issued by the Company that rank pari passu with or
junior to the
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Convertible Debentures and (c) not to make any guarantee
payments with respect to the foregoing (other than pursuant to
the Preferred Securities Guarantee). Prior to the termination
of any such Extension Period, the Company may further extend
the interest payment period; provided, that such Extension
Period, together with all such previous and further extensions
thereof, may not exceed 20 consecutive quarters or extend
beyond the maturity date of the Convertible Debentures. Upon
the termination of any Extension Period and the payment of all
amounts then due, the Company may commence a new Extension
Period, subject to the above requirements.
(c) Distributions on the Trust Securities will be
payable to the Holders thereof as they appear on
the books and records of the Trust on the relevant
record dates. The relevant record dates shall be
the March 15, June 15, September 15 and December
15 prior to the next succeeding payment dates,
except as otherwise described in this Annex I to
the Trust Agreement. Subject to any applicable
laws and regulations and the provisions of the
Trust Agreement, each such payment in respect of
the Preferred Securities being held in book-entry
form through The Depository Trust Company (the
"Depositary") will be made as described under the
heading "Description of the Preferred Securities
-- Book-Entry Only Issuance - The Depository Trust
Company" in the Offering Memorandum. The relevant
record dates for the Common Securities shall be
the same record dates as for the Preferred
Securities. Distributions payable on any Trust
Securities that are not punctually paid on any
Distribution payment date as a result of the
Company having failed to make a payment under the
Convertible Debentures, will cease to be payable
to the Person in whose name such Trust Securities
are registered on the relevant record date, and
such defaulted Distribution will instead be
payable to the Person in whose name such Trust
Securities are registered on the special record
date or other specified date determined in
accordance with the Indenture. If Distributions
are deferred, the deferred Distributions and
accrued interest thereon shall be paid to the
holders of record of Trust Securities as they
appear on the books and records of the Trust on
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the record date next following the termination of such
deferral period. If any date on which Distributions are
payable on the Trust Securities is not a Business Day, then
payment of the Distribution payable on such date will be made
on the next succeeding day that is a Business Day (and without
any distribution or other payment in respect of any such
delay) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same
force and effect as if made on such date.
(d) In the event of an election by the Holder to
convert its Trust Securities through the
Conversion Agent into Company Common Stock of the
Company pursuant to the terms of the Trust
Securities as set forth in this Annex I to the
Trust Agreement, accrued Distributions will not be
paid on Preferred Securities that are converted,
nor will any payment, allowance or adjustment be
made for accumulated and unpaid Distributions,
whether or not in arrears, on converted Preferred
Securities except that if any Preferred Security
is converted on or after a record date for payment
of Distributions thereon, the Distributions
payable on the related payment date with respect
to such Preferred Security shall be distributed to
the Holder on such record date, despite such
conversion.
(e) In the event that there is any money or other property held by
or for the Trust that is not accounted for hereunder, such
property shall be distributed Pro Rata (as defined in
paragraph 9) among the Holders of the Trust Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary dissolution,
winding-up or termination of the Trust (each a "Liquidation"), the then Holders
of the Trust Securities on the date of the Liquidation will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
Trust Securities after satisfaction of liabilities of creditors, Distributions
in an amount equal to the aggregate of the stated liquidation amount of $25 per
Security plus accrued and unpaid Distributions thereon to
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the date of payment (such amount being the "Liquidation Distribution"), unless,
in connection with such Liquidation, Convertible Debentures in an aggregate
principal amount equal to the aggregate stated liquidation amount of such Trust
Securities, with an interest rate equal to the Coupon Rate of, and bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on, such Trust Securities, shall be distributed on a Pro Rata
basis to the Holders of the Trust Securities.
If, upon any such Liquidation, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Trust Securities shall be paid on a Pro Rata basis
in accordance with paragraph 9 below.
4. Redemption and Distribution.
(a) Upon the repayment of the Convertible Debentures,
in whole or in part, whether at maturity or upon
redemption (either at the option of the Company or
pursuant to a Tax Event), the proceeds from such
repayment or payment shall be simultaneously
applied to redeem Trust Securities having an
aggregate liquidation amount equal to the
aggregate principal amount of the Convertible
Debentures so repaid or redeemed at a redemption
price equal to the redemption price of such repaid
or redeemed Convertible Debentures, together with
accrued and unpaid Distributions thereon through
the date fixed for redemption, payable in cash
(the "Redemption Price").
(b) If fewer than all the outstanding Trust Securities are to be
so redeemed, the Common Securities and the Preferred
Securities will be redeemed Pro Rata and the Preferred
Securities to be redeemed will be as described in paragraph
4(f)(ii) below.
(c) If, at any time, a Tax Event or an Investment
Company Event (each as defined below and each a
"Special Event") shall occur and be continuing,
the Administrative Trustees shall, unless the
Convertible Debentures are redeemed in the limited
circumstances in relation to a Tax Event described
in the following paragraph of this paragraph 4(c),
dissolve the Trust and, after satisfaction of
creditors of the Trust, if any, cause Convertible
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Debentures held by the Property Trustee (w) having an
aggregate principal amount equal to the aggregate stated
liquidation amount of, (x) an interest rate identical to the
Coupon Rate of, (y) accrued and unpaid interest on, and (z)
the same record dates for payment as, the Trust Securities, to
be distributed to the Holders of the Trust Securities in
liquidation of such Holders' interest in the Trust on a Pro
Rata basis, within 90 days following the occurrence of such
Special Event (the "90 Day Period"); provided, however, that
in the case of a Tax Event, such dissolution and distribution
shall be conditioned on the Property Trustee's receipt of an
opinion of a nationally recognized independent tax counsel
experienced in such matters (a "No Recognition Opinion"),
which opinion may rely on published revenue rulings of the
Internal Revenue Service, to the effect that the Holders of
the Preferred Securities will not recognize any income, gain
or loss for United States federal income tax purposes as a
result of such dissolution and distribution of Convertible
Debentures, and provided, further, that if at the time there
is available to the Trust the opportunity to eliminate, within
the 90 Day Period, the Special Event by taking some
ministerial action, such as filing a form or making an
election, or pursuing some other similar reasonable measure
that in the sole judgment of the Company has, or will cause,
no adverse effect on the Trust, the Company or the Holders of
the Trust Securities and will involve no material cost
("Ministerial Action"), the Trust will pursue such Ministerial
Action in lieu of dissolution.
If in the event of a Tax Event, (i) after
receipt of a Tax Event Opinion (as defined below) by the
Trust, the Property Trustee has received an opinion (a
"Redemption Tax Opinion") of a nationally recognized
independent tax counsel experienced in such matters that, as a
result of a Tax Event, there is more than an insubstantial
risk that the Company would be precluded from deducting the
interest on the Convertible Debentures for United States
federal income tax purposes even if the Convertible Debentures
were distributed to the Holders of Trust Securities in
liquidation of such Holders' interest in the Trust as
described in this paragraph 4(c), or (ii) after
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receipt of a Tax Event Opinion, the Administrative Trustees
shall have been informed by such tax counsel that a No
Recognition Opinion cannot be delivered to the Trust, the
Company shall have the right, upon not less than 30 nor more
than 60 days' notice, to redeem the Convertible Debentures in
whole (but not in part) for cash within 90 days following the
occurrence of such Tax Event, and promptly following such
redemption, the Trust Securities shall be redeemed at the
Redemption Price on a Pro Rata basis at $25 per Trust Security
plus accrued and unpaid distributions; provided, however, that
if at the time there is available to the Company or the Trust
the opportunity to eliminate, within such 90 Day Period, the
Tax Event by taking some Ministerial Action that has no
adverse effect on the Trust, the Holders of Trust Securities
or the Company, the Trust or the Company will pursue such
Ministerial Action in lieu of redemption.
"Tax Event" means that the Property Trustee
shall have received an opinion of a nationally recognized
independent tax counsel experienced in such matters (a
"Dissolution Tax Opinion") to the effect that, as a result of
(a) any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision
or taxing authority thereof or therein, (b) any amendment to,
or change in, an interpretation or application of any such
laws or regulations by any legislative body, court,
governmental agency or regulatory authority (including the
enactment of any legislation and the publication of any
judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position
with respect to such laws or regulations that differs from the
theretofore generally accepted position or (d) any action
taken by any governmental agency or regulatory authority,
which amendment or change is enacted, promulgated, issued or
announced or which interpretation or pronouncement is issued
or announced or which action is taken, in each case after the
date of the Offering Memorandum (collectively, a "Change in
Tax Law"), there is more than an insubstantial risk that (i)
the Trust is, or will be within 90 days of the date thereof,
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subject to United States federal income tax with respect to
interest accrued or received on the Convertible Debentures,
(ii) the Trust is, or will be within 90 days of the date
thereof, subject to more than a de minimis amount of other
taxes, duties or other governmental charges, or (iii) interest
payable by the Company to the Trust on the Convertible
Debentures is not, or within 90 days of the date thereof will
not be, deductible by the Company for United States federal
income tax purposes. Notwithstanding anything in the previous
sentence to the contrary, a Tax Event shall not include any
Change in Tax Law that requires the Company for United States
federal income tax purposes to defer taking a deduction for
any original issue discount ("OID") that accrues with respect
to the Convertible Debentures until the interest payment
related to such OID is paid by the Company in money; provided,
that such Change in Tax Law does not create more than an
insubstantial risk that the Company will be prevented from
taking a deduction for OID accruing with respect to the
Convertible Debentures at a date that is no later than the
date the interest payment related to such OID is actually paid
by the Company in money.
"Investment Company Event" means that the
Property Trustee shall have received an opinion of a
nationally recognized independent counsel experienced in
practice under the Investment Company Act (an "Investment
Company Event Opinion") that, as a result of a change in law
or regulation or a change in interpretation or application of
law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"),
there is more than an insubstantial risk that the Trust is or
will be considered an Investment Company that is required to
be registered under the Investment Company Act, which Change
in 1940 Act Law becomes effective on or after the date of the
Offering Memorandum.
On the date fixed for any distribution of
Convertible Debentures, upon dissolution of the Trust: (i) the
Trust Securities will no longer be deemed to be outstanding,
(ii) the Depositary or its nominee, as the record holder of
such Trust
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Securities, will receive a registered global certificate or
certificates representing the Convertible Debentures to be
delivered upon such distribution and (iii) certificates
representing Trust Securities not held by Depositary or its
nominee will be deemed to represent beneficial interests in
Convertible Debentures having an aggregate principal amount
equal to the stated liquidation amount, and bearing accrued
and unpaid interest equal to accrued and unpaid Distributions,
on such Trust Securities until such certificates are presented
to the Company or its agent for transfer or reissuance.
(d) The Trust may not redeem fewer than all the outstanding Trust
Securities unless all accrued and unpaid Distributions have
been paid in cash on all Trust Securities for all quarterly
Distribution periods terminating on or before the date fixed
for redemption.
(e) If the Convertible Debentures are distributed to the Holders
of the Trust Securities, pursuant to the terms of the
Indenture, the Company will use its best efforts to have the
Convertible Debentures listed on the New York Stock Exchange
or on such other exchange as the Preferred Trust Securities
were listed immediately prior to the distribution of the
Convertible Debentures.
(f) Redemption or Distribution Procedures.
(i) Notice of any redemption of, or notice of
distribution of Convertible Debentures in
exchange for, the Trust Securities (a
"Redemption/Distribution Notice") will be
given by the Trust by mail to each Holder
of Trust Securities to be redeemed or
exchanged not fewer than 30 nor more than
60 days before the date fixed for
redemption or exchange thereof, which, in
the case of a redemption, will be the date
fixed for redemption of the Convertible
Debentures. For purposes of the
calculation of the date of redemption or
exchange and the dates on which notices are
given pursuant to this paragraph 4(f)(i), a
Redemption/Distribution Notice shall be
deemed to be given on the day such notice
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is first mailed by first-class mail, postage
prepaid, to Holders of Trust Securities. Each
Redemption/Distribution Notice shall be addressed
to the Holders of Trust Securities at the address
of each such Holder appearing in the books and
records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall
affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding
Trust Securities are to be redeemed, then the
aggregate liquidation preference of such Trust
Securities to be redeemed shall be allocated pro
rata among the Preferred Securities and the Common
Securities, it being understood that, in respect of
Preferred Securities registered in the name of and
held of record by the Depositary or its nominee (or
any successor Clearing Agency or its nominee), the
distribution of the proceeds of such redemption
will be made to each Clearing Agency participant
(or Person on whose behalf such nominee holds such
securities) in accordance with the procedures
applied by such agency or nominee. The particular
Preferred Securities to be redeemed shall be
selected not more than 60 days prior to the
redemption date by the Property Trustee from the
outstanding Preferred Securities not previously
called for redemption, by lot or by such method as
the Property Trustee shall deem fair and
appropriate and which may provide for the selection
for redemption of portions (equal to $25 or an
integral multiple of $25 in excess thereof) of the
liquidation preference of the Preferred Securities.
The Property Trustee shall promptly notify the
Conversion Agent in writing of the Preferred
Securities selected for redemption and, in the case
of any Preferred Securities selected for partial
redemption, the liquidation preference thereof to
be redeemed.
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(iii) If Trust Securities are to be redeemed and the
Trust gives a Redemption/Distribution Notice (which
notice is irrevocable), then, provided that the
Company has paid the Property Trustee a sufficient
amount of cash in connection with the related
redemption or maturity of the Convertible
Debentures, (A) with respect to Preferred
Securities held in book-entry form, by 12:00 noon,
New York City time, on the redemption date, the
Trust will deposit irrevocably with the Depositary
or its nominee (or successor Clearing Agency or its
nominee) funds sufficient to pay the applicable
Redemption Price with respect to such Preferred
Securities and will give the Depositary irrevocable
instructions and authority to pay the applicable
Redemption Price to the Holders of such Preferred
Securities represented by the Global Certificates,
and (B) with respect to Preferred Securities issued
in definitive form and Common Securities, the Trust
will irrevocably deposit with the Paying Agent
funds sufficient to pay the amount payable on
redemption to the Holders of such Trust Securities
upon surrender of their certificates. If a
Redemption/Distribution Notice shall have been
given and funds deposited as required, then on the
date of such deposit, all rights of Holders of such
Trust Securities so called for redemption will
cease, except (i) the right of the Holders of such
Trust Securities to receive the Redemption Price,
but without interest thereon, and (ii) the right to
convert such Trust Securities into Company Common
Stock in the manner described herein through the
close of business on the date fixed for redemption.
Neither the Administrative Trustees nor the Trust
shall be required to register or cause to be
registered the transfer of any Trust Securities
that have been so called for redemption. If any
date fixed for redemption of Trust Securities is
not a Business Day, then payment of the amount
payable on such date will be made on the next
succeeding day that is a Business
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Day (without any interest or other payment in
respect of any such delay) except that, if such
Business Day falls in the next calendar year, such
payment will be made on the immediately preceding
Business Day, in each case with the same force and
effect as if made on such date fixed for
redemption. If payment of the Redemption Price in
respect of any Trust Securities is improperly
withheld or refused and not paid either by the
Trust or by the Company as guarantor pursuant to
the relevant Securities Guarantee, Distributions on
such Trust Securities will continue to accrue at
the then applicable rate, from the original
redemption date to the date of payment, in which
case the actual payment date will be considered the
date fixed for redemption for purposes of
calculating the amount payable upon redemption
(other than for purposes of calculating any
premium).
(iv) In the event of any redemption in part, the Trust
shall not be required to (i) issue, register the
transfer of or exchange of any Preferred Security
during a period beginning at the opening of
business 15 days before any selection for
redemption of Preferred Securities and ending at
5:00 p.m. (New York City time) on the earliest date
in which the relevant notice of redemption is
deemed to have been given to all holders of
Preferred Securities to be so redeemed and (ii)
register the transfer of or exchange of any
Preferred Securities so selected for redemption, in
whole or in part, except for the unredeemed portion
of any Preferred Securities being redeemed in part.
(v) Redemption/Distribution Notices shall be sent by
the Administrative Trustees on behalf of the Trust
to (A) in the case of Preferred Securities held in
book-entry form, the Depositary and, in the case of
Trust Securities held in definitive form, the
Holders of such certificates and (B) in respect of
the Common Securities, the Holder thereof.
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(vi) Subject to the foregoing and applicable law
(including, without limitation, United States
federal securities laws), the Company or any of its
subsidiaries may at any time and from time to time
purchase outstanding Preferred Securities by
tender, in the open market or by private agreement.
5. Conversion Rights.
The Holders of Trust Securities shall have the right at any time prior
to 5:00 p.m. (New York City time) on the Business Day immediately
preceding the date of repayment of such Trust Securities, whether at
maturity or upon redemption (either at the option of the Company or
pursuant to a Tax Event), at their option, to cause the Conversion
Agent to convert Trust Securities, on behalf of the converting Holders,
into shares of Company Common Stock of the Company in the manner
described in, and subject to all of the terms and conditions of,
Article Thirteen of the Trust Agreement.
6. Voting Rights - Preferred Securities.
(a) Except as provided under paragraph 6(b) and paragraph 8, in
the Business Trust Act and as otherwise required by law and
the Trust Agreement, the Holders of the Preferred Securities
will have no voting rights. No vote or consent of the Holders
of the Preferred Securities will be required for the Trust to
redeem and cancel Preferred Securities or to distribute the
Convertible Debentures in accordance with the Trust Agreement
and the terms of the Trust Securities.
(b) Subject to the requirements set forth in this paragraph 6(b),
the Holders of a majority in liquidation amount of the
Preferred Securities, voting separately as a class, may direct
the time, method, and place of conducting any proceeding for
any remedy available to the Property Trustee and direct the
exercise of any trust or power conferred upon the Property
Trustee under the Trust Agreement, including the right to
direct the Property Trustee, as holder of the Convertible
Debentures, to (i) exercise the remedies available to it under
the Indenture as a holder of the Convertible Debentures, (ii)
waive any past
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<PAGE> 111
default and its consequences that are waivable under the
Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Convertible
Debentures shall be due and payable, or (iv) consent to any
amendment, modification or termination of the Indenture or the
Convertible Debentures where such consent shall be required;
provided, however, that where a consent or action under the
Indenture would require the consent or act of the Holders of a
Super Majority of Convertible Debentures affected thereby, the
Property Trustee may only give such consent or take such
action at the written direction of the Holders of at least the
proportion in liquidation amount of the Preferred Securities
that the relevant Super Majority represents of the aggregate
principal amount of the Convertible Debentures outstanding.
The Property Trustee shall be under no obligation to revoke
any action previously authorized or approved by a vote of the
Holders of the Preferred Securities. Other than with respect
to directing the time, method and place of conducting any
remedy available to the Property Trustee or the Indenture
Trustee as set forth above, the Property Trustee shall be
under no obligation to take any action in accordance with the
directions of the Holders of the Preferred Securities under
this paragraph 6 unless the Property Trustee has obtained an
opinion of independent tax counsel to the effect that for the
purposes of United States federal income tax the Trust will
not be classified as other than a grantor trust on account of
such action and each Holder will be treated as owning an
undivided beneficial interest in the Convertible Debentures.
If the Property Trustee fails to enforce its rights under the
Convertible Debentures after a Holder of Preferred Securities
has made a written request, such Holder of Preferred
Securities may directly institute a legal proceeding against
the Company to enforce the Property Trustee's rights under the
Convertible Debentures without first instituting any legal
proceeding against the Property Trustee or any other Person.
Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to
the failure of the Company to pay interest or principal on the
Convertible Debentures on the
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date such interest or principal is otherwise payable (or in
the case of redemption on the date fixed for redemption), then
a Holder of Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder (a
"Direct Action") of the principal of or interest on
Convertible Debentures having a principal amount equal to the
aggregate liquidation amount of the Preferred Securities of
such Holder on or after the respective due date specified in
the Convertible Debentures. Except as provided in the
preceding sentence, the Holders of Preferred Securities will
not be able to exercise directly any other remedy available to
the holders of the Convertible Debentures. In connection with
such Direct Action, the Company will be subrogated to the
rights of such Holder of Preferred Securities under the Trust
Agreement to the extent of any payment made by the Company to
such Holder of Preferred Securities in such Direct Action.
(c) Any required approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of
Preferred Securities convened for such purpose, at a meeting
of all of the Holders of Trust Securities in the Trust or
pursuant to written consent. The Property Trustee will cause a
notice of any meeting at which Holders of Preferred Securities
are entitled to vote, or of any matter upon which action by
written consent of such Holders is to be taken, to be mailed
to each Holder of record of Preferred Securities. Each such
notice will include a statement setting forth the following
information (i) the date of such meeting or the date by which
such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such
Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the
delivery of proxies or consents.
(d) Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances
described above, any of the Preferred Securities that are
owned by the Company or any Affiliate of the Company shall not
be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if
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such Preferred Securities were not outstanding.
7. Voting Rights - Common Securities.
(a) Except as provided under paragraphs 7(b) and (c) and paragraph
8, in the Business Trust Act and as otherwise required by law
and the Trust Agreement, the Holders of the Common Securities
will have no voting rights. No vote or consent of the Holders
of the Common Securities will be required for the Trust to
redeem and cancel Common Securities or to distribute the
Convertible Debentures in accordance with the Trust Agreement
and the terms of the Trust Securities.
(b) The Holders of the Common Securities are entitled, in
accordance with Article V of the Trust Agreement, to vote to
appoint, remove or replace any Trustee or to increase or
decrease the number of Trustees.
(c) Subject to Section 2.6 of the Trust Agreement and only after
the Event of Default with respect to the Preferred Securities
has been cured, waived, or otherwise eliminated and subject to
the requirements of the penultimate sentence of this paragraph
7(c), the Holders of a majority in liquidation amount of the
Common Securities, voting separately as a class, may direct
the time, method, and place of conducting any proceeding for
any remedy available to the Property Trustee, or exercising
any trust or power conferred upon the Property Trustee under
the Trust Agreement, including (i) directing the time, method,
place of conducting any proceeding for any remedy available to
the Indenture Trustee, or exercising any trust or power
conferred on the Indenture Trustee with respect to the
Convertible Debentures, (ii) waive any past default and its
consequences that are waivable under Section 513 of the
Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Convertible
Debentures shall be due and payable, or (iv) consent to any
amendment, modification or termination of the Indenture or the
Convertible Debentures where such consent shall be required;
provided that, where a consent or action under the --------
Indenture would require the consent or act of the Holders of a
Super Majority in principal amount of
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Convertible Debentures affected thereby, the Property Trustee
may only give such consent or take such action at the written
direction of the Holders of at least the proportion in
liquidation amount of the Common Securities which the relevant
Super Majority represents of the aggregate principal amount of
the Convertible Debentures outstanding. Pursuant to this
paragraph 7(c), the Property Trustee shall not revoke any
action previously authorized or approved by a vote of the
Holders of the Preferred Securities. Other than with respect
to directing the time, method and place of conducting any
remedy available to the Property Trustee or the Indenture
Trustee as set forth above, the Property Trustee shall be
under no obligation to take any action in accordance with the
directions of the Holders of the Common Securities under this
paragraph 7(c) unless the Property Trustee has obtained an
opinion of independent tax counsel to the effect that for the
purposes of United States federal income tax the Trust will
not be classified as other than a grantor trust on account of
such action and each Holder will be treated as owning an
undivided beneficial interest in the Convertible Debentures.
If the Property Trustee fails to enforce its rights under the
Convertible Debentures after a Holder of Common Securities has
made a written request, such Holder of Common Securities may
institute a legal proceeding directly against the Company or
any other Person to enforce the Property Trustee's rights
under the Convertible Debentures, without first instituting
any legal proceeding against the Property Trustee or any other
Person.
(d) Any approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities
convened for such purpose, at a meeting of all of the Holders
of Securities in the Trust or pursuant to written consent. The
Administrative Trustees will cause a notice of any meeting at
which Holders of Common Securities are entitled to vote, or of
any matter upon which action by written consent of such
Holders is to be taken, to be mailed to each Holder of record
of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the
date by which such
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<PAGE> 115
action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders
are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of
proxies or consents.
8. Amendments to Trust Agreement and Indenture.
(a) In addition to any requirements under Section 11.1 of the
Trust Agreement, if any proposed amendment to the Trust
Agreement provides for, or the Administrative Trustees
otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of
the Trust Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than as described in Section
3.10 of the Trust Agreement, then the Holders of Trust
Securities as a class will be entitled to vote on such
amendment or proposal (but not on any other amendment or
proposal) and such amendment or proposal shall not be
effective except with the approval of the Holders of a Super
Majority in liquidation amount of the Trust Securities
affected thereby, voting together as a single class; provided,
however, if any amendment or proposal referred to in clause
(i) above would adversely affect only the Preferred Securities
or only the Common Securities, then only the affected class
will be entitled to vote on such amendment or proposal and
such amendment or proposal shall not be effective except with
the approval of a Super Majority in liquidation amount of such
class of Trust Securities.
(b) In the event the consent of the Property Trustee as the holder
of the Convertible Debentures is required under the Indenture
with respect to any amendment, modification or termination on
the Indenture or the Convertible Debentures, the Property
Trustee shall request the written direction of the Holders of
the Trust Securities with respect to such amendment,
modification or termination and shall vote with respect to
such amendment, modification or termination as directed by a
majority in liquidation amount of the Trust Securities voting
together as a single class;
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provided, however, that where a consent under the Indenture
would require a Super Majority in aggregate principal amount
of the Convertible Debentures, the Property Trustee may only
give such consent at the written direction of the Holders of
at least the same proportion in aggregate stated liquidation
preference of the Trust Securities; provided, further, that
the Property Trustee shall not take any action in accordance
with the directions of the Holders of the Trust Securities
under this paragraph 8(b) unless the Property Trustee has
obtained an opinion of tax counsel to the effect that for the
purposes of United States federal income tax the Trust will
not be classified as other than a grantor trust on account of
such action.
9. Pro Rata.
A reference in these terms of the Trust Securities to any
payment, distribution or treatment as being "Pro Rata" shall mean pro rata to
each Holder of Trust Securities according to the aggregate liquidation amount of
the Trust Securities held by the relevant Holder in relation to the aggregate
liquidation amount of all Trust Securities outstanding unless, in relation to a
payment, an Event of Default under the Trust Agreement has occurred and is
continuing, in which case any funds available to make such payment shall be paid
first to each Holder of the Preferred Securities pro rata according to the
aggregate liquidation amount of Preferred Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Preferred Securities
outstanding, and only after satisfaction of all amounts owed to the Holders of
the Preferred Securities, to each Holder of Common Securities pro rata according
to the aggregate liquidation amount of Common Securities held by the relevant
Holder relative to the aggregate liquidation amount of all Common Securities
outstanding.
10. Ranking.
The Preferred Securities rank pari passu and payment thereon
shall be made Pro Rata with the Common Securities, provided that, if on any
distribution date or redemption date an Event of Default occurs and is
continuing under the Indenture in respect of the Convertible Debentures held by
the Property Trustee, the rights of Holders of the Common Securities to payment
in respect of Distributions and
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payments upon liquidation, redemption and otherwise are subordinated to the
rights to payment of the Holders of the Preferred Securities.
11. Subordination
Payment of distributions on, and the amount payable upon
redemption of, the Trust Securi ties, as applicable, shall be made pro rata
based on the liquidation amount of the Trust Securities; provided, however,
that, if on any distribution date or redemption date an Event of Default shall
have occurred and be continuing, no payment of any distribution on, or amount
payable upon redemption of, any Common Security, and no other payment on account
of the redemption, liquidation or other acquisition of Common Securities, shall
be made unless payment in full in cash of all accumulated and unpaid
distributions on all outstanding Preferred Securities for all distribution
periods terminating on or prior thereto, or in the case of payment of the amount
payable upon redemption of the Preferred Securities, the full amount of such
amount in respect of all outstanding Preferred Securities shall have been made
or provided for, and all funds available to the Property Trustee shall first be
applied to the payment in full in cash of all distributions on, or the amount
payable upon redemption of, Preferred Securities then due and payable.
In the case of any Event of Default, the holder of Common Securities
will be deemed to have waived any such Event of Default until all such Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated. Until any such Events of Default with respect to the
Preferred Securities have been so cured, waived or otherwise eliminated, the
Property Trustee shall act solely on behalf of the holders of the Preferred
Securities and not the holder of the Common Securities, and only the holders of
the Preferred Securities will have the right to direct the Property Trustee to
act on their behalf.
12. Acceptance of Securities Guarantee and Indenture.
Each Holder of Preferred Securities and Common Securities, by
the acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
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13. No Preemptive Rights.
The Holders of the Trust Securities shall have no preemptive
rights to subscribe for any additional securities.
14. Miscellaneous.
These terms constitute a part of the Trust Agreement.
The Company will provide a copy of the Trust Agreement, the
Preferred Securities Guarantee or the Common Securities Guarantee (as may be
appropriate), and the Indenture to a Holder without charge on written request to
the Company at its principal place of business.
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<PAGE> 119
EXHIBIT A-1
FORM OF PREFERRED SECURITY
<PAGE> 120
EXHIBIT A-1
FORM OF PREFERRED SECURITY
[FACE OF SECURITY]
[Include if Preferred Security is in global form: THIS SECURITY IS A
GLOBAL CERTIFICATE WITHIN THE MEANING OF THE TRUST AGREEMENT
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN
PART FOR A PREFERRED SECURITY REGISTERED, AND NO TRANSFER OF THIS
PREFERRED SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME
OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT.]
[Include if Preferred Security is in global form and The Depository
Trust Company is the Depositary: UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED SIGNATORY OF THE DEPOSITORY TRUST COMPANY ("DTC") TO
THE TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.]
"THE SECURITIES EVIDENCED HEREBY AND THE COMMON STOCK ISSUABLE UPON
THEIR CONVERSION AND THE CONVERTIBLE DEBENTURES THAT MAY BE ISSUED IN
EXCHANGE THEREFOR HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A
<PAGE> 121
PERSON WHO THE TRANSFEROR AND ANY PERSON ACTING ON BEHALF OF SUCH
TRANSFEROR REASONABLY BELIEVE IS A QUALIFIED INSTITUTIONAL BUYER
ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A UNDER THE
SECURITIES ACT, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903
OR RULE 904 OR REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN
COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS."
"THE PREFERRED SECURITIES, THE CONVERTIBLE DEBENTURES, THE SHARES OF
COMPANY COMMON STOCK ISSUABLE UPON CONVERSION OF THE PREFERRED
SECURITIES AND THE CONVERTIBLE DEBENTURES, AND THE GUARANTEE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE OFFERED, SOLD OR DELIVERED IN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON UNLESS SUCH SECURITIES ARE
REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE."
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<PAGE> 122
Cert. No.: No. of Preferred Securities:
CUSIP NO.
Preferred Securities
of
Central Parking Finance Trust
5 1/4% Convertible Preferred Securities
(liquidation amount $25 per Convertible Preferred Security)
Central Parking Finance Trust, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"), hereby certifies
that ____________________________ (the "Holder") is the registered owner of
preferred securities of the Trust representing undivided beneficial interests in
the assets of the Trust designated the "5 1/4% Convertible Preferred Securities
(liquidation amount $25 per Convertible Preferred Security)" (the "Preferred
Securities"). The Preferred Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Preferred Securities represented hereby are issued and shall in all respects
be subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust dated as of March 18, 1998, as the same may be amended from time to
time, including the designation of the terms of the Preferred Securities as set
forth in Annex I to the Trust Agreement (the "Trust Agreement"). Capitalized
terms used herein but not defined shall have the meaning given them in the Trust
Agreement. The Holder is entitled to the benefits of the Preferred Securities
Guarantee to the extent provided therein. The Company will provide a copy of the
Trust Agreement, the Preferred Securities Guarantee and the Indenture to a
Holder without charge upon written request to the Trust at its principal place
of business.
Reference is hereby made to select provisions of the Preferred
Securities set forth on the reverse hereof, which select provisions shall for
all purposes have the same effect as if set forth at this place.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
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<PAGE> 123
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Convertible Debentures as indebtedness and the
Preferred Securities as evidence of indirect beneficial ownership in the
Convertible Debentures.
Unless the Property Trustee's Certificate of Authentication
hereon has been properly executed, these Preferred Securities shall not be
entitled to any benefit under the Trust Agreement or be valid or obligatory for
any purpose.
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<PAGE> 124
IN WITNESS WHEREOF, the Trust has caused this instrument to be
duly executed.
Dated:
Central Parking Finance Trust
By:
------------------------
Name:
Title:
Attest:
- - -----------------------
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.
Dated:
Chase Bank of Texas, National
Association, as Property
Trustee
By:
------------------------
Authorized Signatory
A-1-5
<PAGE> 125
[REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed
at a rate per annum of 5 1/4% (the "Coupon Rate") of the stated liquidation
amount of $25 per Preferred Security, such rate being the rate of interest
payable on the Convertible Debentures to be held by the Property Trustee.
Distributions in arrears for more than one quarter will bear interest thereon
compounded quarterly at the Coupon Rate (to the extent permitted by applicable
law). The term "Distributions" as used herein includes any such interest
including any Additional Interest, Compounded Interest and Liquidated Damages,
if any, payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Convertible Debentures held by
the Property Trustee and to the extent the Trust has funds available therefor.
The amount of Distributions payable for any period will be computed for any full
quarterly Distribution period on the basis of a 360-day year of twelve 30-day
months, and for any period shorter than a full quarterly Distribution period for
which Distributions are computed, Distributions will be computed on the basis of
the actual number of days elapsed per 90-day quarter.
Except as otherwise described below, Distributions on the
Preferred Securities will be cumulative, will accrue from the date of initial
issuance and will be payable quarterly in arrears, on the following dates, which
dates correspond to the interest payment dates on the Convertible Debentures:
January 1, April 1, July 1 and October 1 of each year, commencing on July 1,
1998, when, as and if available for payment by the Property Trustee. The Company
has the right at any time during the term of the Convertible Debentures to defer
interest payments from time to time by extending the interest payment period for
successive periods not exceeding 20 consecutive quarters (each an "Extension
Period") for each such period; provided, that no Extension Period may extend
beyond the maturity date of the Convertible Debentures. As a consequence of such
extension, quarterly Distributions on the Preferred Securities would be deferred
(though such Distributions would continue to accrue with interest since interest
would continue to accrue on the Convertible Debentures) during any such extended
interest payment period. In the event that the Company exercises this right,
then, during such period the Company has agreed, among other things, (a) not to
declare or pay dividends on, or make a distribution with respect to, or redeem
or
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<PAGE> 126
purchase or acquire, or make a liquidation payment with respect to, any of its
capital stock (other than (i) purchases or acquisitions of shares of Company
Common Stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans or the satisfaction by the Company
of its obligations pursuant to any contract or security requiring the Company to
purchase shares of Company Common Stock, (ii) as a result of a reclassification
of the Company's capital stock or the exchange or conversion of one class or
series of the Company's capital stock for another class or series of the
Company's capital stock or (iii) the purchase of fractional interests in shares
of the Company's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged) or make any
guarantee payments with respect to the foregoing, (b) not to make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities (including guarantees) issued by the Company that rank pari
passu with or junior to the Convertible Debentures and (c) not to make any
guarantee payments with respect to the foregoing (other than pursuant to the
Preferred Securities Guarantee). Prior to the termination of any such Extension
Period, the Company may further extend the interest payment period; provided,
that such Extension Period, together with all such previous and further
extensions thereof, may not exceed 20 consecutive quarters or extend beyond the
maturity date of the Convertible Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, the Company may
commence a new Extension Period, subject to the above requirements.
Distributions on the Preferred Securities will be payable to
the Holders thereof as they appear on the books and records of the Trust on the
relevant record dates. The relevant record dates shall be the March 15, June 15,
September 15 and December 15 prior to the next such succeeding payment date,
except as otherwise described in the Trust Agreement.
The Preferred Securities shall be redeemable as provided in
the Trust Agreement.
The Preferred Securities shall be convertible into shares of
common stock of Central Parking Corporation ("Company Common Stock"), through
(i) the exchange of Preferred Securities for a portion of the Convertible
Debentures and (ii) the immediate conversion of such
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<PAGE> 127
Convertible Debentures into Company Common Stock, in the manner and according to
the terms set forth in Article Thirteen of the Trust Agreement.
A-1-8
<PAGE> 128
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Security Certificate on the
books of the Trust. The agent may substitute another to act
for him or her.
Date:
-----------------------
- - ------------------------------------------
(Sign exactly as your name appears on the
other side of this Preferred Security
Certificate)
Signature Guarantee:*
-------------------------------
- - --------
* (Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Registrar, which requirements include membership or participation
in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as
amended.)
A-1-9
<PAGE> 129
[Include the following if the Preferred Security bears a
Restricted Securities Legend -
In connection with any transfer of any of the Preferred Securities evidenced by
this certificate, the undersigned confirms that such Preferred Securities are
being:
CHECK ONE BOX BELOW
(1) [_] exchanged for the undersigned's own account
without transfer; or
(2) [_] transferred pursuant to and in compliance with
Rule 144A under the Securities Act of 1933, as
amended (the "Securities Act"); or
(3) [_] transferred pursuant to and in compliance with
Regulation S under the Securities Act; or
(4) [_] transferred pursuant to another available
exemption from the registration requirements of
the Securities Act; or
(5) [_] transferred pursuant to an effective Registration
Statement under the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Preferred Securities evidenced by this certificate in the name of any person
other than the registered Holder thereof; provided, however, that if box (3)or
(4) is checked, the Trustee may require, prior to registering any such transfer
of the Preferred Securities, such legal opinions, certifications and other
information as the Company has reasonably requested in writing and directed the
Trustee to require confirmation that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act, such as the exemption provided by Rule 144
under such Act; provided, further, that after the date that a Shelf Registration
Statement under the
A-1-10
<PAGE> 130
Securities Act has been filed and so long as such Shelf Registration Statement
continues to be effective, the Trustee may only permit transfers for which box
(5) has been checked.
----------------------
Signature
Signature Guarantee:**
- - --------
** Signature must be guaranteed by an institution which is a member of one
of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee programs
acceptable to the Trustee.
