REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of September 21, 1998,
among (i) Central Parking Corporation, a Tennessee corporation (the
"Company"), (ii) Apollo Real Estate Investment Fund II, L.P., a Delaware
limited partnership (together with its Affiliates, "Apollo"), (iii) AEW
Partners, L.P., a Delaware limited partnership (together with its
Affiliates, "AEW"), and (iv) Monroe J. Carell, Jr., The Monroe Carell, Jr.
Foundation, Monroe Carell, Jr. 1995 Grantor Retained Annuity Trust, Monroe
Carell, Jr. 1994 Grantor Retained Annuity Trust, The Carell Children's
Trust, The 1996 Carell Grandchildren's Trust, The Carell Family
Grandchildren 1990 Trust, The Xxxxxxx Carell Xxxxx Foundation, The Xxxxx
Carell Xxxxxxx Foundation, The Xxxxx Carell Xxxxxxx Foundation, 1997 Carell
Xxxxxxxxx Xxxxx Trust, 1997 Xxx Xxxxx Xxxxxxx Trust, 1997 Xxxxx Xxxxxx
Xxxxxxx Trust, 1997 Xxxxxxx Carell Xxxxxxx Trust, 1997 Xxxxx Xxxxxxxx Xxxxx
Trust and 1997 Xxxxxx Xxxxxx Xxxxxxx Trust (together with their respective
Affiliates other than the Company, the "Carell Holders"). Apollo, AEW and
all other holders at the effective time of the Merger (as hereinafter
defined) of the shares of Common Stock, par value of $.01 per share (the
"Holdings Common Stock"), of Allright Holdings, Inc., a Delaware
corporation ("Holdings"), or of options and warrants to purchase shares of
Holdings Common Stock, are sometimes referred to collectively as the
"Allright Holders" and the Allright Holders and the Carell Holders are
sometimes referred to collectively as the "Holders."
W I T N E S S E T H
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of
the date hereof (the "Merger Agreement"), by and among the Company, Central
Merger Sub, Inc., a Delaware corporation ("Central Sub"), Holdings, AEW and
Apollo, shareholders of Holdings will receive from the Company shares of
the Company's Common Stock (as hereinafter defined) pursuant to the merger
of Holdings with and into Central Sub, with Holdings being the surviving
corporation (the "Merger"); and
WHEREAS, the parties hereto desire to set forth the rights of the
Holders and the obligations of the Company with respect to the registration
of the Registrable Securities (as hereinafter defined) pursuant to the
Securities Act (as hereinafter defined); and
WHEREAS, the execution and delivery of this Agreement by the
parties hereto is a condition to the willingness of each of Holdings,
Apollo and AEW to enter into the Merger Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements
of the Company, Central Sub and Holdings contained in the Merger Agreement
and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Merger
Agreement. For purposes of this Agreement the following terms shall have
the following meanings:
"Affiliate" has the meaning assigned to such term under Rule 405
of the Securities Act.
"Business Day" means any day other than (i) a Saturday or Sunday,
or (ii) a day on which banking institutions in the City of New York are
authorized or required by law or executive order to remain closed.
"Charitable Organization" means any corporation, community chest,
fund or foundation organized and operated exclusively for religious,
charitable, scientific, testing for public safety, literary or educational
purposes, or to xxxxxx national or international amateur sports competition
or for the prevention of cruelty to children or animals, no part of the net
earnings of which inures to the benefit of any private shareholder or
individual (including, without limitation, any family members of Monroe J.
Carell, Jr. and beneficiaries of the various trusts which are Carell
Holders), no substantial part of the activities of which is carrying on
propaganda, or otherwise attempting, to influence legislation, and which
does not participate in, or intervene in (including the publishing or
distributing of statements), any political campaign on behalf of (or in
opposition to) any candidate for public office.
"Common Stock" means the shares of common stock, par value $0.01
per share, of the Company.
"Convertible Securities" means any securities of the Company or
any Affiliates thereof which are convertible into, or exchangeable for,
shares of common stock or common stock equivalents (excluding options and
warrants which are issued to employees, officers and directors in the
ordinary course of business consistent with past practice), the terms of
which satisfy the following conditions: (a) the per share price for
converting such convertible securities into, or exchanging such convertible
securities for, shares of Common Stock must be at least 18% higher than the
market price per share of Common Stock on the day before the issuance of
such convertible securities, (b) such convertible securities must not be
convertible into shares of Common Stock at any time before the three year
anniversary of the issuance of such convertible securities, except with
respect to earlier conversions related to extraordinary transactions in
accordance with market practices, (c) such convertible securities must not,
by their terms, place any restrictions on the ability of the Company to
satisfy its obligations under this Agreement, or in any manner adversely
impact the ability of any of the Holders to exercise the rights granted to
them hereunder, and (d) the terms and provisions of such Convertible
Securities must be consistent with customary market practices.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations thereunder.
"Extra Underwriting End Date" means (i) in the event that the
Extra Underwriting is consummated, the date set forth in the underwriting
agreement for the Extra Underwriting as the first day after the closing of
the Extra Underwriting that the Company, Apollo, AEW and the Carell Holders
will be allowed to effect open market sales of shares of Common Stock
without the consent of the Underwriters' Representative, (ii) in the event
that the Extra Underwriting Notice is not given prior to the date one year
following the Shelf Registration Date, such date or (iii) in the event that
the Extra Underwriting Notice is given but the Extra Underwriting is
abandoned with the concurrence of Apollo, AEW and the Carell Holders, the
date of such abandonment.
"Initial Liquidity Date" means the earliest date on which each of
Apollo, AEW and the Carell Holders shall have received gross proceeds from
the sale of Registrable Securities following the date hereof at least equal
to their respecting Initial Underwriting Amounts.
"Initial Underwriting Amount" means (i) in the case of either
Apollo or AEW, $125 million (or such lesser amount, to the extent that (A)
other Allright Holders participate in an Underwritten Offering which closes
before the Initial Liquidity Date, or (B) AEW and Apollo elect to
distribute shares of Common Stock to Xxxxxxxx, Xxxxxx & Associates, Inc.
("CBA") before the Initial Liquidity Date (where such reduction shall be
based on the aggregate market value of the Registrable Securities
distributed to CBA by Apollo and AEW on the day prior to such transfer)),
(ii) in the case of the Carell Holders, $100 million, and (iii) in the case
of any other Holders, the product of (x) the amount of Registrable
Securities received by such Holder at the Closing multiplied by (y) a
fraction, the numerator of which is the amount of Registrable Securities
the Underwriters' Representative of the Initial Underwriting believes, at
the time the Initial Underwriting Notice is delivered to the Company, must
be sold to yield gross proceeds of $125 million to Apollo (or, in the event
that the Initial Underwriting Notice is not delivered to the Company by the
end of the Initial Underwriting Notice Period, the amount of Registrable
Securities that would be need to be sold, based on the Market Value per
share of Common Stock on the day before the last day of the Initial
Underwriting Notice Period, to yield gross proceeds of $125 million), and
the denominator of which is the amount of Registrable Securities received
by Apollo at the Closing.
"Xxxxxx Registration Rights" means the registration rights
provided for in the registration rights agreement, dated February 12, 1998,
by and among the Company, Xxxxx Xxxx and Xxxx Xxxxxxxx (the "Xxxxxx
Holders"), as in effect as of the date hereof, a complete and accurate copy
of which has been provided by the Company to Apollo and AEW.
"Market Value" means the average, rounded to the nearest cent
($0.01), of the closing price per share of Common Stock on the New York
Stock Exchange for the twenty (20) consecutive trading days ending on the
trading day immediately preceding the date in question.
"Maximum Number" when used in connection with an underwritten
offering, shall mean the number of shares of Common Stock that the
Underwriters' Representative has informed the Company may be included as
part of such offering without materially and adversely affecting the
success or pricing of such offering.
"Offering" means any Underwritten Offering, or any offering of
unregistered securities to a purchaser or purchasers for reoffering to
select investors in a transaction which is exempt from federal securities
laws.
"Person" shall mean any natural person, firm, individual,
corporation, partnership, limited liability company, joint venture,
business trust, association, trust, company or other organization or
entity, whether incorporated or unincorporated.
"Preferred Stock" means any shares of capital stock of the
Company or any Affiliate thereof which have preferential rights to
dividends or to amounts distributable upon liquidation of the Company.
"Prospectus" means the prospectus included in the 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 Registration Statement and by all other
amendments and supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such prospectus.
"Public" means all stockholders of the Company, as of a given
date, excluding the Carell Holders, executive officers of the Company,
members of the Board of Directors of the Company, and all other
stockholders of the Company who then beneficially own at least 5% of the
outstanding shares of Common Stock.
"Publication Date" means the date on which the Company initially
publishes financial results reflecting the first thirty days of combined
operations of the Company and Holdings after the consummation of the
Merger.
"Registrable Securities" means, collectively, (i) the shares of
Common Stock issued to the Allright Holders in connection with the Merger
or pursuant to options or warrants held by the Allright Holders (the
"Allright Shares"), (ii) any stock or other securities into which or for
which the Allright Shares may hereafter be changed, converted or exchanged,
(iii) any other securities issued or distributed in respect of the Allright
Shares by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, reorganization, merger,
consolidation or otherwise, and (iv) that number of shares of Common Stock
that, when ultimately disposed of by the Carell Holders in one or more
transactions after the date of this Agreement, will yield gross proceeds to
the Carell Holders of $250 million (excluding transfers by the Carell
Holders to any purchasers up to that amount of shares of Common Stock
received by the Carell Holders pursuant to the contribution of assets to
the Company, as required by the Transaction Support Agreement, dated as of
the date hereof, by and among Monroe J. Carell, Jr., the Company, Apollo
and AEW (the "Exempted Transfers")).
"Registration Expenses" means any and all expenses incident to
performance of or compliance by the Company with its registration
obligations under Section 3, including, without limitation, (i) all SEC and
securities exchange registration and filing fees, (ii) all fees and
expenses of complying with securities or blue sky laws (including fees and
disbursements of counsel for any underwriters in connection with blue sky
qualifications of the Registrable Securities), (iii) all printing,
messenger and delivery expenses, (iv) all fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities
exchange pursuant to Section 7(h), (v) the fees and disbursements of
counsel for the Company and of its independent public accountants, (vi) any
fees and disbursements of underwriters customarily paid by the issuers or
sellers of securities, and the reasonable fees and expenses of any special
experts retained in connection with the requested registration, and
(vii) the expenses incurred in connection with making "roadshow"
presentations and holding meetings with potential investors to facilitate
the distribution and sale of Registrable Securities.
"Registration Statement" means any registration statement of the
Company which covers Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to
such registration statements including post-effective amendments, and all
exhibits and all material incorporated by reference in such Registration
Statement.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and the rules and regulations thereunder.
"SEC" means the Securities and Exchange Commission.
"Shelf Registration Date" means (i) in the event that the Initial
Underwriting is consummated, the date set forth in the underwriting
agreement for the Initial Underwriting as the first day after the closing
of the Initial Underwriting that the Company, Apollo, AEW and the Carell
Holders will be allowed to effect open market sales of shares of Common
Stock without the consent of the Underwriters' Representative, (ii) in the
event that the Initial Underwriting Notice is not given prior to the date
nine months following the Publication Date, such date or (iii) in the event
that the Initial Underwriting Notice is given but the Initial Underwriting
is abandoned with the concurrence of Apollo, AEW and the Carell Holders,
the date of such abandonment.
"TIPS Registration Statement" means the shelf registration
statement filed on Form S-3 on June 1, 1998 (registration statements no.
333-52497 and 333-52497-01) as such registration statements may be amended
or supplemented from time to time.
"Total Market Capitalization" means the aggregate market value of
all outstanding equity securities, Preferred Stock and Convertible
Securities of the Company, and the book value of all outstanding loan
obligations and debt instruments of the Company (excluding any Convertible
Securities).
"Underwriting Amount" means that amount of shares of Common
Stock, which, when sold in an Underwritten Offering, would yield gross
proceeds of a given amount of money, as reasonably estimated by the owner
of such shares of Common Stock and the Underwriters' Representative of such
Underwritten Offering at the time such owner informs the Company of its
desire to initiate, or participate in, an Underwritten Offering.
"Underwriters' Representative" when used in connection with an
Underwritten Offering, shall mean the managing underwriter of such
offering, or, in the case of a co-managed underwriting, the managing
underwriter designated as the Underwriters' Representative by the co-
managers.
"Underwritten Offering" shall mean a registration in which
securities of the Company are sold to one or more underwriters for
reoffering to the public.
2. Securities Subject to This Agreement. The securities entitled to
the benefits of this Agreement are the Registrable Securities. For the
purposes of this Agreement, Registrable Securities will cease to be
Registrable Securities when (i) a Registration Statement covering such
Registrable Securities has been declared effective under the Securities Act
and they have been disposed of pursuant to such effective Registration
Statement, (ii) such Registrable Securities are distributed to the public
pursuant to Rule 144 and/or Rule 145 (or any similar provision then in
force) under the Securities Act, (iii) such Registrable Securities shall
have been otherwise transferred, new certificates for such Registrable
Securities not bearing a legend restricting further transfer shall have
been delivered by the Company and subsequent disposition of such
Registrable Securities shall not require registration or qualification of
such Registrable Securities under the Securities Act or any state
securities or blue sky law then in force, or (iv) such Registrable
Securities shall have ceased to be outstanding.
3. Registration Under the Securities Act.
(a) Initial Underwriting. (i) At any time after the Publication
Date and before the date nine months following the Publication Date (the
"Initial Underwriting Notice Period"), the Carell Holders, or Allright
Holders owning at least 80% of the Registrable Securities then owned by all
the Allright Holders, shall have the right to demand, by written notice
(the "Initial Underwriting Notice"), the Company to use its reasonable best
efforts to register under the Securities Act up to the Initial Underwriting
Amount for such Holder or Holders of Registrable Securities for resale by
such Holder or Holders in an Underwritten Offering (the "Initial
Underwriting"). In the event that one or more Holders deliver the Initial
Underwriting Notice, the Company shall then promptly mail written notice
thereof (a "Company Notice") to all other Holders, and then each such
Holder may then elect to participate in the Initial Underwriting by
delivering to the Company, within fifteen days after such Company Notice is
given, a written notice specifying the number of Registrable Securities
such Holders wish to have registered for resale in the Initial Underwriting
up to but not exceeding such Holder's Initial Underwriting Amount. All
rights to demand the Initial Underwriting shall expire immediately after an
Initial Underwriting Notice is properly delivered to the Company, but shall
be subject to the reinstatement provisions contained in Section 3(g).
(ii) The Registrable Securities to be sold in the Initial
Underwriting (including pursuant to any underwriters' overallotment option)
shall be allocated among the various Holders participating in the Initial
Underwriting up to but not exceeding their respective Initial Underwriting
Amounts in the following order of priority: (A) subject to pro rata
reduction to the extent that any allocations are made pursuant to clause
(C), each of Apollo and AEW shall be entitled to receive (1) 50% of the
first $100 million in gross proceeds (or, if only one of them is
participating, 100% of such gross proceeds), (2) 0% of the next $50 million
in gross proceeds, (3) 33 1/3% of the next $150 million in gross proceeds
(or, if only one of them is participating, 66 2/3% of such gross proceeds),
and (4) 50% of the next $50 million in gross proceeds (or, if only one of
them is participating, 100% of such gross proceeds); (B) the Carell Holders
shall be entitled to receive (1) 0% of the first $100 million in gross
proceeds, (2) 100% of the next $50 million in gross proceeds, (3) 33 1/3%
of the next $150 million in gross proceeds, and (4) 0% of the next $50
million in gross proceeds; and (C) any Allright Holders other than Apollo
or AEW shall be entitled to receive a percentage of the gross proceeds
allocated to Apollo and AEW hereunder equal to the percentage represented
by the number of Registrable Securities then held by such Allright Holder
divided by the number of Registrable Securities then held by all Allright
Holders participating in the Initial Underwriting. In the event that there
shall be gross proceeds in excess of $350 million and the Company shall
determine not to allocate such excess to shares of Common Stock to be sold
by the Company, the Holders shall be allocated additional Registrable
Securities to be sold in proportion to their holding of all remaining
Registrable Securities.