A-1-11
<PAGE> 131
- - -----------------------------------------------------------------
- - -------------
[TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
--------------------------------- --------------------
--------------
NOTICE: To be executed by an
executive officer]
A-1-12
<PAGE> 132
CONVERSION REQUEST
To: Chase Bank of Texas, National Association, as Property
Trustee of Central Parking Finance Trust
The undersigned owner of these Preferred Securities hereby
irrevocably exercises the option to convert these Preferred Securities, or the
portion below designated, into common stock of Central Parking Corporation (the
"Company Common Stock") in accordance with the terms of the Amended and Restated
Declaration of Trust (the "Trust Agreement"), dated as of March 18, 1998, by
Monroe J. Carell, Jr., James H. Bond and Andrew M. Paalborg, as Administrative
Trustees, Chase Manhattan Bank Delaware, as Delaware Trustee, Chase Bank of
Texas, National Association, as Property Trustee, Central Parking Corporation,
as Depositor, and by the Holders, from time to time, of individual beneficial
interests in the Trust to be issued pursuant to the Trust Agreement. Pursuant to
the aforementioned exercise of the option to convert these Preferred Securities,
the undersigned hereby directs the Conversion Agent (as that term is defined in
the Trust Agreement) to (i) exchange such Preferred Securities for a portion of
the Convertible Debentures (as that term is defined in the Trust Agreement) held
by the Trust (at the rate of exchange specified in the terms of the Trust
Agreement) and (ii) immediately convert such Convertible Debentures on behalf of
the undersigned into Company Common Stock (at the conversion rate specified in
the terms of the Trust Agreement).
The undersigned also hereby directs the Conversion Agent that
the shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
Any holder, upon the exercise of conversion rights in
accordance with the terms of the Trust Agreement and the Preferred Securities
agrees to be bound by the terms of the Registration Rights Agreement relating to
the Company Common Stock issuable upon conversion of the Preferred Securities.
Date:
----------------
A-1-13
<PAGE> 133
Number of Preferred Securities to be converted:
- - -------------------
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Company Common Stock are to be
issued, along with the address or addresses of such person or persons.
- - -----------------------------------------------------------------
- - -----------------------------------------------------------------
- - -----------------------------------------------------------------
- - ------------------------------------------
(Sign exactly as your name appears on the
other side of this Preferred Security
Certificate) (for conversion only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number.
- - ------------------------------------------
- - ------------------------------------------
- - ------------------------------------------
- - ------------------------------------------
Signature Guarantee:*
-------------------------------
- - --------
* (Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.)
A-1-14
<PAGE> 134
NOTICE OF CONVERSION
To: Chase Bank of Texas, National Association, as Property
Trustee of Central Parking Finance Trust
The undersigned owner of this Common Security hereby
irrevocably exercises the option to convert this Security, or the portion below
designated, into common stock of Central Parking Corporation (the "Company
Common Stock") in accordance with the terms of the Indenture, between the
Company and Chase Bank of Texas, National Association, as Indenture Trustee, and
directs that the shares issuable and deliverable upon conversion, together with
any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in the
assignment below. If shares are to be issued in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
Any Holder, upon the exercise of its conversion rights in
accordance with the terms of the Indenture and the Common Security, agrees to be
bound by the terms of the Registration Rights Agreement relating to the Company
Common Stock issuable upon conversion of the security.
Date:
----------------
Number of Common Securities to be converted ($25 or integral
multiples thereof):
-------------------
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Company Common Stock are to be
issued, along with the address or addresses of such person or persons.
- - ------------------------------------------------------------
- - ------------
- - ------------------------------------------------------------
- - ------------
- - ------------------------------------------------------------
- - ------------
- - ------------------------------------------
(Sign exactly as your name appears on the
the Security) (for conversion only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number.
- - -------------------------------------------
- - -------------------------------------------
- - -------------------------------------------
- - -------------------------------------------
Signature Guarantee:*
-----------------------
- - -------------------
* (Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Registrar, which requirements include membership or participation
in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as
amended.)*
A-1-15
<PAGE> 135
EXHIBIT A-2
FORM OF COMMON SECURITY
- - ---------------------
association or credit union meeting the requirements of the Registrar,
which requirements include membership or participation in the Securities
Transfer Agents Medallion Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
A-1-16
<PAGE> 136
EXHIBIT A-2
FORM OF COMMON SECURITY
[FACE OF SECURITY]
THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN EFFECTIVE REGISTRATION
STATEMENT. OTHER THAN AS PROVIDED IN THE TRUST AGREEMENT (AS DEFINED HEREIN),
THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
TO A RELATED PARTY (AS DEFINED IN THE TRUST AGREEMENT) OF CENTRAL PARKING
FINANCE TRUST.
Certificate Number Number of Common Securities
Common Securities
of
CENTRAL PARKING FINANCE TRUST
5 1/4% Convertible Common Securities
(liquidation amount $25 per Convertible Common Security)
Central Parking Finance Trust, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"), hereby certifies
that __________________________ (the "Holder") is the registered owner of common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust designated the "5 1/4% Convertible Common Securities
(liquidation amount $25 per Convertible Common Security)" (the "Common
Securities"). The Common Securities are transferable on the books and records of
the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust dated as of March 18, 1998, as the same may be amended from time to
time (the "Trust Agreement"), including the designation of the terms of the
Common Securities as set forth in Annex I to the Trust Agreement. Capitalized
terms used herein but not defined shall have the meaning given them in the Trust
Agreement. The Holder is entitled to the benefits of the Common Securities
Guarantee to the extent provided therein. The Company will provide a copy of the
Trust Agreement, the Common Securities Guarantee and the Indenture to a Holder
A-2-1
<PAGE> 137
without charge upon written request to the Depositor at its principal place of
business.
Reference is hereby made to select provisions of the Common
Securities set forth on the reverse hereof, which select provisions shall for
all purposes have the same effect as if set forth at this place.
Upon receipt of this certificate, the Company is bound by the
Trust Agreement and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat for United States
federal income tax purposes the Convertible Debentures as indebtedness and the
Common Securities as evidence of indirect beneficial ownership in the
Convertible Debentures.
IN WITNESS WHEREOF, the Trust has caused this instrument to be
duly executed.
Dated:
CENTRAL PARKING FINANCE TRUST
By:
-------------------------
Name:
Title:
[Seal]
Attest:
- - -----------------------
A-2-2
<PAGE> 138
[REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at
a rate per annum of 5 1/4% (the "Coupon Rate") of the stated liquidation amount
of $25 per Common Security, such rate being the rate of interest payable on the
Convertible Debentures to be held by the Property Trustee. Distributions in
arrears for more than one quarter will bear interest thereon compounded
quarterly at the Coupon Rate (to the extent permitted by applicable law). The
term "Distributions" as used herein includes any such interest including any
Additional Interest, Compounded Interest and Liquidated Damages, if any, payable
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Convertible Debentures held by the Property
Trustee and to the extent the Trust has funds available therefor. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period shorter than a full quarterly Distribution period for which
Distributions are computed, Distributions will be computed on the basis of the
actual number of days elapsed per 90-day quarter.
Except as otherwise described below, Distributions on the
Common Security Securities will be cumulative, will accrue from the date of
initial issuance and will be payable quarterly in arrears, on the following
dates, which dates correspond to the interest payment dates on the Convertible
Debentures: January 1, April 1, July 1 and October 1 of each year, commencing on
July 1, 1998, when, as and if available for payment by the Property Trustee. The
Company has the right at any time during the term of the Convertible Debentures
to defer interest payments from time to time by extending the interest payment
period for successive periods not exceeding 20 consecutive quarters (each an
"Extension Period") for each such period; provided, that no Extension Period may
extend beyond the maturity date of the Convertible Debentures. As a consequence
of such extension, quarterly Distributions on the Common Security Securities
would be deferred (though such Distributions would continue to accrue with
interest since interest would continue to accrue on the Convertible Debentures)
during any such extended interest payment period. In the event that the Company
exercises this right, then, during such period the Company has agreed, among
other things, (a) not to declare or pay dividends on, or make a distribution
with respect to, or redeem or purchase or acquire, or make a liquidation payment
with respect to, any of its capital stock (other than (i) purchases or
acquisitions of shares of Company Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit plans
or the satisfaction by the Company of its obligations pursuant to any contract
or security requiring the Company to purchase shares of Company Common Stock,
(ii) as a result of a reclassification of the Company's capital stock or the
A-2-3
<PAGE> 139
exchange or conversion of one class or series of the Company's capital stock for
another class or series of the Company's capital stock or (iii) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged) or make any guarantee payments with respect to the
foregoing, (b) not to make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities (including
guarantees) issued by the Company that rank pari passu with or junior to the
Convertible Debentures and (c) not to make any guarantee payments with respect
to the foregoing (other than pursuant to the Common Securities Guarantee). Prior
to the termination of any such Extension Period, the Company may further extend
the interest payment period; provided, that such Extension Period, together with
all such previous and further extensions thereof, may not exceed 20 consecutive
quarters or extend beyond the maturity date of the Convertible Debentures. Upon
the termination of any Extension Period and the payment of all amounts then due,
the Company may commence a new Extension Period, subject to the above
requirements.
The Common Securities shall be convertible into shares of
common stock of Central Parking Corporation ("Company Common Stock") through (i)
the exchange of Common Securities for a portion of the Convertible Debentures
and (ii) the immediate conversion of such Convertible Debentures into Company
Common Stock, in the manner and according to the terms set forth in Article
Thirteen of the Trust Agreement.
A-2-4
<PAGE> 140
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Common Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
-----------------------
- - ------------------------------------------
(Sign exactly as your name appears on the
other side of this Common Security
Certificate)
Signature Guarantee:*
-------------------------------
- - -------------------
* (Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.)
A-2-5
<PAGE> 141
[Include the following if the Common Security bears a Restricted
Securities Legend -
In connection with any transfer of any of the Common Securities evidenced by
this certificate, the undersigned confirms that such Common Securities are
being:
CHECK ONE BOX BELOW
(1) [_] exchanged for the undersigned's own account
without transfer; or
(2) [_] transferred pursuant to and in compliance with
Rule 144A under the Securities Act of 1933, as
amended (the "Securities Act"); or
(3) [_] transferred pursuant to and in compliance with
Regulation S under the Securities Act; or
(4) [_] transferred pursuant to another available
exemption from the registration requirements of
the Securities Act; or
(5) [_] transferred pursuant to an effective Registration
Statement under the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Common Securities evidenced by this certificate in the name of any person
other than the registered Holder thereof; provided, however, that if box (3)or
(4) is checked, the Trustee may require, prior to registering any such transfer
of the Common Securities, such legal opinions, certifications and other
information as the Company has reasonably requested in writing and directed the
Trustee to require confirmation that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act, such as the exemption provided by Rule 144
under such Act; provided, further,
A-2-6
<PAGE> 142
that after the date that a Shelf Registration Statement under the Securities Act
has been filed and so long as such Shelf Registration Statement continues to be
effective, the Trustee may only permit transfers for which box (5) has been
checked.
----------------------
Signature
Signature Guarantee:**
- - --------
** Signature must be guaranteed by an institution which is a member of one
of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee programs
acceptable to the Trustee.
A-2-7
<PAGE> 143
- - -----------------------------------------------------------------
[TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Common Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
---------------------------- --------------------
--------------
NOTICE: To be executed by an
executive officer]
A-2-8
<PAGE> 144
CONVERSION REQUEST
To: Chase Bank of Texas, National Association, as Property Trustee of
Central Parking Finance Trust
The undersigned owner of these Common Securities hereby
irrevocably exercises the option to convert these Common Securities, or the
portion below designated, into common stock of Central Parking Corporation (the
"Company Common Stock") in accordance with the terms of the Amended and Restated
Declaration of Trust (the "Trust Agreement"), dated as of March 18, 1998, by
Monroe J. Carell, Jr., James H. Bond and Andrew M. Paalborg, as Administrative
Trustees, Chase Manhattan Bank Delaware, as Delaware Trustee, Chase Bank of
Texas, National Association, as Property Trustee, Central Parking Corporation,
as Depositor, and by the Holders, from time to time, of individual beneficial
interests in the Trust to be issued pursuant to the Trust Agreement. Pursuant to
the aforementioned exercise of the option to convert these Common Securities,
the undersigned hereby directs the Conversion Agent (as that term is defined in
the Trust Agreement) to (i) exchange such Common Securities for a portion of the
Convertible Debentures (as that term is defined in the Trust Agreement) held by
the Trust (at the rate of exchange specified in the terms of the Trust
Agreement) and (ii) immediately convert such Convertible Debentures on behalf of
the undersigned into Company Common Stock (at the conversion rate specified in
the terms of the Trust Agreement).
The undersigned also hereby directs the Conversion Agent that
the shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
Any holder, upon the exercise of conversion rights in
accordance with the terms of the Trust Agreement and the Common Securities
agrees to be bound by the terms of the Registration Rights Agreement relating to
the common stock of Central Parking Corporation issuable upon conversion of the
Common Securities.
Date:
----------------
A-2-9
<PAGE> 145
Number of Common Securities to be converted: ___________________
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Company Common Stock are to be
issued, along with the address or addresses of such person or persons.
- - -----------------------------------------------------------------
- - -----------------------------------------------------------------
- - -----------------------------------------------------------------
- - ------------------------------------------
(Sign exactly as your name appears on the
other side of this Common Security
Certificate) (for conversion only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number.
- - -------------------------------------------
- - -------------------------------------------
- - -------------------------------------------
- - -------------------------------------------
Signature Guarantee:*
-------------------------------
- - --------
* (Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.)
A-2-10
<PAGE> 146
NOTICE OF CONVERSION
To: Chase Bank of Texas, National Association, as Property Trustee of
Central Parking Finance Trust
The undersigned owner of this Common Security hereby
irrevocably exercises the option to convert this Security, or the portion below
designated, into common stock of Central Parking Corporation (the "Company
Common Stock") in accordance with the terms of the Indenture, between the
Company and Chase Bank of Texas, National Association, as Indenture Trustee, and
directs that the shares issuable and deliverable upon conversion, together with
any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned, unless a different name has been indicated in the
assignment below. If shares are to be issued in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
Any Holder, upon the exercise of its conversion rights in
accordance with the terms of the Indenture and the Common Security, agrees to be
bound by the terms of the Registration Rights Agreement relating to the Company
Common Stock issuable upon conversion of the security.
Date:
----------------
Number of Common Securities to be converted ($25 or integral
multiples thereof): ___________________
If a name or names other than the undersigned, please indicate in the spaces
below the name or names in which the shares of Company Common Stock are to be
issued, along with the address or addresses of such person or persons.
- - -----------------------------------------------------------------
- - -------
- - -----------------------------------------------------------------
- - -------
- - -----------------------------------------------------------------
- - -------
- - ------------------------------------------
(Sign exactly as your name appears on the
the Security) (for conversion only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number.
- - -------------------------------------------
- - -------------------------------------------
- - -------------------------------------------
- - -------------------------------------------
Signature Guarantee:*
-----------------------
- - --------
* (Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.)
A-2-11
<PAGE> 147
EXHIBIT B - Form of
Regulation S Certificate
REGULATIONS S CERTIFICATE
(For transfers pursuant to Sections 8.2(a)(i),(iii) and (v)
of the Trust Agreement)
Chase Bank of Texas, National Association
Attention: Corporate Trust Department
Re: 5 1/4% Convertible Preferred
Securities of Central Parking Finance Trust (the
"Securities")
Reference is made to the Amended and Restated Trust Agreement,
dated as of March 18, 1998 (as amended from time to time, the "Trust
Agreement"), among Central Parking Corporation (the "Company"), Chase Bank of
Texas, National Association, Chase Manhattan Bank Delaware and Monroe J. Carell,
Jr., James H. Bond and Andrew M. Paalborg, the Administrative Trustees named
therein and the holders, from time to time, of undivided beneficial interests in
the assets of the Trust. Terms used herein and defined in the Trust Agreement or
in Regulation S or Rule 144 under the U.S. Securities Act of 1933, as amended
(the "Securities Act") are used herein as so defined.
This certificate relates to _____________ shares of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s).:
-------------------------------------------
CERTIFICATE No(s):
-------------------------------------------
The Person in whose name this certificate is executed below
(the "Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of the Specified Securities and is duly authorized by them to
do so. Such beneficial owner or owners are referred to herein collectively as
the "Owner". If the Specified Securities are represented by a Global
Certificate, they are held through the Clearing Agency or participant in the
name of the Undersigned, as or on behalf of the Owner. If the Specified
Securities are not represented by a Global Certificate, they are registered in
the name of the Undersigned, as or on behalf of the Owner.
- - -------------
* (Signature must be guaranteed by an "eligible guarantor
institution" that is a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the
Registrar, which requirements include membership or participation
in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by
the Registrar in addition to, or in substitution for, STAMP, all
in accordance with the Securities Exchange Act of 1934, as
amended.)*
<PAGE> 148
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Regulation S Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 904 or Rule 144 under the Securities Act and with all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being
effected in accordance with Rule 904:
(A) the Owner is not a distributor of the Securities,
an affiliate of the Company or any such distributor or a person
acting on behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made
to a person in the United States;
(C) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and any person
acting on its behalf reasonably believed that the Transferee was
outside the United States, or
(ii) the transaction is being executed in, on or
through the facilities of the Eurobond market, as regulated by the
Association of International Bond Dealers, or another designated
offshore securities market and neither the Owner nor the person acting
on its behalf knows that the transaction has been prearranged with a
buyer in the United States;
(D) no directed selling efforts have been made in the
United States by or on behalf of the Owner or any affiliate
thereof;
(E) if the Owner is a dealer in securities or has
received a selling concession, fee or other remuneration in respect of the
Specified Securities, and the transfer is to occur during the Restricted Period,
then the requirements of Rule 904(c)(1) have been satisfied; and
(F) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being
effected pursuant to Rule 144:
(A) the transfer is occurring after a holding period of
at least one year (computed in accordance with paragraph (d) of Rule 144) has
elapsed since the Specified Securities were last acquired from the Trust or from
an affiliate of the Trust, whichever is later, and is being effected in
accordance with the applicable amount, manner of sale and notice requirements of
Rule 144; or
B-2
<PAGE> 149
(B) the transfer is occurring after a holding period of at
least two years has elapsed since the Specified Securities were last acquired
from the Trust or from an affiliate of the Trust, whichever is later, and the
Owner is not, and during the preceding three months has not been, an affiliate
of the Trust.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Trust and the Purchasers.
Dated:
------------------------------
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the Undersigned
must be stated.)
B-3
<PAGE> 150
EXHIBIT C - Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to Sections 8.2(a)(ii), (iii), (iv)
and (v) of the Trust Agreement)
Chase Bank of Texas, National Association
2200 Ross Avenue
Suite 500
Dallas, Texas 75201
Attention: Corporate Trust Department
Re: 5 1/4% Convertible Preferred
Securities of Central Parking Finance Trust (the
"Securities")
Reference is made to the Amended and Restated Trust Agreement,
dated as of March 18, 1998 (as amended from time to time, the "Trust
Agreement"), among Central Parking Corporation (the "Company"), Chase Bank of
Texas, National Association, Chase Manhattan Bank Delaware and Monroe J. Carell,
Jr., James H. Bond and Andrew M. Paalborg, Administrative Trustees and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust. Terms used herein and defined in the Trust Agreement or in Regulation
S or Rule 144 under the U.S. Securities Act of 1933, as amended (the "Securities
Act"), are used herein as so defined.