(b) Shelf Registration. (i) The Company shall use its
reasonable best efforts to promptly process, file and cause to become
effective a Registration Statement on Form S-3 (the "Shelf") for an
offering to be made on a delayed or continuous basis pursuant to Rule 415
under the Securities Act (or any similar rule that may be adopted by the
SEC) and permitting sales in ordinary course brokerage or dealer
transactions not involving an Underwritten Offering, the initial filing to
be made not later than 30 days before the Shelf Registration Date in the
event that the Initial Underwriting is consummated or 30 days after the
Shelf Registration Date in the event that the Initial Underwriting Notice
is not given or the Initial Underwriting is abandoned. Each Allright
Holder which owns, on the date of the initial filing of the Shelf (the
"Initial Filing Date"), Registrable Securities (each such Holder, an
"Eligible Holder") shall have the right to resell such Registrable
Securities under the Shelf until the date that such Eligible Holder sells
all of such Registrable Securities, whether or not under the Shelf (such
Eligible Holder's "Termination Date"). The Carell Holders shall have the
right to resell that amount of Registrable Securities under the Shelf which
has an aggregate Market Value, on the Initial Filing Date, of (a) $150
million, plus (b) the Initial Underwriting Amount of the Carell Holders,
less (c) the gross proceeds received by the Carell Holders in all sales of
Registrable Securities before the Initial Filing Date (excluding gross
proceeds received in the Exempted Transfers). The Carell Holders shall
lose their right to sell under the Shelf once they have sold, in one or
more transactions occurring after the Initial Filing Date, whether in the
Initial Underwriting, the Extra Underwriting, under the Shelf or otherwise,
at least that amount of shares of Common Stock equal to the amount of
Registrable Securities of the Carell Holders registered under the Shelf
pursuant to this Section 3(b)(i) (the Carell Holders' "Termination Date").
The Company agrees to use its reasonable best efforts to keep the Shelf
continuously effective and usable for resale of Registrable Securities
until all Eligible Holders lose their rights to resell Registrable
Securities under the Shelf.
(ii) The Company agrees to include within the Method of
Distribution for the Shelf the possible distribution by the Allright
Holders to their respective investors of the Registrable Securities held by
them; provided, that nothing herein shall restrict an Allright Holder from
distributing Registrable Securities to its investors under the Shelf before
it receives gross proceeds of at least its Initial Underwriting Amount, or
sells an amount of Registrable Securities equal to at least its Initial
Underwriting Amount. No Allright Holder may, however, transfer to its
investors any registration rights granted hereunder when distributing
Registrable Securities to such investors, unless the Company has failed to
cause the Shelf to become effective within 45 days after the Shelf
Registration Date.
(iii) Each Allright Holder agrees that, in the event that it
shall have received gross proceeds of at least its Initial Underwriting
Amount, or sold that amount of Registrable Securities equal to at least its
Initial Underwriting Amount, with respect to one or more sales of
Registrable Securities (whether in the Initial Underwriting, the Extra
Underwriting (as defined in Section 3(c)), resales under the Shelf or
otherwise), it shall be restricted from reselling Registrable Securities
under the Shelf until the Carell Holders shall have received gross proceeds
of at least $100 million in one or more sales of Registrable Securities
(whether in the Initial Underwriting, the Extra Underwriting, resales under
the Shelf or otherwise) after the date of this Agreement. The Carell
Holders agree that, in the event that they shall have received gross
proceeds of at least $100 million with respect to one or more sales of
Registrable Securities (whether in the Initial Underwriting, the Extra
Underwriting, resales under the Shelf or otherwise), they shall be
restricted from reselling Registrable Securities under the Shelf until each
of Apollo and AEW shall have received gross proceeds of at least its
Initial Underwriting Amount in one or more sales of Registrable Securities
(whether in the Initial Underwriting, the Extra Underwriting, resales under
the Shelf or otherwise) after the Closing. Each of Apollo, AEW and the
Carell Holders agrees to promptly notify the Company and each other in
writing at such time that it has received sufficient gross proceeds for it
to become restricted from resales pursuant to this Section 3(b)(iii).
Notwithstanding the foregoing, nothing herein shall restrict the ability of
any Holder to distribute Registrable Securities to its investors.
(iv) In the event that one or more Holders exercises a Demand
Right (as defined in Section 3(c)), then each Eligible Holder (including
the Holder or Holders exercising such Demand Right and regardless of
whether or not such Eligible Holder elects to participate in the Extra
Underwriting related to such Company Notice) may not sell any Registrable
Securities under the Shelf at any time after 30 days after receiving such
Company Notice and before the Extra Underwriting End Date; provided, that
nothing herein shall limit the ability of an Allright Holder to distribute
Registrable Securities to its investors.
(v) The Company shall have the right, at any time after the
Allright Holders, collectively, own less than 7% of all the Registrable
Securities received by the Allright Holders in the Merger, to terminate the
Shelf and promptly process and file, and use its reasonable best efforts to
cause to become effective, a Registration Statement on Form S-3 (the
"Second Shelf") for an offering to be made on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act (or any similar rule that may
be adopted by the SEC) and permitting sales in ordinary course brokerage or
dealer transactions not involving an Underwritten Offering. The Company
must register for resale under the Second Shelf all Registrable Securities
that were registered for resale under the Shelf at the time the Shelf is
terminated, but may also register for sale under the Second Shelf all
shares of Common Stock, and any other securities of the Company, that the
Company desires to register for resale at such time. The Company shall
cause the Second Shelf to remain effective at least up to the date until
which the Company would, under the terms of this Agreement, be required to
maintain the effectiveness of the Shelf, if otherwise not terminated
pursuant to this Section 3(b)(v). The Holders shall not have any
restrictions on their ability to resell Registrable Securities under the
Second Shelf which are greater than the restrictions on their ability to
resell Registrable Securities under the Shelf.
(c) Extra Underwriting. (i) In the event that, as of the date
of the giving of the Extra Underwriting Notice referred to below, either
Apollo or AEW shall have failed to receive gross proceeds of at least its
Initial Underwriting Amount from selling Registrable Securities or the
Carell Holders shall have failed to receive gross proceeds of at least $100
million from selling Registrable Securities, each of (A) AEW and/or Apollo,
if AEW and/or Apollo shall have failed to receive such gross proceeds,
together with all other Allright Holders who have failed to sell that
amount of Registrable Securities equal to at least their respective Initial
Underwriting Amounts, by agreement of Allright Holders owning at least 60%
of the Registrable Securities then owned by all the Allright Holders, (B)
and the Carell Holders, if they have failed to receive gross proceeds of at
least their Initial Underwriting Amount, shall have the right, at any time
commencing on the Shelf Registration Date and ending on the twelve month
anniversary of the Shelf Registration Date (the "Extra Underwriting Notice
Period"), to demand (a "Demand Right"), by written notice (an "Extra
Underwriting Notice"), the Company to use its reasonable best efforts to
register under the Securities Act up to the Initial Underwriting Amount of
such Holder or Holders, less the amount of gross proceeds received by, or
the amount of Registrable Securities sold by, such Holder in the Initial
Underwriting, if any, and in any other sales of Registrable Securities
after the Shelf Registration Date, for resale by such Holder or Holders in
an Underwritten Offering (the "Extra Underwriting"). In the event that
one or more of such Holders deliver the Extra Underwriting Notice, the
Company shall then promptly mail a Company Notice to all other Holders who
shall have failed to receive gross proceeds of at least their respective
Initial Underwriting Amounts, or to sell that amount of Registrable
Securities equal to at least their respective Initial Underwriting Amounts,
and then each such other Holder may then elect to participate in the Extra
Underwriting by delivering to the Company, within fifteen days after such
Company Notice is given, a written notice specifying the number of
Registrable Securities such Holders wish to have registered for resale in
the Initial Underwriting up to but not exceeding such Holder's Initial
Underwriting Amount, less the amount of gross proceeds received by such
Holder, or that amount of Registrable Securities sold by such Holder, in
the Initial Underwriting, if any, and in any other sales of Registrable
Securities after the date hereof. The Company shall use its reasonable
best efforts to promptly (but in no event later than fifteen Business Days
after receipt of the Extra Period Demand Notice) supplement or amend the
Shelf, including the Method of Distribution or similar section therein, or,
in the event that the Shelf shall not have been filed, to promptly process,
file and cause to become effective a Registration Statement on Form S-3, in
order to cover registration of the resale of all of the Registrable
Securities properly requested to be registered pursuant to this Section
3(c)(i) by the Holders. All Demand Rights shall expire immediately after
an Extra Underwriting Notice is properly delivered to the Company, but
shall be subject to the reinstatement provisions contained in Section 3(g).
(ii) The Registrable Securities to be sold in the Extra
Underwriting (including pursuant to any underwriters' overallotment option)
shall be allocated among the various Holders participating in the Extra
Underwriting up to but not exceeding their respective Initial Underwriting
Amounts in the same order of priority set forth in Section 3(a)(ii), except
that for purposes of this Section 3(c)(ii) determinations of the gross
proceeds received by any Holder shall be deemed to include gross proceeds
received from the sale of any Registrable Securities following the date
hereof and through and including the Extra Underwriting, and determinations
of the amount of Registrable Securities sold by any Holder shall be deemed
to include any sales of Registrable Securities following the date hereof
and through and including the Extra Underwriting, but shall not be deemed
to include the distribution of Registrable Securities by a Holder to its
investors.
(d) Incidental Registration. If at any time the Company
proposes to register any of its Common Stock under the Securities Act after
the date hereof (other than in connection with any acquisition or business
combination transaction and other than in connection with stock options and
employee benefit plans and compensation) either in connection with a
primary offering for cash for the account of the Company, a secondary
offering or a combined primary and secondary offering, the Company will,
each time it intends to effect such a registration, give a Company Notice
to all Holders whose Termination Date shall not have occurred at least 15
Business Days prior to the initial filing of a registration statement with
the SEC pertaining thereto, informing such Holders of its intent to file
such registration statement and of the Holders' right to request the
registration of the Registrable Securities held by the Holders. Upon the
written request of one or more of the Holders made within 10 business days
after any such Company Notice is given (which request shall specify the
Registrable Securities intended to be disposed of by each such Holder, and,
unless the applicable registration is intended to effect a primary offering
of Common Stock for cash for the account of the Company, the intended
method of distribution thereof), the Company will use its reasonable best
efforts to effect the registration under the Securities Act of all
Registrable Securities, which the Company has been so requested to register
by one or more Holders to the extent required to permit the disposition (in
accordance with the intended methods of distribution thereof or, in the
case of a registration which is intended to effect a primary offering for
cash for the account of the Company, in accordance with the Company's
intended method of distribution) of the Registrable Securities so requested
to be registered, including, if necessary, by filing with the SEC a post-
effective amendment or a supplement to the registration statement filed by
the Company or the related prospectus or any document incorporated therein
by reference or by filing any other required document or otherwise
supplementing or amending the registration statement filed by the Company,
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such registration statement or by
the Securities Act, any state securities or blue sky laws, or any rules and
regulations thereunder; provided, however, that if, at any time after
giving written notice of its intention to register any securities and prior
to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
register or to delay such registration of the securities, the Company shall
give written notice of such determination to each Holder of Registrable
Securities and, thereupon, (A) in the case of a determination not to
register, the Company shall be relieved of its obligation to register any
Registrable Securities in connection with such registration, and (B) in the
case of a determination to delay such registration, the Company shall be
permitted to delay registration of any Registrable Securities requested to
be included in such registration statement for the same period as the delay
in registering such other securities.
(e) Underwriter Limitations. (i) If, in connection with an
Underwritten Offering other than the Initial Underwriting or the Extra
Underwriting, the Underwriters' Representative of the offering registered
thereon shall inform the Company in writing that in its opinion there is a
Maximum Number of shares of Common Stock that may be successfully included
therein; then (a) in the event such Registration Statement relates to an
offering initiated by the Company of Common Stock being offered for the
account of the Company, the Company may include in such registration the
number of shares it proposes to offer and, if such number is less than the
Maximum Number, then the number of shares of Common Stock requested to be
included in such registration by any Person other than the Company may be
reduced, pro rata in proportion to the number of shares of Common Stock
owned by such Persons requesting to participate in such offering, to the
extent necessary to reduce the respective total number of shares of Common
Stock requested to be included in such offering to the Maximum Number, and
(b) in the event such a Registration Statement is initiated by any Person
other than the Company or a Holder, such Person shall have the right, in
its sole discretion, to include in such registration the number of shares
of Common Stock it proposes to offer and, if such number is less than the
Maximum Number, then the number of shares of Common Stock requested to be
included by any other Person may be reduced pro rata in proportion to the
number of shares of Common Stock owned by such Persons, to the extent
necessary to reduce the respective total number of shares of Common Stock
requested to be included in such offering to the Maximum Number.
(ii) Notwithstanding Section 3(e)(i), in the event that the
Company decides to conduct an Underwritten Offering other than the Initial
Underwriting and the Extra Underwriting, and at such time any of Apollo,
AEW or the Carell Holders shall have failed to receive gross proceeds from
the sale of Registrable Securities since the date hereof at least equal to
at least their respective Initial Underwriting Amounts, and if the
Underwriters' Representative of such Underwritten Offering shall inform the
Company in writing that in its opinion there is a Maximum Number of shares
of Common Stock that may be successfully included therein beyond the number
of shares to be sold by the Company, then each of the above Holders who
shall have so failed to receive such gross proceeds, and all other Holders
who shall have failed to sell that amount of Registrable Securities equal
to their respective Initial Underwriting Amounts, may include in such
registration that number of Registrable Securities which, in the opinion of
the Underwriters' Representative, when sold would yield gross proceeds
sufficient to bring each such Holder's gross proceeds from the sale of
Registrable Securities after the date hereof to such Holder's Initial
Underwriting Amount, or would allow each such Holder to sell an amount of
Registrable Securities which would bring each such Holder's amount of
Registrable Securities sold to its Initial Underwriting Amount. To the
extent that the Maximum Number is insufficient to accomplish the foregoing,
the Registrable Securities to be sold in such Underwritten Offering
(including pursuant to any underwriters' overallotment option) shall be
allocated among the various Holders participating in such Underwritten
Offering up to but not exceeding their respective Initial Underwriting
Amounts in the same order of priority set forth in Section 3(a)(ii).
(iii) Notwithstanding the foregoing, any reduction of the shares
of Common Stock requested by a Person to be included in any Registration
Statement pursuant to this Section 3(e) shall be limited to the extent such
reduction would place the Company in breach of any presently existing
contractual obligations that it might have.
(f) Company Limitations. (i) The Company hereby agrees that,
until the earlier to occur of the Extra Underwriting End Date and the
Initial Liquidity Date, it will not (i) sell any shares of Common Stock
other than (A) pursuant to the Merger, (B) to the Carell Holders, to the
extent the issuance of such shares of Common Stock is required by Section
5.14 of the Merger Agreement, (C) pursuant to mergers, acquisitions and
purchases involving the Company and/or its Affiliates whereby the Company
issues shares of Common Stock which are not registered under the Securities
Act and which either (1) have an aggregate value of no more than $10
million (where the value of a share of Common Stock issued pursuant to a
given transaction is determined based on the closing price per share of
Common Stock on the trading day immediately preceding the date on which
such transaction occurred), or (2) are not transferable by the holders
thereof for at least two years from the respective dates of issuance, or
(D) upon exercise of options or conversion of other securities outstanding
as of the date of this Agreement, or options or other securities issued to
employees, officers and directors after the date of this Agreement in the
ordinary course of business consistent with past practice, with or without
registration under the Securities Act, without first providing for the sale
of Registrable Securities as contemplated by Section 3(a)(ii), (ii) permit
any Underwritten Offering, not for the account of the Company, involving
the sale of shares of Common Stock other than the Initial Underwriting, the
Extra Underwriting, the TIPS Registration Statement and any Underwritten
Offering required by the Xxxxxx Registration Rights, (iii) grant to any
Holder, or any Person included within the Carell Holders, registration
rights not provided for in this Agreement as of the date hereof, or waive
any conditions herein with respect to any Holder, or any Person included
within the Carell Holders, without waiving such conditions with respect to
all other Holders, (iv) otherwise facilitate a sale by any Person with the
Holders of shares of Common Stock, (v) grant registration rights to any
Person which would permit such Person to participate in the Initial
Underwriting, the Shelf or the Extra Underwriting, or to have such Person's
shares of Common Stock registered for resale, prior to the Initial
Liquidity Date, or (vi) grant to any Person registration rights that
contemplate Underwritten Offerings which preclude the exercise of the
customary "piggyback" rights granted to certain Holders in Section 3(d).