The certificate relates to ____________ shares of Securities,
which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s).:
--------------------------------------------
CERTIFICATE No(s):
--------------------------------------------
The Person in whose name this certificate is executed below
(the "Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of the Specified Securities and is duly authorized by them to
do so. Such beneficial owner or owners are referred to herein collectively as
the "Owner". If the Specified Securities are represented by a Global
Certificate, they are held through the Clearing Agency or participant in the
name of the Undersigned, as or on behalf of the Owner. If the Specified
Securities are not represented by a Global Certificate, they are registered in
the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Regulation S Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 904 or Rule 144 under the Securities Act and
<PAGE> 151
with all applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
(1) Rule 144A Transfers. If the transfer is being effected
in accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person
that the Owner and any person acting on its behalf reasonable believe
is a "qualified institutional buyer" within the meaning of Rule 144A,
acquiring for its own account or for the account of a qualified
institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner
may be relying on Rule 144A in connection with the transfer; and
(2) Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after a holding period of at
least one year (computed in accordance with paragraph (d) of Rule 144)
has elapsed since the Specified Securities were last acquired from the
Trust or from an affiliate of the Trust, whichever is later, and is
being effected in accordance with the applicable amount, manner of sale
and notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period of at
least two years has elapsed since the Specified Securities were last
acquired from the Trust or from an affiliate of the Trust, whichever is
later, and the Owner is not, and during the preceding three months has
not been, an affiliate of the Trust.
(3) Regulation S Transfers. If the transfer is being
effected in accordance with Regulation S:
(A) the transfer is being made to a person who is not a U.S.
person; or
(B) the transferee is not acquiring such Specified Securities
for the account or benefit of any U.S. person.
C-2
<PAGE> 152
This certificate and the statements contained herein are made
for your benefit and the benefit of the Trust and the Purchasers.
Dated:
----------------
(Print the name of the
Undersigned, as such term is
defined in the second
paragraph of this certificate.)
By:
----------------------------
Name:
--------------------------
Title:
------------------------
(If the Undersigned is a
corporation, partnership
or fiduciary, the title
of the person signing on
behalf of the
Undersigned must be
stated.)
C-3
<PAGE> 153
EXHIBIT D - Form of Unrestricted
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to Section
8.2(b)(iv))
Chase Bank of Texas, National Association
2200 Ross Avenue
Suite 500
Dallas, Texas 75201
Attention: Corporate Trust Department
Re: 5 1/4% Convertible Preferred
Securities of Central Parking Finance Trust (the
"Securities")
Reference is made to the Amended and Restated Trust Agreement,
dated as of March 18, 1998 (as amended from time to time, the "Trust
Agreement"), among Central Parking Corporation (the "Company"), Chase Bank of
Texas, National Association, Chase Manhattan Bank Delaware and Monroe J. Carell,
Jr., James H. Bond and Andrew M. Paalborg, the Administrative Trustees named
therein and the holders, from time to time, of undivided beneficial interests in
the assets of the Trust. Terms used herein and defined in the Trust Agreement or
Regulation S or Rule 144 under the U.S. Securities Act of 1933, as amended (the
"Securities Act"), are used herein as so defined.
The certificate relates to ____________ shares of Securities,
which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s).:
-------------------------------------------
CERTIFICATE No(s):
-------------------------------------------
The Person in whose name this certificate is executed below
(the "Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of the Specified Securities and is duly authorized by them to
do so. Such beneficial owner or owners are referred to herein collectively as
the "Owner". If the Specified Securities are represented by a Global
Certificate, they are held through the Clearing Agency or participant in the
name of the Undersigned, as or on behalf of the Owner. If the Specified
Securities are not represented by a Global Certificate, they are registered in
the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
exchanged for Securities bearing no Securities Act Legend pursuant to Section
8.2(b)(iv) of the Trust Agreement. In connection with such exchange, the Owner
hereby certifies that the exchange is occurring after a holding period of at
least two years (computed in accordance
D-1
<PAGE> 154
with paragraph (d) of Rule 144) has elapsed since the Specified Securities were
last acquired from the Trust or from an affiliate of the Trust, whichever is
later, and the Owner is not, and during the preceding three months has not been,
an affiliate of the Trust. The Owner also acknowledges that any future transfers
of the Specified Securities must comply with all applicable securities laws of
the states of the United States and other jurisdictions.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Trust and the Purchasers.
Dated:
------------------------------
(Print the name of the
Undersigned, as such term is
defined in the second paragraph
of this certificate.)
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
(If the Undersigned is a
corporation, partnership or
fiduciary, the title of the
person signing on behalf of
the Undersigned must be
stated.)
D-2
<PAGE> 1
====================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
CENTRAL PARKING CORPORATION
Dated as of March 18, 1998
====================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
DEFINITIONS AND INTERPRETATION
<S> <C> <C>
SECTION 1.1. Definitions and Interpretation.......................... 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application........................ 6
SECTION 2.2. Lists of Holders of Securities.......................... 7
SECTION 2.3. Reports by the Preferred Guarantee Trustee.............. 7
SECTION 2.4. Periodic Reports to the Preferred Guarantee Trustee..... 8
SECTION 2.5. Evidence of Compliance with Conditions Precedent........ 8
SECTION 2.6. Event of Default; Waiver................................ 8
SECTION 2.7. Event of Default; Notice................................ 8
SECTION 2.8. Conflicting Interests................................... 9
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
THE PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Preferred Guarantee Trustee.... 9
SECTION 3.2. Certain Rights of the Preferred Guarantee Trustee....... 11
SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee... 14
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. Preferred Guarantee Trustee; Eligibility................ 15
SECTION 4.2. Appointment, Removal and Resignation of Preferred
Guarantee Trustees.................................... 15
</TABLE>
i
<PAGE> 3
ARTICLE V
GUARANTEE
<TABLE>
<S> <C> <C>
SECTION 5.1. Guarantee............................................... 17
SECTION 5.2. Subordination........................................... 17
SECTION 5.3. Waiver of Notice and Demand............................. 17
SECTION 5.4. Obligations Not Affected................................ 17
SECTION 5.5. Rights of Holders....................................... 19
SECTION 5.6. Guarantee of Payment.................................... 19
SECTION 5.7. Subrogation............................................. 19
SECTION 5.8. Independent Obligations................................. 20
SECTION 5.9. Conversion.............................................. 20
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1. Limitation of Transactions.............................. 20
SECTION 6.2. Ranking................................................. 21
ARTICLE VII
TERMINATION
SECTION 7.1. Termination............................................. 21
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. Exculpation............................................. 22
SECTION 8.2. Indemnification......................................... 22
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Successors and Assigns.................................. 23
SECTION 9.2. Amendments.............................................. 23
SECTION 9.3. Notices................................................. 23
SECTION 9.4. Benefit................................................. 24
SECTION 9.5. Governing Law........................................... 24
</TABLE>
ii
<PAGE> 4
PREFERRED SECURITIES GUARANTEE AGREEMENT
This PREFERRED SECURITIES GUARANTEE AGREEMENT (the "Preferred
Securities Guarantee"), dated as of March 18, 1998, is executed and delivered by
Central Parking Corporation, a Tennessee corporation (the "Guarantor"), and
Chase Bank of Texas, National Association, a Texas banking corporation as
trustee (the "Preferred Guarantee Trustee"), for the benefit of the Holders (as
defined herein) from time to time of the Preferred Securities (as defined
herein) of Central Parking Finance Trust, a Delaware statutory business trust
(the "Trust");
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Trust Agreement"), dated as of March 18, 1998, among the trustees of
the Trust named therein, the Guarantor, as sponsor, and the holders from time to
time of undivided beneficial interests in the assets of the Trust, the Trust is
issuing on the date hereof 4,000,000 preferred securities, having an aggregate
liquidation amount of $25 per Preferred Security (plus up to an additional
400,000 preferred securities, having a liquidation amount of $25 per Preferred
Security to cover over-allotments), designated the 5 1/4% Convertible Trust
Issued Preferred Securities (the "Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Preferred Securities Guarantee, to
guarantee the obligations of the Trust to the Holders of the Preferred
Securities on the terms and conditions set forth herein;
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Common Securities Guarantee") in substantially
identical terms to this Preferred Securities Guarantee for the benefit of the
holders of the Common Securities (as defined herein), except that if an event of
default (as defined in the Indenture (as defined herein)) (an "Indenture Event
of Default"), has occurred and is continuing, the rights of holders of the
Common Securities to receive Guarantee Payments (as defined in the Common
Securities Guarantee) under the Common Securities Guarantee shall be
subordinated to the rights of Holders of Preferred Securities to receive
Guarantee Payments (as defined herein) under this Preferred Securities
Guarantee; and
<PAGE> 5
NOW, THEREFORE, in consideration of the purchase by each
Holder of Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Preferred
Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation.
In this Preferred Securities Guarantee, unless the context
otherwise requires:
(a) Capitalized terms used in this Preferred Securities
Guarantee but not defined in the preamble above have
the respective meanings assigned to them in this
Section 1.1;
(b) terms defined in the Trust Agreement as at the date
hereof have the same meaning when used in this
Preferred Securities Guarantee unless otherwise
defined in this Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities
Guarantee has the same meaning throughout;
(d) all references to "the Preferred Securities
Guarantee" or "this Preferred Securities Guarantee"
are to this Preferred Securities Guarantee as
modified, supplemented or amended from time to time;
(e) all references in this Preferred Securities Guarantee
to Articles and Sections are to Articles and Sections
of this Preferred Securities Guarantee, unless
otherwise specified;
2
<PAGE> 6
(f) a term defined in the Trust Indenture Act has the
same meaning when used in this Preferred Securities
Guarantee, unless otherwise defined in this Preferred
Securities Guarantee or unless the context otherwise
requires;
(g) a reference to the singular includes the plural and
vice versa;
(h) a reference to any Person shall include its
successors and assigns;
(i) a reference to any agreement or instrument shall mean
such agreement or instrument, as supplemented,
modified, amended, or amended and restated, and in
effect from time to time; and
(j) a reference to any statute, law, rule or regulation,
shall include any amendments thereto applicable to
the relevant Person, and any successor statute, law,
rule or regulation.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized to bind
such Person.
"Business Day" means any day other than a day on which banking institutions
in New York, New York, in Wilmington, Delaware or in Dallas, Texas are
authorized or required by any applicable law or executive order to close.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Trust.
"Convertible Debentures" means the 5 1/4% Convertible Debentures due April
1, 2028 of the Guarantor held by the Property Trustee (as defined in the Trust
Agreement).
"Corporate Trust Office" means the office of the
3
<PAGE> 7
Preferred Guarantee Trustee at which the corporate trust business of the
Preferred Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Agreement is located
at Chase Bank of Texas, National Association, Suite 500, 2200 Ross Avenue,
Dallas, Texas 75201, Attention: Corporate Trust Department.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Event of Default" means a default by the Guarantor on any of its payment or
other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by the Trust: (i) any accrued and unpaid Distributions (as defined in the
Trust Agreement) that are required to be paid on the Preferred Securities to the
extent the Trust has funds available therefor, (ii) the redemption price, with
respect to any Preferred Securities called for redemption by the Trust (the
"Redemption Price"), to the extent the Trust has funds available therefor, and
(iii) upon a voluntary or involuntary dissolution, winding-up or termination of
the Trust (other than in connection with the distribution of Convertible
Debentures to the Holders of Preferred Securities or the redemption of all the
Preferred Securities (as provided in the Declaration)), the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid Distributions
the Preferred Securities to the date of payment to the extent the Trust has
funds available therefor and (b) the amount of assets of the Trust remaining
available for distribution to Holders of Preferred Securities upon the
liquidation of the Trust (in either case, the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and records of
the Trust of any Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor.
4
<PAGE> 8
"Indemnified Person" means the Preferred Guarantee Trustee, any Affiliate of
the Preferred Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or agents of
the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of March 18, 1998, among the
Guarantor and Chase Bank of Texas, National Association, a Texas banking
corporation, as trustee, pursuant to which the Convertible Debentures are to be
issued to the Property Trustee of the Trust.
"Indenture Trustee" means the Person acting as trustee under the Indenture,
initially Chase Bank of Texas, National Association.
"Majority in liquidation amount of the Preferred Securities" means, except
as provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of more than 50% of the liquidation
amount of all Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
5
<PAGE> 9
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Guarantee Trustee" means Chase Bank of Texas, National
Association, until a Successor Preferred Guarantee Trustee has been appointed
and has accepted such appointment pursuant to the terms of this Preferred
Securities Guarantee and thereafter means each such Successor Preferred
Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Preferred
Guarantee Trustee, including any vice president, any assistant vice president,
any secretary, any assistant secretary, the treasurer, any assistant treasurer
or other officer of the Corporate Trust Office of the Preferred Guarantee
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Preferred Securities Guarantee and shall,
6
<PAGE> 10
to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2. List of Holders of Securities.
(a) The Guarantor shall provide the Preferred Guarantee Trustee
with a list, in such form as the Preferred Guarantee Trustee may reasonably
require, of the names and addresses of the Holders of the Preferred Securities
("List of Holders") as of such date, (i) within 14 Business Day after January 1,
April 1, July 1 and October 1 of each year, and (ii) at any other time within 30
days of receipt by the Guarantor of a written request for a List of Holders as
of a date no more than 14 days before such List of Holders is given to the
Preferred Guarantee Trustee, provided that the Guarantor shall not be obligated
to provide such List of Holders at any time (x) the List of Holders does not
differ from the most recent List of Holders given to the Preferred Guarantee
Trustee by the Guarantor or (y) the Preferred Securities are represented by one
or more Global Securities (as defined in the Indenture). The Preferred Guarantee
Trustee may destroy any List of Holders previously given to it on receipt of a
new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Section 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3. Reports by the Preferred Guarantee Trustee.
Within 60 days after May 15 of each year, the Preferred Guarantee
Trustee shall provide to the Holders of the Preferred Securities such reports as
are required by Section 313 of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act. The Preferred
Guarantee Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
7
<PAGE> 11
SECTION 2.4. Periodic Reports to the Preferred Guarantee Trustee.
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information as required by Section 314, if any, and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Preferred Securities Guarantee that relate to any of the matters set forth
in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may be given in
the form of an Officers' Certificate.
SECTION 2.6. Event of Default; Waiver.
The Holders of a Majority in liquidation amount of Preferred Securities
may, by vote, on behalf of the Holders of all of the Preferred Securities, waive
any past Event of Default and its consequences. Upon such waiver, any such Event
of Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Preferred
Securities Guarantee, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 2.7. Event of Default; Notice.
(a) The Preferred Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Preferred Securities, notices of all Events of
Default actually known to a Responsible Officer of the Preferred Guarantee
Trustee, unless such defaults have been cured before the giving of such notice;
provided that the Preferred Guarantee Trustee shall be protected in withholding
such notice if and so long as a Responsible Officer of the Preferred Guarantee
Trustee in good faith
8
<PAGE> 12
determines that the withholding of such notice is in the interests of the
Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee shall
have received written notice, or of which a Responsible Officer of the Preferred
Guarantee Trustee charged with the administration of the Declaration shall have
obtained actual knowledge.
SECTION 2.8. Conflicting Interests.
The Trust Agreement shall be deemed to be specifically described in
this Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE PREFERRED GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Preferred Guarantee Trustee.
(a) This Preferred Securities Guarantee shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders of the Preferred
Securities, and the Preferred Guarantee Trustee shall not transfer this
Preferred Securities Guarantee to any Person except a Holder exercising his or
her rights pursuant to Section 5.5(b) or to a Successor Preferred Guarantee
Trustee on acceptance by such Successor Preferred Guarantee Trustee of its
appointment to act as Successor Preferred Guarantee Trustee. The right, title
and interest of the Preferred Guarantee Trustee shall automatically vest in any
Successor Preferred Guarantee Trustee, and such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Preferred Guarantee
Trustee.
(b) If an Event of Default actually known to a Responsible Officer
of the Preferred Guarantee Trustee has occurred and is continuing, the Preferred
Guarantee Trustee shall, to the extent required pursuant to the terms hereof,
take any action requested by the holders of a majority in Liquidation Amount of
the Preferred Securities, enforce this
9
<PAGE> 13
Preferred Securities Guarantee for the benefit of the Holders of the Preferred
Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Preferred Securities Guarantee, and no implied covenants shall be
read into this Preferred Securities Guarantee against the Preferred Guarantee
Trustee. In case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6) and is actually known to a Responsible Officer
of the Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Preferred Securities
Guarantee, and use the same degree of care and skill in its exercise thereof, as
a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its own
grossly negligent action, its own grossly negligent failure to act, or its own
willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Preferred Guarantee
Trustee shall be determined solely by the express provisions of this
Preferred Securities Guarantee, and the Preferred Guarantee Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Preferred
Securities Guarantee, and no implied covenants or obligations shall
be read into this Preferred Securities Guarantee against the
Preferred Guarantee Trustee; and
10
<PAGE> 14
(B) in the absence of bad faith on the part of the Preferred
Guarantee Trustee, the Preferred Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Preferred Guarantee Trustee and conforming to the
requirements of this Preferred Securities Guarantee; but in the case
of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Preferred Guarantee
Trustee, the Preferred Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform on their
face to the requirements of this Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Preferred
Guarantee Trustee, unless it shall be proved that the Preferred Guarantee
Trustee was grossly negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in
liquidation amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to
the Preferred Guarantee Trustee, or exercising any trust or power
conferred upon the Preferred Guarantee Trustee under this Preferred
Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall require
the Preferred Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if the
Preferred Guarantee Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured to
it under the terms of this Preferred
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Securities Guarantee or indemnity, reasonably satisfactory to
the Preferred Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
SECTION 3.2. Certain Rights of the Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may conclusively rely, and shall be
fully protected in acting or refraining from acting upon, any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this Preferred
Securities Guarantee shall be sufficiently evidenced by an Officers'
Certificate.
(iii) Whenever, in the administration of this Preferred Securities
Guarantee, the Preferred Guarantee Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or omitting any action
hereunder, the Preferred Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part, request
and conclusively rely upon an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Guarantor.
(iv) The Preferred Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any rerecording,
refiling or registration thereof).
(v) The Preferred Guarantee Trustee may consult with counsel of its
selection, and the written advice or opinion of such counsel with respect to
legal matters shall be full
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and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with such
advice or opinion. Such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The Preferred Guarantee Trustee
shall have the right at any time to seek instructions concerning the
administration of this Preferred Securities Guarantee from any court of
competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Preferred Securities
Guarantee at the request or direction of any Holder, unless such Holder shall
have provided to the Preferred Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Preferred Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Preferred Guarantee Trustee;
provided that nothing contained in this Section 3.2(a)(vi) shall be taken to
relieve the Preferred Guarantee Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested in it by
this Preferred Securities Guarantee.
(vii) The Preferred Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Preferred Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit.
(viii) The Preferred Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, nominees, custodians or attorneys, and the Preferred Guarantee
Trustee shall not be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder.
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(ix) Any action taken by the Preferred Guarantee Trustee or its agents
hereunder shall bind the Holders of the Preferred Securities, and the signature
of the Preferred Guarantee Trustee or its agents alone shall be sufficient and
effective to perform any such action. No third party shall be required to
inquire as to the authority of the Preferred Guarantee Trustee to so act or as
to its compliance with any of the terms and provisions of this Preferred
Securities Guarantee, both of which shall be conclusively evidenced by the
Preferred Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Preferred Securities
Guarantee the Preferred Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any other
action hereunder, the Preferred Guarantee Trustee (i) may request instructions
from the Holders of a Majority in liquidation amount of the Preferred
Securities, (ii) may refrain from enforcing such remedy or right or taking such
other action until such instructions are received and (iii) shall be protected
in conclusively relying on or acting in accordance with such instructions.
(xi) The Preferred Guarantee Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Preferred Securities Guarantee.
(b) No provision of this Preferred Securities Guarantee shall be deemed
to impose any duty or obligation on the Preferred Guarantee Trustee to perform
any act or acts or exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal, or in which the
Preferred Guarantee Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or authority available to
the Preferred Guarantee Trustee shall be construed to be a duty.