(ii) Furthermore, during the period of time beginning on the
date hereof and ending on the Shelf Registration Date, or, in the event
that the Underwriters' Representative of the Initial Underwriting provides
the Company with its written consent to a plan by the Company to conduct an
Offering of Preferred Stock or Convertible Securities during the Lockout
Period (as hereinafter defined) related to the Initial Underwriting, ending
on the closing of the Initial Underwriting, the Company may not sell any
shares of Preferred Stock or Convertible Securities, and during the period
of time beginning on the day after the Shelf Registration Date and ending
on the earlier to occur of the Extra Underwriting End Date and the Initial
Liquidity Date, the Company may not sell shares of Preferred Stock and/or
Convertible Securities if, after consummation of such sale, the aggregate
market value of the Preferred Stock and/or Convertible Securities
outstanding (as calculated on the day such transaction is completed) is
greater than the lesser of (a) 20% of the Company's Total Market
Capitalization (as calculated on the day such transaction is completed),
and (b) 50% of the market value of the outstanding shares of Common Stock
held by the Public on the day such transaction is completed. The Company
hereby agrees that in the event that it elects to conduct an Offering of
Preferred Stock or Convertible Securities, it will promptly mail a Company
Notice to all Holders who shall have then failed to receive gross proceeds
of at least their respective Initial Underwriting Amounts, or to sell that
amount of Registrable Securities equal to at least their respective Initial
Underwriting Amounts. Each such Holder may then elect to participate in
such Offering by delivering to the Company, within fifteen days after such
Company Notice is given, a written notice specifying the number of
Registrable Securities such Holder wishes to have sold in such Offering up
to but not exceeding such Holder's Initial Underwriting Amount, less the
amount of gross proceeds received by such Holder, or that amount of
Registrable Securities sold by such Holder, in the Initial Underwriting, if
any, and in any other sales of Registrable Securities after the date
hereof. In the event that one or more Holders elects to participate in an
Offering, the Company hereby agrees that it will include the offering of
Registrable Securities by such Holder or Holders in any "roadshow"
marketing efforts conducted by the Company in connection with such
Offering. In the event that a Holder sells Registrable Securities in an
Offering, regardless of whether or not such Offering is covered by a
registration statement filed by the Company, such Holder shall be subject
to the provisions of Section 6 of this Agreement, to the extent that the
Underwriters' Representative, or, in the event an Offering is not conducted
on a "firm commitment" underwritten basis, the substantial equivalent of an
Underwriters' Representative (the "Lead Purchaser"), asks participating
sellers to refrain from selling shares of Common Stock during a Lockout
Period (as hereinafter defined). No Holder, however, shall be obligated to
refrain from selling shares of Common Stock during a Lockout Period
relating to an Offering of Convertible Securities or Preferred Stock if
such Holder did not participate in such Offering.
(iii) In the event that Holders participate in an Offering of
Convertible Securities or Preferred Stock, then the Extra Underwriting
Notice Period shall be deemed not to continue to run during that period of
time beginning on the first date that a Holder or Holders notifies the
Company of its or their desire to participate in such Offering, and ending
on the date that the Underwriters' Representative or the Lead Purchaser of
such Offering selects as the first day that the participating sellers may
sell shares of Common Stock after the closing of such Offering, or, in the
event that such Offering is not consummated, on the date such Offering is
abandoned (an "Offering End Date"). Such extension of the Extra
Underwriting Notice Period shall only be deemed to occur, however, in the
event that an Offering End Date occurs before the Initial Liquidity Date.
For purposes of this Agreement, participation in an Offering of Convertible
Securities or Preferred Stock by one or more Holders shall not be deemed to
be an exercise of a Demand Right or a right to demand the Initial
Underwriting.
(g) Pricing Determinations. (i) The Carell Holders and (ii)
representatives of the Allright Holders electing to participate in the
Initial Underwriting and/or the Extra Underwriting, such representatives to
be selected by Allright Holders owning a majority of the Registrable
Securities being offered by the Allright Holders for resale in such
Underwritten Offering, shall mutually determine the offering price per
share and underwriting discounts that shall apply in the Initial
Underwriting and the Extra Underwriting, subject to the right of (i) any
such Holder to withdraw its Registrable Securities from such Underwritten
Offering should it be dissatisfied with the proposed offering price per
share or underwriting discount, and (ii) any non-withdrawing Holders to
include additional Registrable Securities in such Underwritten Offering to
replace shares withdrawn by another Holder. In the event that the Company
refuses to execute the underwriting agreement related to the Initial
Underwriting or the Extra Underwriting, and subsequently the Initial
Underwriting or the Extra Underwriting, as the case may be, is abandoned,
then all rights to demand the Initial Underwriting or the Extra
Underwriting, as the case may be, shall be restored, and the Initial
Underwriting Notice Period or the Extra Underwriting Notice Period, as the
case may be, shall be reinstated for that amount of days equal to the
difference between (x) the amount of days comprising such period, less (y)
the amount of days that lapsed in such period before the Initial
Underwriting Notice or the Extra Underwriting Notice, as the case may be,
was delivered to the Company.
(h) Xxxxxx Registration Rights. The registration rights granted
hereunder shall be subordinate to the Xxxxxx Registration Rights; provided,
that, in the event that the Xxxxxx Holders exercise a "demand" Xxxxxx
Registration Right during the Extra Underwriting Notice Period and before
the Extra Underwriting Notice is properly delivered to the Company, or
during the Initial Underwriting Notice Period and before the Company
receives a demand for the Initial Underwriting, then the Extra Underwriting
Notice Period or the Initial Underwriting Notice Period, as the case may
be, shall be deemed not to continue to run during that period of time
beginning on the date a "demand" Xxxxxx Registration Right is exercised and
ending on the date that the Underwriters' Representative of the
Underwritten Offering related to such exercise selects as the first day
that the Company and the Xxxxxx Holders may sell shares of Common Stock
after the closing of such Underwritten Offering, or, in the event that such
Underwritten Offering is not consummated, on the date such Underwritten
Offering is abandoned (a "Xxxxxx Offering End Date"). Such extension of
the Extra Underwriting Notice Period or the Initial Underwriting Notice
Period shall only be deemed to occur, however, in the event that a Xxxxxx
Offering End Date occurs before the Initial Liquidity Date.
(i) Sales of Registrable Securities. For purposes of this
Agreement, the following transfers of Registrable Securities shall not be
deemed to be "sales" of Registrable Securities: (i) the transfers of
shares among Persons comprising an individual Holder, (ii) pledges of
shares permitted under Section 11(d), (iii) transfers of shares by Apollo
and AEW to CBA, (iv) the Exempted Transfers, (v) donations of shares by the
Holders which are made to Charitable Organizations, and (vi) any
distribution of shares by an Allright Holder to its investors.
4. Blackout Period. The Company shall be entitled to elect that a
Registration Statement not be usable, for a reasonable period of time, but
not in excess of 30 days, with respect to a Registration Statement relating
to the Initial Underwriting, or 90 days, with respect to a Registration
Statement related to any other sale of Registrable Securities (a "Blackout
Period"), if the Company determines in good faith that the registration and
distribution of Registrable Securities (or the use of the Registration
Statement or related Prospectus) would interfere with any pending material
financing, acquisition, corporate reorganization or any other material
corporate development involving the Company or any of its subsidiaries or
would require premature disclosure thereof and promptly gives the Holders
of Registrable Securities written notice of such determination, and if
requested by Holders, the Company will promptly deliver to it or them a
general statement of the reasons for such postponement or restriction on
use and an approximation of the anticipated delay; provided, however, that
the aggregate number of days included in all Blackout Periods, when taken
together with any Lockout Periods and Suspension Periods, during any
consecutive 12 months after the Publication Date shall not exceed 180 days
(or such longer period of time, to the extent that the Underwriters'
Representative of the Initial Underwriting requests a Lockout Period for
the Company and the Holders of longer than 90 days after the Initial
Underwriting).
5. Selection of Underwriters. Subject to the right of Central, the
Carell Holders and representatives of the Allright Holders electing to
participate in the Initial Underwriting and/or the Extra Underwriting, such
representatives to be selected by Allright Holders owning a majority of the
Registrable Securities being offered for resale by the Allright Holders in
such Underwritten Offering, to jointly determine otherwise, (i) Bear
Xxxxxxx & Co. Inc. shall be the lead-managing underwriter of the Initial
Underwriting and the Extra Underwriting, shall manage the "book" related to
such Underwritten Offerings, and shall be the Underwriters' Representative
of such Underwritten Offerings and (ii) NationsBanc Xxxxxxxxxx Securities
LLC and X.X. Xxxxxxxx & Co. shall each be a co-managing underwriter with
respect to such Underwritten Offerings.
6. Holdback Agreement.
(a) If so requested by the Underwriters' Representative in
connection with an offering of shares of Common Stock covered by a
registration statement filed by the Company, the Holders participating in
such Underwritten Offering, and all other Holders who are Affiliates of
Central at the time of such Underwritten Offering, shall agree not to
effect any sale or distribution of the Registrable Securities other than
pursuant to such Underwritten Offering, including a sale pursuant to Rule
144, without the prior written consent of the Underwriters' Representative
(which if given to any such Holder shall be deemed to be given to all such
Holders), during the 7-day period prior to, and during the 90-day period
beginning on, the date such registration statement or amendment to such
registration statement is declared effective under the Securities Act by
the SEC or, with respect to the Initial Underwriting, for a longer period
of time if so requested by the Underwriters' Representative of the Initial
Underwriting (any such period, a "Lockout Period"); provided that the
Holders are timely notified of such effective date in writing by the
Company or the Underwriters' Representative. The Holders shall not be
subject to Lockout Periods for longer than 97 days (or such longer period
of time, to the extent that the Underwriters' Representative of the Initial
Underwriting requests a Lockout Period for the Company and the Holders of
longer than 90 days after the Initial Underwriting) during any 12-month
period and shall not be subject to Lockout Periods, when taken together
with any Blackout Periods and Suspension Periods, during any consecutive 12
months after the Publication Date in excess of 180 days (or such longer
period of time, to the extent that the Underwriters' Representative of the
Initial Underwriting requests a Lockout Period for the Company and the
Holders of longer than 90 days after the Initial Underwriting). A Holder
shall no longer be subject to such restrictions following such Holder's
Termination Date.
(b) If so requested by the Underwriters' Representative in
connection with an Underwritten Offering of any Registrable Securities, the
Company shall agree not to effect any sale or distribution of shares of
Common Stock without the prior written consent of the Underwriters'
Representative (other than in connection with any acquisition or business
combination transaction and other than in connection with stock options and
employee benefit plans and compensation) during the 7-day period prior to,
and during the 90-day period beginning on, the date the registration
statement or amendment to a registration statement relating to such
Underwritten Offering is declared effective under the Securities Act by the
SEC or, with respect to the Initial Underwriting, for a longer period of
time if so requested by the Underwriters' Representative of Initial
Underwriting, and shall use its reasonable best efforts to obtain and
enforce similar agreements from any other Persons if requested by the
Underwriters' Representative.
(c) Notwithstanding anything else in this Section 6 to the
contrary, no Holder shall be precluded from distributing to its investors
the Registrable Securities as set forth in Section 3(b)(ii).
7. Registration Procedures. If and whenever the Company is required
to use its reasonable best efforts to effect or cause the registration of
any Registrable Securities under the Securities Act as provided in this
Agreement and the Merger Agreement, the Company will as expeditiously as
possible and without limiting any time period set forth elsewhere in this
Agreement:
(a) Subject to the requirements to file the Registration
Statement on Form S-4 pursuant to the Merger Agreement, prepare and file
with the SEC a Registration Statement with respect to such Registrable
Securities on a form for which the Company then qualifies or which counsel
for the Company shall deem appropriate, and which form shall be available
for the sale of the Registrable Securities in accordance with the intended
methods of distribution thereof, and use its reasonable best efforts to
cause such Registration Statement to become effective as promptly as
practicable after filing and to keep such Registration Statements effective
as provided in Section 3; provided that, a reasonable time before filing a
Registration Statement or Prospectus or any amendments or supplements
thereto (other than reports required to be filed by it under the Exchange
Act and the rules and regulations adopted by the SEC thereunder), the
Company will furnish to the Holders of Registrable Securities covered by
such Registration Statement and their counsel for review and comment copies
of all documents proposed to be filed;
(b) prepare and file with the SEC amendments and post-effective
amendments to each such Registration Statement and such amendments and
supplements to the Prospectus used in connection therewith as may be
necessary to maintain the effectiveness of such registration or as may be
required by the rules, regulations or instructions applicable to the
registration form utilized by the Company or by the Securities Act for
shelf registration or otherwise necessary to keep such Registration
Statement effective for the applicable period and cause the Prospectus as
so supplemented to be filed pursuant to Rule 424 under the Securities Act,
and to otherwise comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement until such time as all of such securities have been disposed of
in accordance with the intended methods of disposition set forth in such
Registration Statement and Prospectus;
(c) furnish to each Holder of such Registrable Securities such
number of copies of such Registration Statement and of each amendment and
post-effective amendment thereto (in each case including all exhibits), the
Prospectus and Prospectus supplement, as applicable, and such other
documents as such Holder may reasonably request in order to facilitate the
disposition of the Registrable Securities by such Holder (the Company
hereby consenting to the use (subject to the limitations set forth in the
last paragraph of this Section 7) of the Prospectus or any amendment or
supplement thereto in connection with such disposition);
(d) use its reasonable best efforts to register or qualify such
Registrable Securities covered by such Registration Statement under such
other securities or blue sky laws of such jurisdictions as each Holder
shall reasonably request, and do any and all other acts and things which
may be reasonably necessary or advisable to enable such Holder to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such Holder, except that the Company shall not for any
such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction where, but for the requirements of this
Section 7(d), it would not be obligated to be so qualified, to subject
itself to taxation in any such jurisdiction, or to consent to general
service of process in any such jurisdiction;
(e) notify each Holder of any such Registrable Securities
covered by such Registration Statement at any time when a Prospectus
relating thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in Section 7(b), of the Company's
becoming aware that the Prospectus included in such Registration Statement,
as then in effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing, and at the request of any such Holder prepare and furnish to such
Holder a reasonable number of copies of an amendment or supplement to the
Registration Statement or related Prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such Registrable Securities,
such Prospectus shall not include 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 in light of the circumstances
then existing;
(f) notify each Holder of Registrable Securities covered by such
Registration Statement at any time
(1) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the
same has become effective,
(2) of any request by the SEC for amendments or supplements
to the Registration Statement or the Prospectus or for additional
information, and of any comments, oral or written, by the SEC
with respect thereto,
(3) of the issuance by the SEC of any stop order suspending
the effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose,
(4) if at any time the representations and warranties of
the Company contemplated by paragraph (i)(1) below cease to be
true and correct, and
(5) of the receipt by the Company of any notification with
respect to the suspension of qualification or exemption from
qualification of the Registrable Securities for offering or sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
(g) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable (but not more than
eighteen months) after the effective date of the Registration Statement, an
earnings statement which shall satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations promulgated thereunder;
(h) cause all such Registrable Securities to be listed on any
securities exchange on which the Common Stock is then listed, if such
Registrable Securities are not already so listed and if such listing is
then permitted under the rules of such exchange, and to provide a transfer
agent, CUSIP number and registrar for such Registrable Securities covered
by such Registration Statement no later than the effective date of such
Registration Statement;
(i) enter into agreements (including underwriting agreements)
and take all other appropriate actions in order to expedite or facilitate
the disposition of such Registrable Securities and in such connection,
whether or not an underwriting agreement is entered into and whether or not
the registration is an Underwritten Offering:
(1) make such representations and warranties to the Holders
of such Registrable Securities, limited, as to such Holders, to
the extent such representations and warranties are based solely
on representations and warranties made by such Holders, and the
underwriters, if any, and agree to such indemnification and
contribution agreements, in form, substance and scope as are
customarily made by issuers to underwriters in comparable
underwritten offerings;
(2) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the underwriters,
if any, the Holders of the Registrable Securities being sold)
addressed to each such Holder and the underwriters, if any,
covering the matters customarily covered in opinions requested in
comparable underwritten offerings and such other matters as may
be reasonably requested by such Holders and such underwriters;
(3) obtain "cold comfort" letters and updates thereof from
the Company's independent certified public accountants addressed
to the selling Holders of Registrable Securities and the
underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "cold
comfort" letters by underwriters in connection with comparable
underwritten offerings;
(4) if requested, provide the indemnification in accordance
with the provisions and procedures of Section 9 hereof to all
parties to be indemnified pursuant to said Section; and
(5) deliver such documents and certificates as may be
reasonably requested by Apollo, AEW or the Carell Holders and the
underwriters, if any, to evidence compliance with clause (f)
above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company;
provided, that the matters set forth in this Section 7(i) shall be effected
at each closing under any underwriting or similar agreement as and to the
extent required thereunder and that nothing in this Section 7(i) shall be
interpreted in any manner which would increase the liability of the Company
to the Holders beyond those provided for in Section 9;
(j) cooperate with the Holders of Registrable Securities covered
by such Registration Statement and the underwriter or underwriters, if any,
to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing the securities to be sold
under such Registration Statement, and enable such securities to be in such
denominations and registered in such names as the underwriter or
underwriters, if any, or such Holders may reasonably request;
(k) if requested by the underwriter or underwriters or a Holder
of Registrable Securities being sold in connection with an Underwritten
Offering, immediately incorporate in a Prospectus supplement or post-
effective amendment such information as the underwriters and the Holders of
the Registrable Securities being sold, agree should be included therein
relating to the plan of distribution with respect to such Registrable
Securities, including, without limitation, information with respect to the
principal amount of Registrable Securities being sold to such underwriters,
the purchase price being paid therefor by such underwriters and with
respect to any other terms of the underwritten offering of the Registrable
Securities to be sold in such offering and make all required filings of
such Prospectus supplement or post-effective amendment promptly upon being
notified of the matters of be incorporated in such Prospectus supplement or
post-effective amendment;
(l) in the event of the Initial Underwriting and the Extra
Underwriting, participate in any "roadshow" marketing efforts reasonably
requested by the underwriters; and
(m) make available for inspection by any Holder of Registrable
Securities included in such Registration Statement any underwriter
participating in any disposition pursuant to such Registration Statement,
and any attorney, accountant or other agent retained by any such Holder or
underwriter (collectively, the "Inspectors"), all financial and other
records and other information, pertinent corporate documents and properties
of any of the Company and its subsidiaries and affiliates (collectively,
the "Records"), as shall be reasonably necessary to enable them to exercise
their due diligence responsibility.