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SECTION 3.3. Not Responsible for Recitals or Issuance of
Guarantee.
The recitals contained in this Preferred Securities Guarantee shall be
taken as the statements of the Guarantor, and the Preferred Guarantee Trustee
does not assume any responsibility for their correctness. The Preferred
Guarantee Trustee makes no representation as to the validity or sufficiency of
this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1. Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Preferred Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of the
United States of America or any State or Territory thereof or of the District of
Columbia, or a corporation or Person permitted by the Securities and Exchange
Commission to act as an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars ($50,000,000), and
subject to supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the purposes of this Section
4.1(a)(ii), the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
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(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2. Appointment, Removal and Resignation of Preferred
Guarantee Trustees.
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in accordance
with Section 4.2(a) until a Successor Preferred Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed by
such Successor Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been appointed
or until its removal or resignation. The Preferred Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by an instrument
in writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery to the Guarantor of an instrument of removal or resignation,
the resigning or removed Preferred Guarantee Trustee may petition any court of
competent jurisdiction for appointment of a Successor Preferred Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
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(f) Upon termination of this Preferred Securities Guarantee or removal
or resignation of the Preferred Guarantee Trustee pursuant to this Section 4.2,
the Guarantor shall pay to the Preferred Guarantee Trustee all amounts accrued
to the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders (except to the extent paid by the Trust), as and when due,
regardless of any defense, right of set-off or counterclaim that the Trust may
have or assert, the Guarantee Payments, without duplication. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Trust to pay
such amounts to the Holders.
SECTION 5.2. Subordination.
If an Indenture Event of Default has occurred and is continuing, the
rights of Holders of Common Securities to receive Guarantee Payments under the
Common Securities Guarantee are subordinate to the rights of Preferred
Securities to receive Guarantee Payments under this
Preferred Securities Guarantee.
SECTION 5.3. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Trust or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
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SECTION 5.4. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or
any portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, the Preferred Securities (other than an extension of
time for payment of Distributions, Redemption Price, Liquidation Distribution or
other sum payable that results from the extension of any interest payment period
on the Convertible Debentures or any extension of the maturity date of the
Convertible Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Trust granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Trust or any of the assets of
the Trust;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
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<PAGE> 22
otherwise constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 5.4 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders or any other Persons to
give notice to, or obtain consent of, the Guarantor with respect to the
happening of any of the foregoing.
SECTION 5.5. Rights of Holders.
(a) The Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Preferred Guarantee
Trustee in respect of this Preferred Securities Guarantee or to direct the
exercise of any trust or power conferred upon the Preferred Guarantee Trustee
under this Preferred Securities Guarantee.
(b) Any Holder may directly institute a legal proceeding against
the Guarantor to enforce the obligations of the Guarantor under this Preferred
Securities Guarantee without first instituting a legal proceeding against the
Trust, the Preferred Guarantee Trustee or any other Person.
(c) If an event of default with respect to the Convertible
Debentures constituting the failure to pay interest or principal on the
Convertible Debentures on the date such interest or principal is otherwise
payable has occurred and is continuing, then a Holder of Preferred Securities
may directly, at any time, institute a proceeding for enforcement of payment to
such Holder of the principal of or interest on the Convertible Debentures having
a principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such Holder on or after the respective due date specified in the
Convertible Debentures. The Holders of Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the Convertible
Debentures unless the Property Trustee (as defined in the Indenture) fails to do
so.
SECTION 5.6. Guarantee of Payment.
This Preferred Securities Guarantee creates a guarantee of payment and
not of collection.
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SECTION 5.7. Subrogation.
The Guarantor shall be subrogated to all, if any, rights of the Holders
against the Trust in respect of any amounts paid to such Holders by the
Guarantor under this Preferred Securities Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Preferred Securities Guarantee, if, at the time
of any such payment, any amounts are due and unpaid under this Preferred
Securities Guarantee. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 5.8. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g) inclusive, of Section 5.4 hereof.
SECTION 5.9. Conversion.
The Guarantor acknowledges its obligation to issue and deliver common
stock of the Guarantor upon the conversion of the Preferred Securities.
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1. Limitation of Transactions.
So long as any Preferred Securities remain outstanding, if (i) the
Company has exercised its option to defer interest payments on the Convertible
Debentures by extending the interest payment period and such extension shall be
continuing, (ii) if there shall have occurred any Event of Default under this
Preferred Securities Guarantee, or (iii)
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there shall have occurred and be continuing any event that, with the giving of
notice or the lapse of time or both, would constitute an Indenture Event of
Default, then the Guarantor has agreed (a) not to declare or pay dividends on,
or make a distribution with respect to, or redeem, purchase acquire or make a
liquidation payment with respect to, any of its capital stock (other than (i)
purchases or acquisitions of shares of common stock in connection with the
satisfaction by the Guarantor of its obligations under any employee benefit
plans or the satisfaction by the Guarantor of its obligations pursuant to any
contract or security requiring the Guarantor to purchase shares of common stock,
(ii) as a result of a reclassification of the Guarantor's capital stock or the
exchange or conversion of one class or series of the Guarantor's capital stock
for another class or series of the Guarantor's capital stock or (iii) the
purchase of fractional interests in shares of the Guarantor's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged (or make any guarantee payments with
respect to the foregoing)), and (b) not to make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank pari passu with or junior to the Convertible
Debentures (except by conversion into or exchange for shares of its capital
stock, and (c) not to make any guarantee payments with respect to the foregoing
(other than pursuant to this Preferred Securities Guarantee).
SECTION 6.2. Ranking.
(a) This Preferred Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
to all other liabilities of the Guarantor except any liabilities that may be
pari passu expressly by their terms, (ii) pari passu with the most senior
preferred stock issued from time to time by the Guarantor and with any guarantee
now or hereafter entered into by the Guarantor in respect of any preferred or
preference stock or preferred securities of any Affiliate of the Guarantor, and
(iii) senior to the Guarantor's common stock.
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(b) The holders of any obligations of the Guarantor that are
senior in priority to the obligations under this Preferred Securities Guarantee
will be entitled to all of the rights inuring to the holders of "Senior
Indebtedness" under Article 12 of the Indenture, and the Holders of the
Preferred Securities will be subject to all of the terms and conditions of such
Article 12 with respect to any claims or rights hereunder with the same effect
as though fully set forth herein.
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.
This Preferred Securities Guarantee will terminate as to each Holder upon
(i) full payment of the Redemption Price of all Preferred Securities; (ii)
distribution of the Convertible Debentures held by the Trust to the Holders;
(iii) liquidation of the Trust, or (iv) upon the distribution of Guarantor's
common stock to such Holder in respect of conversion of such Holder's Preferred
Securities into common stock of the Guarantor. The Guarantee also will terminate
completely upon full payment of the amounts payable in accordance with the
Declaration of the Trust. This Preferred Securities Guarantee will continue to
be effective or will be reinstated, as the case may be, if at any time any
Holder must restore payment of any sums paid under such Preferred Securities or
under this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith in accordance with this
Preferred Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Preferred Securities Guarantee or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified
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Person's gross negligence or willful misconduct with respect to such acts or
omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Preferred Securities
might properly be paid.
SECTION 8.2. Indemnification.
The Guarantor agrees to indemnify each Indemnified Person for, and to hold
each Indemnified Person harmless against, any loss, liability or expense
incurred without gross negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 8.2 shall
survive the termination of this Preferred Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Successors and Assigns.
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding. Except in connection with any
permitted merger or consolidation of the Guarantor with or into another entity
or any permitted sale, transfer or lease of the Guarantor's assets to another
entity as described in the Indenture, the Guarantor may not assign its rights or
delegate its obligations under this Preferred Securities
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Guarantee without the prior approval of the Holders of at least a Majority of
the aggregate stated liquidation amount of the Preferred Securities then
outstanding.
SECTION 9.2. Amendments.
Except with respect to any changes that do not materially adversely affect
the rights of Holders (in which case no vote will be required), this Preferred
Securities Guarantee may be amended only with the prior approval of the Holders
of at least a Majority in liquidation amount of all the outstanding Preferred
Securities. The provisions of Section 11.2 of the Trust Agreement with respect
to meetings of Holders of the Preferred Securities apply to the giving of such
approval.
SECTION 9.3. Notices.
All notices provided for in this Preferred Securities Guarantee shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
sent by facsimile or mailed by registered or certified mail, as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders of the
Preferred Securities):
Chase Bank of Texas, National Association
Suite 500
2200 Ross Avenue
Dallas, Texas 75201
Attention: Corporate Trust Department
(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Preferred Securities):
Central Parking Corporation
Suite 200
2410 21st Avenue South
Nashville, Tennessee 37212
Attention: Andrew M. Paalborg
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(c) If given to any Holder at the address set forth on the books
and records of the Trust.
All such notices shall be deemed to have been given when received in person,
telecopied with receipt confirmed, or mailed by first class mail, postage
prepaid except that if a notice or other document is refused delivery or cannot
be delivered because of a changed address of which no notice was given, such
notice or other document shall be deemed to have been delivered on the date of
such refusal or inability to deliver.
SECTION 9.4. Benefit.
This Preferred Securities Guarantee is solely for the benefit of the Holders
of the Preferred Securities and, subject to Section 3.1(a), is not separately
transferable from the Preferred Securities.
SECTION 9.5. Governing Law.
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND ALL
RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICTS OF LAWS.
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THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and year first
above written.
Central Parking Corporation, as Guarantor
By:
--------------------------------------------
Name: Monroe J. Carell, Jr.
Title: Chief Executive Officer and
Chairman of the Board
Chase Bank of Texas, National Association
as Preferred Guarantee Trustee
By:
--------------------------------------------
Name:
Title:
26
<PAGE> 1
CENTRAL PARKING FINANCE TRUST
5 1/4% CONVERTIBLE TRUST ISSUED PREFERRED SECURITIES
(liquidation amount $25 per preferred security)
March 18, 1998
REGISTRATION RIGHTS AGREEMENT
Bear, Stearns & Co. Inc.
J.C. Bradford & Co.
William Blair & Company, L.L.C.
NationsBanc Montgomery Securities LLC
SunTrust Equitable Securities
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
Central Parking Finance Trust, a statutory business trust
formed 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 to issue and sell to the Initial Purchasers
(as defined herein), upon the terms set forth in the Purchase Agreement (as
defined herein) an aggregate of 4,000,000 and, at the election of the Initial
Purchasers, up to an additional 400,000 of 5 1/4% Convertible Trust Issued
Preferred Securities (liquidation amount $25 per preferred security) (the
"Preferred Securities") of the Trust. The Preferred Securities are 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, and may be converted or exchanged under
certain circumstances into the 5 1/4% Convertible Subordinated Debentures due
April 1, 2028 of the Company (the "Convertible Debentures") held by the Trust
and then into common stock, $0.01 par value per share ("Company Common Stock"),
of the Company. The Preferred Securities, the Convertible Debentures, the
Guarantee and the Company Common Stock issuable upon conversion of the Preferred
Securities and the Convertible Debentures are referred to collectively as the
"Securities." As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Initial Purchasers thereunder, the Trust and the Company each agree with the
Initial Purchasers for the benefit of the Holders (as defined herein) from time
to time of the Registrable Securities (as defined herein) as follows:
1. Definitions. (a) Capitalized terms used herein without
definition shall have the meanings ascribed thereto in the Purchase Agreement.
As used in this Registration Rights Agreement, the following defined terms shall
have the following meanings:
<PAGE> 2
"Act" or "Securities Act" means the Securities Act of 1933, or
any successor thereto, as the same may be amended from time to time.
" Affiliate" has the same meaning as given to the term in Rule
405 of the Securities Act or any successor rule thereunder.
"Commission" means the Securities and Exchange Commission.
"DTC" means the Depository Trust Company.
"Effectiveness Period" has the meaning assigned thereto in
Section 2(b)(i) hereof.
"Effective Time" means the date on which the Commission
declares the Shelf Registration Statement effective or on which the Shelf
Registration Statement otherwise becomes effective.
"Electing Holder" has the meaning assigned thereto in Section
3(a)(3) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations promulgated thereunder,
or any successor legislation.
"Holder" means, when used with respect to any Security, the
holder of such Security. For all purposes of this Agreement, the Company shall
be entitled to treat the record owner of a Security as the beneficial owner of
such Security unless the Company has been given written notice of the existence
and identity of a different beneficial owner.
"Indenture" means the Indenture, dated as of March 18, 1998,
between the Company and Chase Bank of Texas, National Association, as indenture
trustee, as it may be amended from time to time.
"Initial Purchasers" means the Initial Purchasers named in
Schedule I to the Purchase Agreement.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering, if any, conducted pursuant to Section 6 hereof.
"NASD Rules" means the Rules of the National Association of
Securities Dealers, Inc., as amended.
"Notice and Questionnaire" means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
"Person" means a corporation, association, partnership,
organization, business, individual, trust, unincorporated organization, or a
government or agency or political subdivision thereof.
"Prospectus" means the prospectus (including, without
limitation, any preliminary prospectus, any final prospectus and any prospectus
that discloses information previously omitted from a prospectus filed as part of
an effective registration statement in reliance upon Rule 430A under the Act)
included in the Shelf Registration Statement, as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by the Shelf
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Registration Statement and by all other amendments and supplements to such
prospectus, including all material incorporated by reference in such prospectus
and all documents filed after the date of such prospectus by the Company under
the Exchange Act and incorporated by reference therein.
"Purchase Agreement" means the purchase agreement dated March
13, 1998 among the Initial Purchasers, the Trust and the Company.
"Registrable Securities" means all or any portion of the
Securities issued from time to time; provided, however, that a security ceases
to be a Registrable Security when it is no longer a Restricted Security.
"Restricted Security" means any Security that has not been
registered under the Securities Act and that may not be offered, sold, pledged
or otherwise transferred except (i) to a person who the transferor and any
person acting on behalf of such transferor reasonably believe is a qualified
institutional buyer acquiring for its own account or the account of a qualified
institutional buyer in a transaction complying with Rule 144A under the
Securities Act, (ii) in an offshore transaction complying with Rule 903 or Rule
904 of Regulation S under the Securities Act, (iii) pursuant to an exemption
from registration under the Securities Act provided by Rule 144 thereunder (if
available), (iv) pursuant to an exemption from registration under the Securities
Act and sold in a manner contemplated by the Shelf Registration Statement, or
(v) if the Security has otherwise been transferred and a new Security not
subject to transfer restrictions under the Securities Act has been delivered by
or on behalf of the Company in accordance with the terms of the Trust Agreement
or the Indenture, as the case may be.
"Rules and Regulations" means the published rules and
regulations of the Commission promulgated under the Securities Act or the
Exchange Act, as in effect at any relevant time.
"Securities" means the Preferred Securities, the Convertible
Debentures, the Guarantee and the Company Common Stock issuable upon conversion
or exchange of the Preferred Securities and the Convertible Debentures
"Shelf Registration" means a registration effected pursuant to
Section 2 hereof.
"Shelf Registration Statement" means a "shelf" registration
statement filed under the Securities Act providing for the registration of, and
the sale on a continuous or delayed basis by the Holders of, all of the
Registrable Securities pursuant to Rule 415 under the Securities Act and/or any
similar rule that may be adopted by the Commission, filed by the Company and the
Trust pursuant to the provisions of Section 2 hereof, including the Prospectus
contained therein, any amendments and supplements to such registration
statement, including post-effective amendments, and all exhibits and all
material incorporated by reference in such registration statement.
"Trust Agreement" means the Amended and Restated Trust
Agreement, dated as of March 18, 1998, among the Company, as Depositor, Chase
Bank of Texas, National Association, as Property Trustee, Chase Manhattan Bank
Delaware, as Delaware Trustee, and the Administrative Trustees named therein,
relating, among other things, to the Preferred Securities, as amended and
supplemented from time to time in accordance with its terms.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
or any successor thereto and the rules, regulations and forms promulgated
thereunder, as the same shall be amended.
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<PAGE> 4
"Underwriter" means any underwriter of Registrable Securities
in connection with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a
percentage of the "principal amount" of Registrable Securities or to a
percentage of Registrable Securities, the Preferred Securities and the
Convertible Debentures issuable upon exchange of the Preferred Securities will
be treated as the same class of Securities and Company Common Stock shall be
treated as representing the liquidation amount of Preferred Securities or the
principal amount of Convertible Debentures which was surrendered for conversion
in order to receive such number of shares of Company Common Stock.
2. Shelf Registration. (a) The Company and the Trust shall,
within 60 calendar days following the First Closing Date (as defined in the
Purchase Agreement), file with the Commission a Shelf Registration Statement
relating to the offer and sale of the Registrable Securities and, thereafter,
shall use their best efforts to cause such Shelf Registration Statement to be
declared effective under the Act as promptly as practicable and in no event
later than 150 calendar days after the First Closing Date; provided however,
that no Holder shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement or to use the Prospectus forming a part thereof for
resales of Registrable Securities unless such Holder is an Electing Holder.
(b) The Company and the Trust shall each use its best efforts:
(i) To keep the Shelf Registration Statement continuously
effective (subject to any Suspension Period (as defined below)) in
order to permit the Prospectus forming a part thereof to be usable by
Electing Holders for resales of Registrable Securities for a period of
two years after the latest date of original issuance of Preferred
Securities, or such shorter period that will terminate upon the
earliest of the following: (A) when all the Preferred Securities
covered by the Shelf Registration Statement have been sold pursuant to
the Shelf Registration Statement; (B) when all Convertible Debentures
issued to Holders, in respect of Preferred Securities that had not been
sold pursuant to the Shelf Registration Statement, have been sold
pursuant to the Shelf Registration Statement; (C) when all shares of
Company Common Stock issued upon conversion of any such Preferred
Securities or any such Convertible Debentures that have not been sold
pursuant to the Shelf Registration Statement have been sold pursuant to
the Shelf Registration Statement; and (D) when, in the written opinion
of counsel to the Trust and the Company, all outstanding Registrable
Securities held by persons which are not Affiliates of the Trust or the
Company may be resold immediately without registration or restriction,
whether under the Act pursuant to Rule 144(k) or any successor
provision thereto or otherwise (in any such case, such period being
called the "Effectiveness Period").
(ii) At any time after the Effective Time of the Shelf
Registration Statement, at the earlier of (i) 30 days after the request
by any Holder that is not then an Electing Holder identified as a
selling securityholder in the Prospectus at the Effective Time or (ii)
the receipt by the Company of Notices and Questionnaires by Holders
representing 5% or greater of the outstanding Registrable Securities,
to take any action reasonably necessary to enable such Holder to use
the Prospectus forming a part thereof for resales of Registrable
Securities, including, without limitation, any action necessary to
identify such Holder as a selling securityholder in the Shelf
Registration Statement and any action required pursuant to Section 3
(j) hereof; provided, however, that nothing in this subparagraph shall
relieve such Holder of the obligation to return a completed and signed
Notice and Questionnaire to the Company or the Trust in accordance with
Section 3(a)(2) hereof and to provide to the Trust and the Company, in
writing, any information with
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<PAGE> 5
respect to such Holder or the Registrable Securities held by such
Holder as is, in the reasonable opinion of counsel to the Trust or the
Company, required under applicable law to enable such Holder to use
such Prospectus for resales of such Registrable Securities; and
(iii) If at any time prior to the end of the Effectiveness
Period, the Preferred Securities are convertible into securities other
than Company Common Stock, to cause such securities to be included in
the Shelf Registration Statement no later than the date on which the
Preferred Securities may first be converted into such securities.