The Company may require each Holder of Registrable Securities as
to which any registration is being effected to furnish the Company with
such information regarding such Holder and pertinent to the disclosure
requirements relating to the registration and the distribution of such
securities as the Company may from time to tine reasonably request in
writing.
Each Holder of Registrable Securities agrees that, upon receipt
of any notice (the "Suspension Notice") from the Company of the happening
of any event of the kind described in Section 7(e), such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to the
Prospectus or Registration Statement covering such Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 7(e), and, if so directed by the
Company, such Holder will use its reasonable best efforts to deliver to the
Company (at the Company's expense) all copies, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice. The
Company will use its reasonable best efforts to ensure that no Suspension
Period exceeds 30 days. The Company shall not be permitted to give more
than one Suspension Notice during any period of 12 consecutive months or to
cause the aggregate number of days included in all Suspension Periods, when
taken together with any Blackout Periods and Lockout Periods, during any
consecutive 12 months after the Publication Date to exceed 180 days (or
such longer period of time, to the extent that the Underwriters'
Representative of the Initial Underwriting requests a Lockout Period for
the Company and the Holders of longer than 90 days after the Initial
Underwriting).
8. Registration Expenses. With respect to the Initial Underwriting
and the Extra Underwriting but not any other Underwritten Offering in which
they may participate, the Holders participating as sellers shall, on a pro-
rata basis based on the amount of Registrable Securities sold by each
seller in such Underwritten Offering, pay all Registration Expenses
incurred in connection with the Registrable Securities sold by such
holders; provided, that if, within two years following the closing of
either such Underwritten Offering, the Company provides reimbursement of
any such expenses to any Holder, it will provide pro rata reimbursement to
all Holders. Each such Holder will also be responsible for the payment of
its own underwriting discounts, commissions and transfer taxes, if any,
relating to the sale or disposition of such Registrable Securities and any
of its own expenses, including the fees and expenses of any counsel
retained by it.
9. Indemnification; Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify each Holder of Registrable Securities, its officers and directors
and each Person who controls such Holder (within the meaning of the
Securities Act) and any agent or investment adviser thereof against all
losses, claims, damages, liabilities and expenses (including reasonable
attorneys' fees and expenses of investigation) incurred by such party
pursuant to any actual or threatened action, suit, proceeding or
investigation arising out of or based upon (i) any untrue or alleged untrue
statement of material fact contained in a Registration Statement, any
Prospectus or preliminary Prospectus, or any amendment or supplement to any
of the foregoing or (ii) any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein (in the case of a Prospectus or a preliminary
Prospectus, in light of the circumstances then existing) not misleading,
except in each case insofar as the same arise out of or are based upon, any
such untrue statement or omission made in reliance on and in conformity
with (i) information with respect to such indemnified party furnished in
writing to the Company by such indemnified party or its counsel expressly
for use therein, or (ii) with respect to Apollo and AEW, the
representations and warranties made by Holdings in the Merger Agreement and
the schedules attached thereto, but only to the extent that such
representations and warranties were incorrect as of the Closing and the
alleged inaccuracies or omissions relate to periods preceding the Closing;
provided, that the release of the Company's indemnification obligations
pursuant to clause (ii) will be limited (x) to the extent that the Company
becomes aware that a representation or warranty made by Holdings in the
Merger Agreement and the schedules thereto is incorrect or incomplete
before the effectiveness of the Registration Statement, the Prospectus or
preliminary Prospectus, or any amendment or supplement to any of the
foregoing, containing such untrue statement or omission or (y) to the
extent that the Company became aware of such incorrectness or
incompleteness after the effectiveness of such document and failed to
promptly amend or supplement such document as may be necessary to satisfy
the requirements of the Securities Act. In connection with an Underwritten
Offering, the Company will indemnify the underwriters thereof, their
officers and directors and each Person who controls such underwriters
(within the meaning of the Securities Act) to the same extent as provided
above with respect to the indemnification of the Holders of Registrable
Securities. Notwithstanding the foregoing provisions of this Section 9(a),
in the case of an offering that is not an Underwritten Offering, the
Company will not be liable to any Holder of Registrable Securities under
the indemnity agreement in this Section 9(a) for any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense
that arises out of such Holder's failure to send or give a copy of the
final Prospectus to the Person asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of the Registrable Securities to such Person if
such statement or omission was corrected in such final Prospectus and the
Company has previously furnished copies thereof in accordance with this
Agreement. Notwithstanding the foregoing, nothing in this Section 9(a)
shall be construed in any manner which would increase the indemnification
liabilities of Apollo and/or AEW to the Company contained in Article VIII
of the Merger Agreement.
(b) Indemnification by Holders of Registrable Securities. In
connection with a Registration Statement, each Holder will furnish to the
Company in writing such information, including with respect to the name,
address and the amount of Registrable Securities held by such Holder, as
the Company reasonably requests for use in such Registration Statement or
the related Prospectus and agrees to indemnify and hold harmless (in the
same manner and to the same extent as set forth in Section 9(a)) the
Company, all other prospective Holders, with respect to a Holder, or any
underwriter, as the case may be, and any of their respective affiliates,
directors, officers and controlling Persons, (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities and
expenses resulting from any untrue or alleged untrue statement of a
material fact or any omission or alleged omission of a material fact
required to be stated in such Registration Statement or Prospectus or any
amendment or supplement to either of them or necessary to make the
statements therein (in the case of a Prospectus, in the light of the
circumstances then existing) not misleading, but only to the extent that
any such untrue statement or omission is made in reliance on and in
conformity with information with respect to such Holder furnished in
writing to the Company by such Holder or its counsel specifically for
inclusion therein.
(c) Conduct of Indemnification Proceedings. Any Person entitled
to indemnification hereunder agrees to give prompt written notice to the
indemnifying party after the receipt by such indemnified party of any
written notice of the commencement of any action, suit, proceeding or
investigation or threat thereof made in writing for which such indemnified
party may claim indemnification or contribution pursuant to this Agreement
(provided that failure to give such notification shall not affect the
obligations of the indemnifying person pursuant to this Section 9 except to
the extent the indemnifying party shall have been actually prejudiced as a
result of such failure). In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under these
indemnification provisions for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs
of investigation, unless in the reasonable judgment of any indemnified
party a conflict of interest is likely to exist between such indemnified
party and any other of such indemnified parties with respect to such claim,
in which event the indemnifying party shall be obligated to pay the
reasonable fees and expenses of such additional counsel or counsels. The
indemnifying party will not be subject to any liability for any settlement
made without its consent (which consent will not be unreasonably withheld).