(c) If (i) on or prior to the date 60 days after the First
Closing Date a Shelf Registration Statement has not been filed with the
Commission or (ii) on or prior to the date 150 days after the First Closing Date
such Shelf Registration Statement has not been declared effective or (iii) on or
after the date 60 days following the receipt by the Company of such Notices and
Questionnaires required pursuant to Section 2(b)(ii) hereof, an amendment to the
Shelf Registration Statement has not been filed pursuant to Section 3(j) hereof
(each such event, a "Registration Default"), additional interest ("Liquidated
Damages") will accrue on the Convertible Debentures, and, accordingly,
additional distributions will accrue on the Preferred Securities, from and
including the day following such Registration Default until the earlier of such
date as the Shelf Registration Statement is filed or declared effective, as the
case may be, or the end of the Effectiveness Period. Liquidated Damages will be
paid quarterly in arrears (subject to the Company's right to defer the payment
of Liquidated Damages during any Extension Period (as defined in the
Indenture)), with the first quarterly payment due on the first interest or
distribution payment date, as applicable, following the date on which such
Liquidated Damages begin to accrue, and will accrue at a rate per annum equal to
an additional one-quarter of one percent (0.25%) of the principal amount or
liquidation amount, as applicable, to and including the 60th day following such
Registration Default and one-half of one percent (0.50%) thereof from and after
the 61st day following such Registration Default. In the event that the Shelf
Registration Statement ceases to be effective during the Effectiveness Period
for more than 90 consecutive days or any 120 days, whether or not consecutive,
which time period includes any Suspension Period (as defined below), during any
12-month period, then the interest rate borne by the Convertible Debentures and
the distribution rate borne by the Preferred Securities will each increase by an
additional one-half of one percent (0.50%) per annum from the 91st or 121st day,
as the case may be, of the applicable 12-month period such Shelf Registration
Statement ceases to be effective until such time as the earlier to occur of the
Shelf Registration Statement again becoming effective and the end of the
Effectiveness Period.
(d) The Company and the Trust shall each be deemed not to have
used its best efforts to keep the Shelf Registration Statement effective during
the Effectiveness Period if either the Trust or the Company voluntarily takes
any action that would result in Electing Holders not being able to offer and
sell any of their Registrable Securities during such period, unless (i) such
action is required by applicable law, (ii) upon the occurrence of any event
contemplated by paragraph 3(d)(2)(iii) below, and such action is taken by the
Trust or the Company in good faith and for valid business reasons or (iii) the
continued effectiveness of the Shelf Registration Statement would require the
Trust or the Company to disclose a material financing, acquisition or other
corporate development, and the proper officers of the Company shall have
determined in good faith that such disclosure is not in the best interest of the
Company and its stockholders and, in the case of clause (ii) above, the Company
and the Trust thereafter promptly comply with the requirements of paragraph 3(j)
below. Any such period during which the Company and the Trust are permitted to
suspend the effectiveness of the Shelf Registration Statement is referred to
herein as the "Suspension Period."
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<PAGE> 6
3. Registration Procedures. In connection with the Shelf
Registration Statement, the following provisions shall apply:
(a) (1) The Company shall not be required to take any
action to name such Holder as a selling securityholder in the
Shelf Registration Statement or to enable such Holder to use
the Prospectus forming a part thereof for resales of
Registrable Securities until such Holder has returned a
completed and signed Notice and Questionnaire to the Company
and the Trust and provided to the Trust and the Company such
information with respect to such Holder or the Registrable
Securities held by such Holder as is, in the reasonable
opinion of counsel to the Trust or the Company, required to
enable such Holder to use the Prospectus for resales of
Registrable Securities.
(2) Not less than 40 calendar days prior to the
Effective Time of the Shelf Registration Statement, the
Company or the Trust shall mail the Notice and Questionnaire
to each Holder. No Holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement as
of the Effective Time, and no Holder shall be entitled to use
the Prospectus forming a part thereof for resales of
Registrable Securities at any time, unless such Holder has
returned a completed and signed Notice and Questionnaire to
the Company and the Trust and provided to the Trust and the
Company such information with respect to such Holder of the
Registrable Securities held by such Holder as is, in the
reasonable opinion of counsel to the Trust or the Company,
required to enable such Holder to use the Prospectus for
resales of Registrable Securities; provided, however, that
only Holders who have completed and returned the Notice and
Questionnaire and any such additional information requested of
such Holder to the Company or the Trust on or before the day
that is ten days prior to the Effective Time shall be entitled
to be named as a selling securityholder in the Shelf
Registration Statement as of the Effective Time.
(3) The term "Electing Holder" shall mean any Holder
that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section
3(a)(1) or 3(a)(2) hereof and provided to the Trust and the
Company such information with respect to such Holder or the
Registrable Securities held by such Holder as is, in the
reasonable opinion of counsel to the Trust or the Company,
required to enable such Holder to use the Prospectus for
resales of Registrable Securities.
(b) The Company and the Trust shall furnish to each Electing
Holder, prior to the Effective Time, a copy of the Shelf Registration Statement
initially filed with the Commission, and shall furnish to such Holders copies of
each amendment thereto and each amendment or supplement, if any, to the
Prospectus included therein, and shall consider in good faith for inclusion in
each such document, at the Effective Time such comments as such Holders or their
counsel reasonably may propose.
(c) The Company and the Trust shall promptly take such action
as may be necessary so that (i) each of the Shelf Registration Statement and any
amendment thereto and the Prospectus forming part thereof and any amendment or
supplement thereto (and each report or other document incorporated therein by
reference in each case) complies in all material respects with the Securities
Act and the Rules and Regulations, (ii) each of the Shelf Registration Statement
and any amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) each of the Prospectus forming part of the Shelf Registration Statement,
and any amendment or supplement to such Prospectus, does not at any time during
the Effectiveness Period include an untrue statement of a material
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<PAGE> 7
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.
(d) (1) The Company shall promptly advise the Initial
Purchasers and, in the case of clause (i), the Electing Holders and, if
requested by the Initial Purchasers or any such Electing Holder, confirm such
advice in writing:
(i) when the Shelf Registration Statement and any
amendment thereto has been filed with the Commission and when the Shelf
Registration Statement or any post effective amendment thereto has
become effective; and
(ii) of any request by the Commission for amendments
or supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information.
(2) The Company shall promptly advise each Electing
Holder of:
(i) the issuance by the Commission of any stop
order suspending the effectiveness of the Shelf Registration Statement
or the initiation of any proceedings for such purpose;
(ii) the receipt by the Company or the Trust of any
notification with respect to the suspension of the qualification of the
securities included in the Shelf Registration Statement for sale in any
jurisdiction or the initiation of any proceeding for such purpose; and
(iii) the happening of any event that requires the
making of any changes in the Shelf Registration Statement or the
Prospectus included therein so that, as of such date, such Shelf
Registration Statement and Prospectus do not contain an untrue
statement of a material fact and do not omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading (which advice shall be
accompanied by an instruction to suspend the use of the Prospectus
until the requisite changes have been made).
(e) The Company and the Trust shall each use its best efforts
to prevent the issuance, and if issued to obtain the withdrawal, of any stop
order suspending the effectiveness of the Shelf Registration Statement at the
earliest possible time.
(f) The Company and the Trust shall furnish to each Electing
Holder, without charge, at least one copy of the Shelf Registration Statement
and all post-effective amendments thereto, including financial statements and
schedules, and, if such Holder so requests in writing, all reports, other
documents and exhibits that are filed with or incorporated by reference in the
Shelf Registration Statement.
(g) The Company and the Trust shall, during the Effectiveness
Period, deliver to each Electing Holder, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such Electing
Holder may reasonably request; and the Company and the Trust each consents
(except during the continuance of any event described in Section 3(d)(2)(iii)
above or during any Suspension Period) to the use of the Prospectus and any
amendment or supplement thereto by each of the Electing Holders in connection
with the offering and sale of the Registrable Securities covered by the
Prospectus and any amendment or supplement thereto during the Effectiveness
Period.
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<PAGE> 8
(h) Prior to any offering of Registrable Securities pursuant
to the Shelf Registration Statement, the Company and the Trust shall (1)
register or qualify or cooperate with the Electing Holders and their respective
counsel in connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or "blue sky" laws of such
jurisdictions within the United States as any Electing Holder may reasonably
request, (2) keep such registrations or qualifications in effect (subject to any
Suspension Period) and comply with such laws so as to permit the continuance of
offers and sales in such jurisdictions for so long as may be necessary to enable
any Electing Holder or underwriter, if any, to complete its distribution of
Registrable Securities pursuant to the Shelf Registration Statement, and (3)
take any and all other actions necessary or advisable to enable the disposition
in such jurisdictions of such Registrable Securities; provided, however, that in
no event shall the Company or the Trust be obligated to (i) qualify generally to
do business or as a foreign corporation or as a dealer in securities in any
jurisdiction where each would not otherwise be required to so qualify but for
this Section 3(h), (ii) file any general consent to service of process in any
jurisdiction where it is not as of the date hereof so subject or (iii) subject
itself to taxation in any jurisdiction where it is not otherwise so subject.
(i) Unless any Registrable Securities shall be in book-entry
only form, the Company and the Trust shall cooperate with the Electing Holders
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold pursuant to the Shelf Registration Statement
free of any restrictive legends and in such permitted denominations and
registered in such names as Electing Holders may request in connection with the
sale of Registrable Securities pursuant to the Shelf Registration Statement.
(j) Upon the occurrence of any event contemplated by
paragraphs 2(b)(ii) and 3(d)(2)(iii) above, the Company and the Trust shall
promptly prepare a post-effective amendment or supplement to the Shelf
Registration Statement or the Prospectus, or any document incorporated therein
by reference, or file any other required document so that, as thereafter
delivered to Initial Purchasers of the Registrable Securities included therein,
the Prospectus will not include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading (except,
in each case, for an untrue statement of a material fact or omission of a
material fact made in reliance on and in conformity with written information
furnished to the Trust or the Company by or on behalf of any Electing Holders);
provided, however, if the proper officers of the Company determine in good faith
that disclosure in the Shelf Registration Statement of a material financing,
acquisition or other corporate transaction would not be in the best interests of
the Company and its stockholders, the Company and the Trust shall not be
required to prepare and file such amendment, supplement or document for such
period as such officers shall have determined in good faith is in the best
interests of the Company. Upon receipt of written notice from the Company or the
Trust of the occurrence of any event contemplated by paragraph 3(d)(2)(iii)
above or of any Suspension Period, each Holder shall forthwith discontinue
disposition of Registrable Securities until such Holder has received copies of
the supplemental or amended Prospectus required by this paragraph 3(j), or until
such Holder is advised by the Company or the Trust that the use of the
Prospectus may be resumed and, if so directed by the Company, such Holder shall
deliver to the Company (at the Company's expense) all copies then in such
Holder's possession of the Prospectus covering such Registrable Securities
current at the time of such notice.
(k) Not later than the effective date of any Shelf
Registration Statement hereunder, the Company and the Trust shall each provide a
CUSIP number for the Preferred Securities registered under such Shelf
Registration Statement; in the event of and at the time of any distribution of
the Convertible Debentures to Holders, the Company and the Trust shall provide a
CUSIP number for the Convertible
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<PAGE> 9
Debentures and provide the applicable trustee with certificates for such
Registrable Securities, in a form eligible for deposit with DTC.
(l) The Company and the Trust shall each use its best efforts
to comply with all applicable Rules and Regulations, and to make generally
available to its securityholders as soon as practicable after (i) the effective
date (as defined in Rule 158(c) under the Securities Act) of the Shelf
Registration Statement, (ii) the effective date of each post- effective
amendment to the Shelf Registration Statement, and (iii) the date of each filing
by the Company with the Commission of an Annual Report on Form 10-K that is
incorporated by reference in the Shelf Registration Statement, an earnings
statement of the Company and its subsidiaries complying with Section 11(a) of
the Securities Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158).
(m) The Company and the Trust shall each use its best efforts
to cause the Indenture, the Trust Agreement and the Guarantee to be qualified
under the Trust Indenture Act in a timely manner.
(n) In the event of an underwritten offering conducted
pursuant to Section 6 hereof, the Company and the Trust shall, if requested,
promptly include or incorporate in a Prospectus supplement or post-effective
amendment to the Shelf Registration Statement such information as the Managing
Underwriters reasonably agree should be included therein and to which the
Company does not reasonably object and shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable after
it is notified of the matters to be included or incorporated in such Prospectus
supplement or post-effective amendment.
(o) The Company and the Trust shall enter into such customary
agreements (including an underwriting agreement in customary form in the event
of an underwritten offering conducted pursuant to Section 6 hereof) and take all
other appropriate actions in order to expedite and facilitate the registration
and disposition of the Registrable Securities, and in connection therewith, if
an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures reasonably similar to those set forth
in Section 5 hereof with respect to all parties to be indemnified pursuant to
Section 5 hereof.
(p) The Company and the Trust shall:
(i) (A) make available for inspection by Electing
Holders, any underwriter participating in any disposition pursuant to
such Shelf Registration Statement, and any attorney, accountant or
other agent retained by such holders or any such underwriter all
relevant financial and other records, pertinent corporate or other
documents and properties of the Company, its subsidiaries and the
Trust, and (B) cause the officers, directors, employees, trustees and
agents of the Company and the Trust to supply all information requested
by such Holders or any such underwriter, attorney, accountant or agent
in connection with the Shelf Registration Statement, in each case, as
is customary for similar due diligence examinations; provided, however,
that each Electing Holder and its representatives and agents shall
execute an agreement (in form reasonably acceptable to the Company)
providing that all records, information and documents that are
designated in writing by the Company and the Trust, in good faith, as
confidential shall not be used for any other purpose and shall be kept
confidential by such Holders and any such underwriter, attorney,
accountant or agent, unless such disclosure is made in connection with
a court proceeding or required by law, or such records, information or
documents become available to the public generally or through a third
party without an accompanying obligation of confidentiality; and
provided further that, if the foregoing inspection and information
gathering would, in the Company's reasonable judgment, disrupt the
Company's conduct of its business, such inspection
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<PAGE> 10
and information gathering shall be coordinated on behalf of the
Electing Holders and the other parties entitled thereto by one counsel
designated by and on behalf of Electing Holders and other parties (the
fees and expenses of such counsel to be borne by such Electing Holders
except to the extent set forth in Section 4);
(ii) in connection with any underwritten offering
conducted pursuant to Section 6 hereof, make such representations and
warranties to the Holders participating in such underwritten offering
and to the Managing Underwriters, in form, substance and scope as are
customarily made by the Company and the Trust to underwriters in
primary underwritten offerings of equity and convertible preferred and
debt securities and covering matters including, but not limited to,
those set forth in the Purchase Agreement;
(iii) in connection with any underwritten offering
conducted pursuant to Section 6 hereof, obtain opinions of counsel
(which counsel may be an employee of the Company) to the Company and
the Trust (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters)
addressed to each Holder participating in such underwritten offering
and the underwriters, covering such matters as are customarily covered
in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by such Holders and underwriters (it
being agreed that the matters to be covered by such opinions shall
include, without limitation, as of the date of the opinion and as of
the Effective Time of the Shelf Registration Statement or most recent
post-effective amendment thereto, as the case may be, a customary
opinion on the absence from the Shelf Registration Statement and the
Prospectus, including the documents incorporated by reference therein,
of an untrue statement of a material fact or the omission of a material
fact required to be stated therein or necessary to make the statements
therein not misleading;
(iv) in connection with any underwritten offering
conducted pursuant to Section 6 hereof, obtain "cold comfort" letters
and updates thereof from the independent public accountants of the
Company and the Trust, addressed to each Holder participating in such
underwritten offering (if such Holder has provided such letter,
representations or documentation, if any, required for such "cold
comfort" letter to be so addressed) and the underwriters, in customary
form and covering matters of the type customarily covered in "cold
comfort" letters in connection with primary underwritten offerings;
(v) in connection with any underwritten offering
conducted pursuant to Section 6 hereof, deliver such documents and
certificates as may be reasonably requested by any Holders
participating in such underwritten offering and the Managing
Underwriters, if any, including, without limitation, certificates to
evidence compliance with Section 3(j) hereof and with any conditions
contained in the underwriting agreement or other agreements entered
into by the Company and the Trust.
(q) The Company and the Trust will each 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
hereunder.
(r) The Company and the Trust shall each use reasonable best
efforts to take all other steps necessary to effect the registration, offering
and sale of the Registrable Securities covered by the Shelf Registration
Statement contemplated hereby.
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<PAGE> 11
(s) Upon receipt of written notice from the Company that a
Suspension Period is in effect, each Holder shall forthwith discontinue
disposition of Registrable Securities until such Holder has received copies of
the supplemental or amended Prospectus required by Section 3(j) hereof, or until
such Holder is advised in writing by the Company that the use of the Prospectus
may be resumed, and, if so directed by the Company, such Holder shall deliver to
the Company (at the Company's expense) all copies then in such Holder's
possession, other than permanent file copies, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice.
4. Registration Expenses. The Company and the Trust shall each
bear all fees and expenses customarily borne by issuers in a underwritten
secondary offering by selling securityholders or in an underwritten offering, as
the case may be, incurred in connection with the performance of its obligations
under Sections 2, 3 and 6 hereof. In addition, in the event of an underwritten
offering of Registrable Securities conducted pursuant to Section 6 hereof, or if
in any other event the Company requires that inspection and information
gathering be coordinated by counsel for the Electing Holders as provided in
Section 3(p)(i) hereof, the Company shall pay the fees and expenses of a single
counsel selected by the Electing Holders of not less than 25% of the Registrable
Securities to be included in such underwritten offering (or, in any such other
event, included in the Shelf Registration Statement) to represent them.
5. Indemnification and Contribution.
(a) Indemnification by the Company. Upon the registration of
the Registrable Securities pursuant to Section 2 hereof, and in consideration of
the agreements of the Electing Holders and any underwriters, selling agents or
other securities professionals contained in Section 5(b) hereof, the Company and
the Trust, jointly and severally, agree to indemnify and hold harmless each
Electing Holder and each underwriter, selling agent or other securities
professional, if any, which facilitates the disposition of Registrable
Securities, and each of their respective officers and directors and each person
who controls such Electing Holder, underwriter, selling agent or other
securities professional within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act (each such person being sometimes referred to
as an "Indemnified Person") against any losses, claims, damages or liabilities,
joint or several, to which such Indemnified 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 any Shelf Registration Statement under which such Registrable
Securities are to be registered under the Securities Act, or any Prospectus
contained therein or any amendment or supplement thereto, 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 such Indemnified Person for any legal or other
expenses reasonably incurred by them 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 such Shelf Registration Statement or
Prospectus, or amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company or the Trust by such Indemnified
Person expressly for use therein.
The foregoing notwithstanding, the Trust and the Company shall
not be liable to the extent that such losses, claims, damages or liabilities
arise out of or are based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Prospectus that is a preliminary
prospectus
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<PAGE> 12
if such Indemnified Person failed to send or deliver a copy of the Prospectus
(in the form it was first provided to such parties for confirmation of sales or
as amended or supplemented prior to such confirma tion of sales) to the Electing
Holders asserting such losses, claims, damages or liabilities on or prior to the
delivery of written confirmation of any sale of securities covered thereby to
such Electing Holder in any case where such delivery is required by the
Securities Act and a court of competent jurisdiction in a judgment not subject
to appeal or final review shall have determined that such Prospectus would have
corrected such untrue statement or omission.
In addition, the Trust and the Company shall not be liable to
the extent that any such losses, claims, damages or liabilities arise out of or
are based upon an untrue statement or alleged untrue statement or omission or
alleged omission in a Prospectus (x) if such untrue statement or omission or
alleged untrue statement or omission is corrected in an amendment or supplement
to such Prospectus and (y) having previously been furnished by or on behalf of
the Trust or the Company with copies of the Prospectus as amended or
supplemented, such Indemnified Person thereafter fails to deliver such
Prospectus as so amended or supplemented prior to or concurrently with the sale
to the person who purchased a Registrable Security from such Indemnified Person
and who is asserting such losses, claims, damages or liabilities.
(b) Indemnification by the Holders and any Agents and
Underwriters. Each Electing Holder agrees, as a consequence of the inclusion of
any of such Holder's Registrable Securities in such Shelf Registration
Statement, and each underwriter, selling agent or other securities professional,
if any, which facilitates the disposition of Registrable Securities shall agree,
as a consequence of facilitating such disposition of Registrable Securities,
severally and not jointly, to (i) indemnify and hold harmless each of the
Company and the Trust, its directors, trustees, agents and officers who sign any
Shelf Registration Statement and each person, if any, who controls the Company
or the Trust within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act (collectively referred to as the "Indemnified
Party"), against any losses, claims, damages or liabilities to which the Company
or the Trust or such other persons 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 such Shelf
Registration Statement or Prospectus, or any amendment or supplement, 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, 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 Company or the Trust by such Electing Holder, underwriter,
selling agent or other securities professional expressly for use therein, and
(ii) reimburse the Company and the Trust for any legal or other expenses
reasonably incurred by the Company and the Trust in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred.
(c) Notices of Claims, Etc. If any action or proceeding
(including any governmental investigation or inquiry) shall be brought or
asserted against an Indemnified Person under subsection (a) or an Indemnified
Party under subsection (b) (collectively referred to as the "Indemnified
Holder") in respect of which indemnity may be sought, such Indemnified Holder
shall promptly notify the person against whom such indemnity may be sought (an
"Indemnifying Party") in writing, and the Indemnifying Party shall assume the
defense thereof, including the employment of counsel reasonably satisfactory to
such Indemnified Holder and the payment of all expenses in connection therewith;
but the omission so to notify the Indemnifying Party shall not relieve it from
any liability which it may have to any Indemnified Holder otherwise than under
this Section 5. Such Indemnified Holder shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such separate counsel shall be the expense of such
Indemnified Holder unless (i) the Indemnifying Party has
12
<PAGE> 13
agreed to pay such fees and expenses, (ii) the Indemnifying Party shall have
failed to promptly assume the defense of such action or proceeding or has failed
to employ counsel reasonably satisfactory to such Indemnified Holder in any such
action or proceeding or (iii) the named parties to any such action or proceeding
(including any impended parties) include both such Indemnified Holder and the
Indemnifying Party, and such Indemnified Holder shall have been advised by
counsel that there may be one or more legal defenses available to such
Indemnified Holder that are different from or additional to those available to
the Indemnifying Party or that a conflict may exist between the Indemnified
Holder and the Indemnifying Party. If such Indemnified Holder notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party as permitted by the provisions of the
preceding sentence, the Indemnifying Party shall not have the right to assume
the defense of such action or proceeding on behalf of such Indemnified Holder.
The foregoing notwithstanding, the Indemnifying Party shall not be liable for
the fees and expenses of more than one legal counsel (in addition to any local
counsel) at any time for such Indemnified Holder and any other Indemnified
Holders (which firm shall be designated in writing by such Indemnified Holders)
in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances. The Indemnifying
Party shall not be liable for any settlement of any such action or proceeding
effected without the Indemnifying Party's prior written consent, and the
Indemnifying Party agrees to indemnify and hold harmless any Indemnified Holder
from and against any loss, damage, liability or expense by reason of any
settlement of any action effected with the written consent of the Indemnifying
Party. No Indemnifying Party shall, without the written consent of the
Indemnified Holder (which consent shall not be unreasonably withheld), effect
the settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
Indemnified Holder is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment includes an unconditional release
of the Indemnified Holder from all liability arising out of such action or
claim.
(d) Contribution. 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 5 is for any reason held to be unavailable to
an indemnified Holder or is insufficient to hold harmless an indemnified party,
then each Indemnifying Party shall contribute to the damages paid by the
Indemnified Holder, and the Indemnifying Party shall contribute to the damages
paid by the Indemnified Holder 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 misrepresenta tion. In determining the amount of
contribution to which the respective parties are entitled, there shall be
considered the relative fault of the Indemnifying Party and the Indemnified
Holder in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Holder shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such Indemnifying Party or by such Indemnified Holder,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties agree
that it would not be just and equitable if contribution pursuant to this Section
5(d) were determined by pro rata or per capita allocation (even if the Electing
Holders or any underwriters, selling agents or other securities professionals or
all of them were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in this Section 5(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such Indemnified Party in connection
with
13
<PAGE> 14
investigating or defending any such action or claim. The obligations of the
Electing Holders and any underwriters, selling agents or other securities
professionals in this Section 5(d) to contribute shall be several in proportion
to the percentage of principal amount of Registrable Securities registered or
underwritten, as the case may be, by them and not joint.
(e) Notwithstanding any other provision of this Section 5, in
no event will any (i) Electing Holder be liable to any person under this Section
5 for any amounts in excess of the dollar amount of the proceeds to be received
by such holder from the sale of such holder's Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) pursuant to
any Shelf Registration Statement under which such Registrable Securities are to
be registered under the Securities Act and (ii) underwriter, selling agent or
other securities professional be liable to any person hereunder for any amounts
in excess of the discount, commission or other compensation payable to such
underwriter, selling agent or other securities professional with respect to the
Registrable Securities underwritten by it and distributed to the public,
(f) The obligations of the Company and the Trust under this
Section 5 shall be in addition to any liability which the Company and the Trust
may otherwise have to any Indemnified Person and the obligations of any
Indemnified Person under this Section 5 shall be in addition to any liability
which such Indemnified Person may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company, each
Administrative Trustee of the Trust and to each person, if any, who controls the
Trust or the Company within the meaning of the Act. The remedies provided in
this Section 5 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to an indemnified party at law or in equity.
6. Underwritten Offering. Any Electing Holder of Registrable
Securities who desires to do so may sell Registrable Securities (in whole or in
part) in an underwritten offering; provided that (i) the Holders of at least a
majority in aggregate principal amount of the outstanding Registrable Securities
shall request such an offering and (ii) at least such aggregate principal amount
of such Registrable Securities shall be included in such offering. Upon receipt
of such a request, the Company and the Trust shall provide all Holders of
Registrable Securities written notice of the request, which notice shall inform
such Holders that they have the opportunity to participate in the offering. In
any such underwritten offering, the investment banker or bankers and manager or
managers that will administer the offering will be selected by, and the
underwriting arrangements with respect thereto (including, subject to clause
(ii) above, the size of the offering) will be approved by the Holders of a
majority of the Registrable Securities to be included in such offering,
provided, however, that such investment bankers and managers and underwriting
arrangements must be reasonably satisfactory to the Company and the Trust. No
Holder may participate in any underwritten offering contemplated hereby unless
(a) such Holder agrees to sell such Holder's Registrable Securities to be
included in the underwritten offering in accordance with any approved
underwriting arrangements, (b) such Holder completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such approved
underwriting arrangements, and (c) if such Holder is not then an Electing
Holder, such Holder returns a completed and signed Notice and Questionnaire to
the Company and the Trust in accordance with Section 3(a)(2) hereof (but in no
event later than 10 days prior to commencement of the underwritten offering) and
provides to the Trust and the Company, in writing, any information with respect
to such Holder or the Registrable Securities held by such Holder as is, in the
reasonable opinion of counsel to the Trust or the Company, required under
applicable law to enable such Holder to use such Prospectus for resales of such
Registrable Securities, each within a reasonable amount of time before such
underwritten offering. The Holders participating in any underwritten offering
shall be responsible for any underwriting discounts and commissions and fees
and, subject to Section 4 hereof, expenses of their own
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<PAGE> 15
counsel. The Company and the Trust shall pay all expenses customarily borne by
issuers, including but not limited to filing fees, the fees and disbursements of
its counsel and independent public accountants and any printing expenses
incurred in connection with such underwritten offering. Notwithstanding the
foregoing or the provisions of Section 3(n) hereof, upon receipt of a request
from the Managing Underwriter or a representative of Holders of a majority of
the Registrable Securities to be included in an underwritten offering to prepare
and file an amendment or supplement to the Shelf Registration Statement and
Prospectus in connection with an underwritten offering, the Company and the
Trust may delay the filing of any such amendment or supplement for up to 90 days
if the Board of Directors of the Company shall have determined in good faith
that the Company has a bona fide business reason for such delay.
7. Miscellaneous.
(a) Amendments and Waivers. This Agreement, including this
Section 7(a), may be amended, and waivers or consents to departures from the
provisions hereof may be given, only by a written instrument duly executed by
the Company and the Holders of a majority in aggregate principal amount of
Registrable Securities then outstanding. Each Holder of Registrable Securities
outstanding at the time of any such amendment, waiver or consent or thereafter
shall be bound by any amendment, waiver or consent effected pursuant to this
Section 7(a), whether or not any notice, writing or marking indicating such
amendment, waiver or consent appears on the Registrable Securities or is
delivered to such Holder.
(b) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at such address set forth on
the record books of the Company or the Trust, as the case may be;
(ii) if to the Initial Purchasers, initially at the
address set forth in the Purchase Agreement; and
(iii) if to the Company or the Trust, initially at
its address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have duly given when
received.
The Initial Purchasers or the Company and the Trust by notice
to the other may designate additional or different addresses for subsequent
notices or communications.
(c) Parties in Interest. The parties to this Registration
Rights Agreement intend that all Holders of Registrable Securities shall be
entitled to receive the benefits of this Registration Rights Agreement and that
any Electing Holder shall be bound by the terms and provisions of this
Registration Rights Agreement by reason of such election with respect to the
Registrable Securities which are included in a Shelf Registration Statement. All
the terms and provisions of this Registration Rights Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto and any Holder from time to time of
the Registrable Securities to the aforesaid extent. In the event that any
transferee of any Holder of Registrable Securities shall acquire Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action of
any kind, be entitled to receive the benefits of and,
15
<PAGE> 16
if an Electing Holder, be conclusively deemed to have agreed to be bound by and
to perform all of the terms and provisions of this Registration Rights Agreement
to the aforesaid extent.
(d) Counterparts. This Registration Rights Agreement may be
executed in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
(e) Headings. The headings in this Registration Rights
Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(f) Governing Law. This Registration Rights Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to any provisions relating to conflicts of laws.
(g) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties hereto shall be enforceable to the fullest extent permitted by law.
8. 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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<PAGE> 17
Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Trust and you.
Very truly yours,
Central Parking Finance Trust
By:
----------------------------------------
Name: Andrew M. Paalborg
Title: Administrative Trustee
Central Parking Corporation
By:
----------------------------------------
Name: Monroe J. Carell, Jr.
Title: Chief Executive Officer and Chairman
of the Board
17
<PAGE> 18
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
Bear, Stearns & Co. Inc.
J.C. Bradford & Co.
William Blair & Company, L.L.C.
NationsBanc Montgomery Securities LLC
SunTrust Equitable Securities
By:
-----------------------------------
(Bear, Stearns & Co. Inc.)
On behalf of each of the Initial Purchasers
18
<PAGE> 19
Exhibit A
CENTRAL PARKING CORPORATION
CENTRAL PARKING FINANCE TRUST
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: (DATE)
The Depository Trust Company ("DTC") has identified you as a
DTC Participant through which beneficial interests in 5 1/4% Convertible Trust
Issued Preferred Securities (liquidation amount $25 per preferred security) (the
"Preferred Securities") of Central Parking Finance Trust (the "Trust") are held.
The Preferred Securities are guaranteed on a subordinated basis by Central
Parking Corporation (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 between the Company and Chase Bank of Texas, National Association, as
trustee (the "Guarantee") and may be exchanged under certain circumstances into
5 1/4% Convertible Subordinated Debentures due April 1, 2028 of the Company (the
"Convertible Debentures") held by the Trust and converted into common stock,
$0.01 par value per share ("Company Common Stock"), of the Company. The
Preferred Securities, the Convertible Debentures, the Guarantee and the Company
Common Stock are referred to collectively as the "Registrable Securities."
The Company and the Trust are in the process of registering
the Registrable Securities under the Securities Act of 1933, as amended, for
resale by the beneficial owners thereof. In order to have their Registrable
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Registrable
Securities receive a copy of the enclosed materials as soon as possible as their
rights to have the Registrable Securities included in the registration statement
depend upon their returning the Notice and Questionnaire by [DEADLINE FOR
RESPONSE]. Please forward a copy of the enclosed documents to each beneficial
owner that holds interests in the Registrable Securities through you. If you
require more copies of the enclosed materials or have any questions pertaining
to this matter, please contact:
Central Parking Corporation
2401 21st Avenue South, Suite 200
Nashville, Tennessee 37212
Attn: General Counsel
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<PAGE> 20
FORM OF
CENTRAL PARKING CORPORATION
CENTRAL PARKING FINANCE TRUST
NOTICE OF REGISTRATION STATEMENT
AND
SELLING SECURITY HOLDER QUESTIONNAIRE
[Date]
Central Parking Corporation (the "Company") and Central Parking Finance
Trust (the "Trust") have filed with the United States Securities and Exchange
Commission (the "Commission") a preliminary registration statement on Form S-3
(the "Shelf Registration Statement") for the registration and resale under Rule
415 of the Securities Act of 1933, as amended (the "Securities Act"), of the
Trust's 5 1/4% Convertible Trust Issued Preferred Securities (liquidation
preference $25 per preferred security) (the "Preferred Securities"), the
Company's 5 1/4% Convertible Subordinated Debentures due April 1, 2028 (the
"Convertible Debentures"), the guarantee of the Company pursuant to the
Guarantee Agreement between the Company and Chase Bank of Texas, National
Association, as trustee (the "Guarantee"), the shares of common stock of the
Company, $0.01 par value, issuable upon conversion of the Preferred Securities
and/or the Convertible Debentures (the "Company Common Stock", and together with
the Preferred Securities, the Convertible Debentures, the Guarantee and the
Company Common Stock, the "Registrable Securities"), in accordance with the
terms of the Registration Rights Agreement, dated as of March 18, 1998 (the
"Registration Rights Agreement"), between the Trust, the Company and the Initial
Purchasers named therein (the "Initial Purchasers"). A copy of the Registration
Rights Agreement is attached hereto. All capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Registration Rights
Agreement.
Each beneficial owner of Registrable Securities is entitled to have the
Registrable Securities beneficially owned by it included in the Shelf
Registration Statement. In order to have Registrable Securities included in the
Shelf Registration Statement, this Notice of Registration Statement and Selling
Securityholder Questionnaire ("Notice and Questionnaire") must be completed,
executed and delivered to the Company's counsel at the address set forth herein
for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners of
Registrable Securities who do not complete, execute and return this Notice and
Questionnaire by such date (i) will not be named as selling security holders in
the Shelf Registration Statement and related Prospectus and (ii) may not sell
their Registrable Securities pursuant thereto, unless the Company, in its
discretion, consents to include such owner's securities in the Shelf
Registration Statement.
Certain legal consequences arise from being named as a selling security
holder in the Shelf Registration Statement and related Prospectus. Accordingly,
holders and beneficial owners of Registrable Securities are advised to consult
their own securities law counsel regarding the consequences of being named or
not being named as a selling security holder in the Shelf Registration Statement
and related Prospectus.
ELECTION
The undersigned holder (the "Selling Security Holder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire agrees
to be
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<PAGE> 21
bound with respect to such Registrable Securities by the terms and conditions of
this Notice and Questionnaire and the Registration Rights Agreement.
The Selling Security Holder hereby undertakes, in accordance with
Section 5 of the Registration Rights Agreement, to (i) indemnify and hold
harmless the Company and the Trust, its directors, trustees, agents and officers
who sign any Shelf Registration Statement and each person, if any, who controls
the Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities to which the Company or such other persons 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 an
untrue statement or alleged untrue statement of a material fact contained in
such Shelf Registration Statement or prospectus which is a part thereof, or any
amendment or supplement thereto, 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, 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 Company or the Trust by
such Selling Security Holder expressly for use therein, and (ii) reimburse the
Company and the Trust for any reasonable legal or other out-of-pocket expenses
reasonably incurred by the Company and the Trust in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Selling Security Holder shall not be
liable for any claims thereunder in excess of the amount of net proceeds
received by such Selling Security Holder from the sale of Registrable Securities
pursuant to the Shelf Registration Statement. The undersigned further
undertakes, if applicable, to comply with the provisions of Sections 5(c) and
(d) of the Registration Rights Agreement that are applicable to the undersigned.
The Selling Security Holder hereby undertakes to comply with the
provisions of Section 3(a)(2) of the Registration Rights Agreement, which
provide that such Holder must notify the Company or the Trust on or before the
day that is ten days prior to the proposed date of sale pursuant to the Shelf
Registration Statement in order for the Company and Trust to determine whether
the current Prospectus complies with Section 3(j) of the Registration Rights
Agreement.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement under the Securities Act, the Selling Security Holder
will be required to deliver to the Company, the Trust and Trustee the Notice of
Transfer set forth in Annex B attached to this Notice and Questionnaire
(completed and signed) and hereby undertakes to do so.
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<PAGE> 22
The Selling Security Holder hereby provides the following information
to the Company and the Trust and represents and warrants that such information
is accurate and complete:
QUESTIONNAIRE FOR REGISTERED RESALES
(1) (a) Full Legal Name of Selling Security Holder:
(b) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not
the same as (b) above) Through Which Registrable Securities
Listed in (3) below are Held:
(2) Address for Notices to Selling Security Holder:
Telephone:
Fax:
Contact Person:
(3) Beneficial Ownership of Registrable Securities:
Except as set forth below in this item (3), the undersigned does not
beneficially own any Securities or shares of Company Common Stock issued upon
conversion of any Securities.
(a) Principal amount or liquidation preference of Registrable
Securities (as defined in the Registration Rights Agreement)
beneficially owned:
CUSIP No(s). of such Registrable Securities:
Number of shares of Company Common Stock (if any) issued upon
conversion of such Registrable Securities:
(b) Principal amount or liquidation preference of Registrable
Securities which the undersigned wishes to be included in the
Shelf Registration Statement:
CUSIP No(s). of such Registrable Securities to be included in
the Shelf Registration Statement:
Number of shares of Company Common Stock (if any) issued upon
conversion of such Registrable Securities which are to be
included in the Shelf Registration Statement:
A-4
<PAGE> 23
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Security Holder is not the beneficial or registered owner of any shares of
Common Stock or any other securities of the Company or any of its affiliates,
other than the Registrable Securities listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Security Holder nor any
of its affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Security Holder
intends to distribute the Registrable Securities listed above in Item (3) only
as follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Security Holder or alternatively,
through underwriters, broker-dealers or agents. Such Registrable Securities may
be sold in one or more transactions at fixed prices, at prevailing market prices
at the time of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which may involve
crosses or block transactions) (i) on any national securities exchange or
quotation service on which the Registrable Securities may be listed or quoted at
the time of sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the over-the-counter market,
or (iv) through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Security Holder may enter into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the Registrable Securities in the course of hedging positions they
assume. The Selling Security Holder may also sell Registrable Securities short
and deliver Registrable Securities to close out such short positions, or loan or
pledge Registrable Securities to broker-dealers that in turn may sell such
securities.