(d) Contribution. If the indemnification from the indemnifying
party provided for in this Section 9 is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages, liabilities and expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and indemnified party
in connection with the actions which resulted in such losses, claims,
damages, liabilities and expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of
the losses, claims, damages, liabilities and expenses referred to above
shall be deemed to include, subject to the limitations set forth in Section
9(c), any legal and other fees and expenses reasonably incurred by such
indemnified party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 9(d) were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 9(d), no
underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission, and no Holder of Registrable Securities shall
be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities of such Holder were offered
to the public (net of all underwriting discounts and commissions) exceeds
the amount of any damages which such Holder has otherwise been required to
pay by reason of such untrue statement or omission. 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.
If indemnification is available under this Section 9, the
indemnifying parties shall indemnify each indemnified party to the full
extent provided in Section 9(a) or (b), as the case may be, without regard
to the relative fault of said indemnifying parties or indemnified party or
any other equitable consideration provided for in this Section 9(d).
(e) The provisions of this Section 9 shall be applicable in
respect of each registration pursuant to this Agreement, shall be in
addition to any liability which any party may have to any other party and
shall survive any termination of this Agreement.
10. Rule 144. For a period of two years following the Closing Date
or, if at the end of such two year period, a Holder is an affiliate of the
Company, until such time as no Holder is an affiliate of the Company, the
Company covenants that it will use reasonable best efforts to file the
reports required to be filed by it under the Securities Act and the
Exchange Act (or, if the Company is not required to file such reports, it
will, upon the request of any Holder of Registrable Securities, use its
reasonable best efforts to make publicly available other information so
long as necessary to permit sales under Rule 144 under the Securities Act),
and it will take such further action as any Holder of Registrable
Securities may reasonably request, all to the extent required from time to
time to enable such Holder to sell shares of Common Stock without
registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
11. Miscellaneous.
(a) Remedies. Each Holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement.
(b) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained the written
consent of the Carell Holders and Allright Holders owning 70% of the
Registrable Securities then held by all of the Allright Holders.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or sent by telex or telecopier,
registered or certified mail (return receipt requested), postage prepaid,
or courier guaranteeing next day delivery to the parties at the following
addresses (or at such other address for any party an shall be specified by
like notice, provided that notices of a change of address shall be
effective only upon receipt thereof). Notices delivered personally shall
be effective upon receipt, notices sent by mail shall be effective three
days after mailing, notices sent by telex shall be effective when answered
back, notices sent by telecopier shall be effective when receipt is
acknowledged, and notices sent by courier guaranteeing next day delivery
shall be effective on the next business day after timely delivery to the
courier:
(i) if to the Holders at:
Apollo Real Estate Investment Fund II, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
and
AEW Partners, L.P.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
Facsimile: (000) 000-0000
and
Xxxxxxx, Procter & Xxxx
Exchange Place
Boston, MA 02109
Attention: Xxxxx Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
(ii) if to the Company at:
Central Parking Corporation
0000 00xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Monroe J. Carell, Jr.
Facsimile: (000)000-0000
with copies to:
Xxxxxxx Xxxxxx Xxxx Xxxxxxx & Manner, P.C.
1800 First American Center
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Manner
Facsimile: (000) 000-0000
(iii) if to the Carell Holders at:
Central Parking Corporation
0000 00xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Monroe J. Carell, Jr.
Facsimile: (000) 000-0000
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors of each of the parties and
transferees of Registrable Securities. No provision of this Agreement
shall be construed in any manner as to restrict the ability of any Holder
to pledge all or any portion of the Registrable Securities owned by such
Holder, including the registration rights related to such Registrable
Securities granted hereunder, to any lender; provided, that, in the event
that one or more pledgees succeed to all or a portion of the shares of
Common Stock, and the registration rights related to such shares, formerly
owned by a Holder, such registration rights may only be exercised if the
then holders of a majority of such shares agree to exercise such right.
Accordingly, with respect to the exercise of any of the registration rights
granted hereunder, the original Holder of Registrable Securities, and all
pledgees of such Holder's Registrable Securities, shall be deemed to be,
collectively, one Holder. No holder of any such shares of Common Stock,
however, whether a Holder or a pledgee, shall be under any obligation to
sell, transfer or register any of the shares of Common Stock it then owns
in the event that a majority of such holders elects to exercise any
registration right granted hereunder.
(e) Xxxxxx Shareholders Agreement. The Company hereby agrees
that it will use its reasonable best efforts to comply with all provisions
of the shareholders agreement and agreement not to compete, dated as of
February 12, 1998, by and among the Company, Monroe J. Carell, Jr. and the
Xxxxxx Holders, which are related, in any manner, to the timing of the
activation of the Xxxxxx Registration Rights, or in any manner amend or
modify such shareholders agreement in a manner adverse to the Holders with
respect to the registration rights granted hereunder.
(f) Construction. References herein to a specified number of
Registrable Securities are subject to equitable adjustment for shares of
Common Stock issued as a dividend or distribution on account of Registrable
Securities and for any combination or subdivision of outstanding
Registrable Securities into a less or greater number of securities (by
reclassification, stock split or otherwise). In the event shares of Common
Stock included in the Registrable Securities are exchanged for any other
securities issued by the Company, such other securities shall constitute
Registrable Securities in accordance with clause (b) of the definition of
"Registrable Securities" in Section 1 and the provisions of this Agreement
shall be interpreted and construed in order to provide registration rights
with respect to such other securities constituting Registrable Securities
that are substantially identical to the registration rights granted hereunder
with respect to the exchanged shares of Common Stock.
(g) Counterparts. This 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.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable
to contracts made and to be performed wholly within that State.
(j) 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 contained herein
shall not be in any way impaired thereby, it being intended that all
remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the
Holders shall be enforceable to the fullest extent permitted by law.
(k) Entire Agreement. This Agreement is intended by the parties
as a final expression and a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter hereof. There are no restrictions, promises, warranties or
undertakings with respect to the subject matter hereof, other than those
set forth or referred to herein and therein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to
such subject matter.
(l) Termination. This Agreement, with respect to the Allright
Holders, shall terminate, and be of no further force and effect, in the
event that the Merger is not consummated for any reason.
(m) Pooling. Central, the Carell Holders, AEW and Apollo shall
use reasonable best efforts, with respect to the transactions contemplated
by this Agreement, to cause the Merger to be accounted for as a pooling of
interests under Opinion 16 of the Accounting Principles Board and
applicable SEC rules and regulations, and each party agrees that it shall
take no action that would cause such accounting not to be obtained.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
CENTRAL PARKING CORPORATION
By: /s/ Monroe J. Carell, Jr.
---------------------------------------------
Name: Monroe J. Carell, Jr.
Title: Chief Executive Officer and
Chairman of the Board
MONROE J. CARELL, JR.
/s/ Monroe J. Carell, Jr.
------------------------------------------------
THE CARELL CHILDREN'S TRUST
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 10/30/87
By: /s/ M. Xxxx Xxxxxx, Xx.
---------------------------------------------
Name: M. Xxxx Xxxxxx, Xx.
Title: Executive Vice President
MONROE CARELL, JR. 1994 GRANTOR
RETAINED ANNUITY TRUST
By: /s/ Monroe Carell, Jr.
---------------------------------------------
Name: Monroe Carell, Jr.
Title: Trustee U/A Monroe Carell, Jr.
dated 9/22/94
MONROE CARELL, JR. 1995 GRANTOR
RETAINED ANNUITY TRUST
By: /s/ Monroe Carell, Jr.
--------------------------------------------
Name: Monroe Carell, Jr.
Title: Trustee U/A Monroe Carell,
Jr. dated 2/7/95
THE 1996 CARELL GRANDCHILDREN'S TRUST
F/B/O XXXXX XXXXXX XXXXXXX
By: /s/ L. Xxxxx Xxxxxx
---------------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Xxxxxxx Carell Xxxxx
---------------------------------------------
Name: Xxxxxxx Carell Xxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Xxxxx Carell Xxxxxxx
---------------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Xxxxx Carell Xxxxxxx
---------------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
THE 1996 CARELL GRANDCHILDREN'S TRUST
F/B/O CARELL XXXXXXXXX XXXXX
By: /s/ L. Xxxxx