State any exceptions here:
Note: In no event will such method(s) of distribution take the form
of an underwritten offering of the Registrable Securities
without the prior agreement of the Company and the Trust.
By signing below, the Selling Security Holder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder.
In the event that the Selling Security Holder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the date on
which such information is provided to the Company and
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<PAGE> 24
the Trust, the Selling Security Holder agrees to notify the transferee(s) at the
time of the transfer of its rights and obligations under this Notice and
Questionnaire and the Registration Rights Agreement.
By signing below, the Selling Security Holder consents to the
disclosure of the information contained herein in its answers to Items (1)
through (6) above and the inclusion of such information in the Shelf
Registration Statement and related Prospectus. The Selling Security Holder
understands that such information will be relied upon by the Trust and the
Company in connection with the preparation of the Shelf Registration Statement
and related Prospectus.
In accordance with the Selling Security Holder's obligation under
Section 3(a) of the Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Security Holder agrees to promptly notify the Company and the Trust of
any inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration Statement
remains in effect. All notices hereunder and pursuant to the Registration Rights
Agreement shall be made in writing, by hand-delivery, first-class mail, or air
courier guaranteeing overnight delivery as follows:
(i) To the Trust:
Attn:
(ii) With a copy to:
Attn:
Once this Notice and Questionnaire is executed by the Selling Security
Holder and received by the Company's counsel, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives and assigns of the
Company, the Trust and the Selling Security Holder (with respect to the
Registrable Securities beneficially owned by such Selling Security Holder and
listed in Item (3) above). This Agreement shall be governed in all respects by
the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
A-6
<PAGE> 25
SELLING SECURITY HOLDER
(Print/type full legal name of beneficial owner of Registrable Securities)
By:
-----------------------------
Name:
Title:
CENTRAL PARKING FINANCE TRUST
By:
-----------------------------
Name:
Title:
CENTRAL PARKING CORPORATION
By:
-----------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE
FOR RECEIPT ON OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL
AT:
Mark Manner
Harwell Howard Hyne Gabbert & Manner, P.C.
1800 First American Center
Nashville, Tennessee 37238
A-7
<PAGE> 26
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Attention:
2401 21st Avenue South
Suite 200
Nashville, Tennessee 37212
Re: Central Parking Finance Trust (the "Trust")
5 1/4% Convertible Trust Issued
Preferred Securities (the "Preferred Securities")
Dear Sirs:
Please be advised that has transferred Preferred
Securities, or $ aggregate principal amount of Central Parking Corporation
(the "Company") 5 1/4% Convertible Subordinated Debentures due April 1, 2028
(the "Convertible Debentures"), or shares of the Company's common
stock, $0.01 par value per share, issued on conversion of the Preferred
Securities and/or the Convertible Debentures ("Stock") pursuant to an effective
Shelf Registration Statement on Form S-3 (File No. 333- ) filed by the
Company.
We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above-named beneficial owner of the
Preferred Securities, Convertible Debentures or Stock is named as a "Selling
Security Holder" in the Prospectus dated , or in amendments or
supplements thereto, and that the aggregate principal amount of the Convertible
Debentures, or number of shares of Preferred Securities or shares of Stock
transferred are [a portion of] the Debentures, the Preferred Securities or Stock
listed in such Prospectus, as amended or supplemented, opposite such owner's
name.
Very truly yours,
(Name)
Dated
B-1
<PAGE> 1
====================================
COMMON SECURITIES GUARANTEE AGREEMENT
CENTRAL PARKING CORPORATION
Dated as of March 18, 1998
====================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
DEFINITIONS AND INTERPRETATION
<S> <C> <C>
SECTION 1.1. Definitions and Interpretation............................... 2
ARTICLE II
GUARANTEE
SECTION 2.1. Guarantee.................................................... 4
SECTION 2.2. Subordination................................................ 4
SECTION 2.3. Waiver of Notice and Demand.................................. 4
SECTION 2.4. Obligations Not Affected..................................... 5
SECTION 2.5. Rights of Holders............................................ 6
SECTION 2.6. Guarantee of Payment......................................... 6
SECTION 2.7. Subrogation.................................................. 6
SECTION 2.8. Independent Obligations...................................... 7
SECTION 2.9. Acknowledgment by Guarantor.................................. 7
ARTICLE III
LIMITATION OF TRANSACTIONS; RANKING
SECTION 3.1. Limitation of Transactions................................... 7
SECTION 3.2. Ranking...................................................... 8
ARTICLE IV
TERMINATION
SECTION 4.1. Termination.................................................. 8
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Successors and Assigns....................................... 9
SECTION 5.2. Amendments................................................... 9
SECTION 5.3. Notices...................................................... 9
SECTION 5.4. Benefit...................................................... 10
SECTION 5.5. Governing Law................................................ 10
</TABLE>
<PAGE> 3
COMMON SECURITIES GUARANTEE AGREEMENT
This COMMON SECURITIES GUARANTEE AGREEMENT (the "Common
Securities Guarantee"), dated as of March 18, 1998, is executed and delivered by
Central Parking Corporation, a Tennessee corporation (the "Guarantor"), for the
benefit of the Holders (as defined herein) from time to time of the Common
Securities (as defined herein) of Central Parking Finance Trust, a Delaware
statutory business trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Trust Agreement"), dated as of March 18, 1998, among the trustees of
the Trust named therein, the Guarantor, as sponsor, and the Holders from time to
time of undivided beneficial interests in the assets of the Trust, the Trust is
issuing on the date hereof 123,711 common securities, having an aggregate stated
liquidation amount of $25 per Common Security, designated the 5 1/4% Trust
Issued Common Securities (the "Common Securities") (plus up to an additional
12,371 Common Securities, having a liquidation amount of $25 per Common Security
to meet capital requirements of the Trust in the event of an issuance of
Additional Preferred Securities (as defined in the Trust Agreement)), designated
the 5 1/4% Convertible Common Securities;
WHEREAS, as incentive for the Holders to purchase the Common
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Common Securities Guarantee, to guarantee the
obligations of the Trust to the Holders on the terms and conditions set forth
herein;
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Preferred Securities Guarantee") in substantially
identical terms to this Common Securities Guarantee for the benefit of the
holders of the Preferred Securities (as defined herein), except that if an Event
of Default (as defined in the Indenture), has occurred and is continuing, the
rights of Holders to receive Guarantee Payments (as defined herein) under this
Common Securities Guarantee shall be subordinated to the rights of holders of
Preferred Securities to receive Guarantee Payments (as defined in the Preferred
Securities Guarantee) under the Preferred Securities Guarantee; and
NOW, THEREFORE, in consideration of the purchase by each
Holder, which purchase the Guarantor hereby agrees shall benefit the Guarantor,
the Guarantor executes and delivers this Common Securities Guarantee for the
benefit of the Holders.
<PAGE> 4
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation
In this Common Securities Guarantee, unless the context
otherwise requires:
(a) Capitalized terms used in this Common Securities
Guarantee but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) terms defined in the Trust Agreement as at the date
hereof have the same meaning when used in this Common Securities
Guarantee unless otherwise defined in the Common Securities Guarantee;
(c) a term defined anywhere in this Common Securities
Guarantee has the same meaning throughout;
(d) all references to "the Common Securities Guarantee"
or "this Common Securities Guarantee" are to this Common Securities
Guarantee as modified, supplemented or amended from time to time;
(e) all references in this Common Securities Guarantee to
Articles and Sections are to Articles and Sections of this Common
Securities Guarantee unless otherwise specified;
(f) a term defined in the Trust Indenture Act of 1939, as
amended, has the same meaning when used in this Common Securities
Guarantee, unless otherwise defined in this Common Securities Guarantee
or unless the context otherwise requires;
(g) a reference to the singular includes the plural and
vice versa;
(h) a reference to any Person shall include its
successors and assigns;
(i) a reference to any agreement or instrument shall mean
such agreement or instrument as supplemented, modified, amended, or
amended and restated, and in effect from time to time; and
(j) a reference to any statute, law, rule or regulation,
shall include any amendments thereto applicable to the relevant Person,
and any successor statute, law, rule or regulation.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Common
2
<PAGE> 5
Securities, to the extent not paid or made by the Trust: (i) any accrued and
unpaid Distributions (as defined in the Trust Agreement) that are required to be
paid on the Common Securities to the extent the Trust has funds available
therefor, (ii) the redemption price, with respect to any Common Securities
called for redemption by the Trust (the "Redemption Price"), to the extent the
Trust has funds available therefor, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Trust (other than in connection
with the distribution of Convertible Debentures to the Holders or the redemption
of all the Common Securities (as provided in the Trust Agreement)), the lesser
of (a) the aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Common Securities to the date of payment to the extent the
Trust has funds available therefor and (b) the amount of assets of the Trust
remaining available for distribution to Holders upon the liquidation of the
Trust (in either case, the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and
records of the Trust, of any Common Securities.
"Indenture" means the Indenture dated as of March 18, 1998
among the Guarantor and Chase Bank of Texas, National Association, a Texas
banking corporation, as trustee, pursuant to which the Convertible Debentures
are to be issued to the Property Trustee (as defined in the Indenture) of the
Trust.
"Indenture Event of Default" means an event of default as
defined in the Indenture.
"Preferred Securities" means the securities representing
preferred undivided beneficial interests in the assets of the Trust.
ARTICLE II
GUARANTEE
SECTION 2.1. Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders (except to the extent paid by the Trust), as and when due,
regardless of any defense, right of set-off or counterclaim that the Trust may
have or assert, the Guarantee Payments, without duplication. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Trust to pay
such amounts to the Holders.
3
<PAGE> 6
SECTION 2.2. Subordination
Upon the occurrence and during the continuation of an Event of
Default under the Indenture, holders of Preferred Securities shall have priority
over Holders with respect to distributions and payments on liquidation,
redemption and otherwise.
SECTION 2.3. Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this
Common Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Trust or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 2.4. Obligations Not Affected
The obligations, covenants, agreements and duties of the
Guarantor under this Common Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Trust of any express
or implied agreement, covenant, term or condition relating to the
Common Securities to be performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of
all or any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Common
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Common
Securities (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or other sum
payable that results from the extension of any interest payment period
on the Convertible Debentures or any extension of the maturity date of
the Convertible Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Common Securities, or any action on the part of the Trust
granting indulgence or extension of any kind;
4
<PAGE> 7
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Trust or any of the assets of the Trust;
(e) any invalidity of, or defect or deficiency in, the
Common Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a
guarantor, it being the intent of this Section 2.4 that the obligations
of the Guarantor hereunder shall be absolute and unconditional under
any and all circumstances.
There shall be no obligation of the Holders or any other
Persons to give notice to, or obtain consent of, the Guarantor with respect to
the happening of any of the foregoing.
SECTION 2.5. Rights of Holders
The Guarantor expressly acknowledges that any Holder may
directly institute a legal proceeding against the Guarantor to enforce the
obligations of the Guarantor under this Common Securities Guarantee without
first instituting a legal proceeding against the Trust, the Guarantee Trustee or
any other Person or entity.
SECTION 2.6. Guarantee of Payment
This Common Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 2.7. Subrogation
The Guarantor shall be subrogated to all (if any) rights of
the Holders against the Trust in respect of any amounts paid to such Holders by
the Guarantor under this Common Securities Guarantee; provided, however, that
the Guarantor shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any rights that it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Common Securities Guarantee, if, at the time
of any such payment, any amounts are due and unpaid under this Common Securities
Guarantee. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
5
<PAGE> 8
SECTION 2.8. Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Trust with respect to the Common
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Common
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 2.4 hereof.
SECTION 2.9. Acknowledgment by Guarantor
The Guarantor acknowledges its obligation to issue and deliver
common stock upon the conversion of the Common Securities.
ARTICLE III
LIMITATION OF TRANSACTIONS; RANKING
SECTION 3.1. Limitation of Transactions
So long as any Common Securities remain outstanding, if (i)
the Company has exercised its option to defer interest payments on the
Convertible Debentures by extending the interest payment period and such
extension shall be continuing, (ii) if there shall have occurred any Event of
Default under this Common Securities Guarantee, or (iii) there shall have
occurred and be continuing any event that, with the giving of notice or the
lapse of time or both, would constitute an Indenture Event of Default, then the
Guarantor has agreed (a) not to declare or pay dividends on, make a
distribution with respect to, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of its capital stock (other than (i) purchases or
acquisitions of shares of common stock in connection with the satisfaction by
the Guarantor of its obligations under any employee benefit plans or the
satisfaction by the Guarantor of its obligations pursuant to any contract or
security requiring the Guarantor to purchase shares of common stock, (ii) as a
result of a reclassification of the Guarantor's capital stock or the exchange or
conversion of one class or series of the Guarantor's capital stock for another
class or series of the Guarantor's capital stock or (iii) the purchase of
fractional interests in shares of the Guarantor's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged (or make any guarantee payments with respect to the
foregoing), (b) not to make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities of the Company that
rank pari passu with or junior to the Convertible Debentures (except by
conversion into or exchange for shares of its capital stock), and
6
<PAGE> 9
(c) not to make any guarantee payments with respect to the foregoing (other than
pursuant to this Common Securities Guarantee).
SECTION 3.2. Ranking
(a) This Common Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
to all other liabilities of the Guarantor except any liabilities that may be
pari passu expressly by their terms, (ii) pari passu with the most senior
preferred stock issued from time to time by the Guarantor and with any guarantee
now or hereafter entered into by the Guarantor in respect of any preferred or
preference stock or preferred securities of any affiliate of the Guarantor and
(iii) senior to the Guarantor's common stock.
(b) The holders of any obligations of the Guarantor that
are senior in priority to the obligations under this Common Securities Guarantee
will be entitled to all of the rights inuring to the holders of "Senior
Indebtedness" under Article 12 of the Indenture, and the holders of the
Preferred Securities will be subject to all of the terms and conditions of such
Article 12 with respect to any claims or rights hereunder with the same effect
as though fully set forth herein.
7
<PAGE> 10
ARTICLE IV
TERMINATION
SECTION 4.1. Termination
This Common Securities Guarantee will terminate as to each
Holder upon (i) full payment of the Redemption Price of the Common
Securities;(ii) the distribution of the Guarantor's common stock to the Holders
in respect of the conversion of the Preferred Securities into the Guarantor's
common stock or the distribution of the Convertible Debentures (as defined in
the Trust Agreement) to the Holders of all of the Common Securities; or (iii)
full payment of the amounts payable in accordance with the Trust Agreement upon
liquidation of the Trust. Notwithstanding the foregoing, this Common Securities
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder must restore payment of any sums paid under the
Common Securities or under this Common Securities Guarantee.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Successors and Assigns
All guarantees and agreements contained in this Common
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Common Securities then outstanding.
SECTION 5.2. Amendments
Except with respect to any changes that do not materially
adversely affect the rights of Holders (in which case no vote will be required),
this Common Securities Guarantee may be amended only with the prior approval of
the Holders of at least a majority in liquidation amount of all the outstanding
Common Securities. The provisions of Section 11.2 of the Trust Agreement with
respect to meetings of Holders of the Securities apply to the giving of such
approval.
SECTION 5.3. Notices
All notices provided for in this Common Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, sent by facsimile or mailed by registered or certified mail, as
follows:
(a) if given to the Trust, in care of the Administrative
Trustees at the Trust's mailing address set forth below (or
8
<PAGE> 11
such other address as the Trust may give notice of to the Holders):
c/o Central Parking Corporation
2401 21st Avenue South, Suite 200,
Nashville, Tennessee 37212
Attention: Monroe J. Carell, Jr
James H. Bond
Andrew M. Paalborg
(b) if given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may
give notice of to the Holders):
c/o Central Parking Corporation
2401 21st Avenue South, Suite 200,
Nashville, Tennessee 37212
Attention: Andrew M. Paalborg
(c) if given to any Holder, at the address set forth on
the books and records of the Trust.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 5.4. Benefit
This Common Securities Guarantee is solely for the benefit of
the Holders and is not separately transferable from the Common Securities.
SECTION 5.5. Governing Law
THIS COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY SUCH LAWS WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICTS OF LAWS.
9
<PAGE> 12
THIS COMMON SECURITIES GUARANTEE AGREEMENT is executed as of
the day and year first above written.
Central Parking Corporation,
as Guarantor
By:
---------------------------
Name: Monroe J. Carell, Jr.
Title: Chief Executive Officer
and Chairman of the Board
<PAGE> 1
COMMON SECURITIES SUBSCRIPTION AGREEMENT
COMMON SECURITIES SUBSCRIPTION AGREEMENT, dated as of March
18, 1998 (this "Agreement"), between Central Parking Finance Trust, a statutory
business trust organized under the laws of the State of Delaware (the "Trust"),
and Central Parking Corporation, a Delaware corporation (the "Buyer"), relating
to the Trust's 5 1/4% Common Securities (liquidation amount $25 per common
security) representing undivided beneficial interests in the Trust (the "Common
Securities").
WHEREAS, the Buyer, as sponsor of the Trust, desires to
purchase from the Trust, and the Trust desires to sell to the Buyer, certain of
the Trust's securities.
NOW, THEREFORE, the parties hereto agree as follows:
1. The Buyer hereby subscribes for and offers to
purchase and the Trust hereby accepts such offer and agrees to issue and sell to
the Buyer:
(a) contemporaneous with the Closing Date (as defined in the Purchase
Agreement, dated March 18, 1998, among the Buyer, the Trust and each of
the underwriters named therein), 123,711 Common Securities with an
aggregate liquidation amount with respect to the assets of the Trust of
$3,092,775 in consideration of the payment on or before the date hereof
of $3,092,775 in immediately available funds;
(b) contemporaneous with the purchase of any Optional Preferred Securities
(as defined in the Purchase Agreement) pursuant to the exercise of the
over-allotment option granted by the Trust pursuant to the Purchase
Agreement, a number of additional Common Securities equal to 12,371, in
consideration of the payment of $25 per Common Security in immediately
available funds.
<PAGE> 2
2. The Trust represents and warrants that, upon
execution and delivery to the Buyer, the Common Securities will be duly
authorized, validly issued, fully paid and non-assessable and entitled to the
benefits and subject to the terms of the Amended and Restated Declaration of
Trust, dated as of March 18, 1998, between the Buyer, as sponsor, Chase
Manhattan Bank Delaware, as Delaware Trustee, Chase Bank of Texas, National
Association, as Property Trustee, and Monroe J. Carell, Jr., James H. Bond and
Andrew M. Paalborg, as Administrative Trustees.
3. This Agreement shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be governed
by and construed in accordance with the laws of said State, without regard to
conflicts of law principles thereof.
2
<PAGE> 3
IN WITNESS WHEREOF, each of the Trust and the Buyer has caused
this Agreement to be signed by its duly authorized officers as of the date first
above written.
CENTRAL PARKING FINANCE TRUST
By:
--------------------------------
Name: Monroe J. Carell, Jr.
Title: Administrative Trustee
By:
--------------------------------
Name: James H. Bond
Title: Administrative Trustee
By:
--------------------------------
Name: Andrew M. Paalborg
Title: Administrative Trustee
CENTRAL PARKING CORPORATION
By:
--------------------------------
Name: Monroe J. Carell, Jr.
Title: Chairman of the Board
and Chief Executive
Officer
3
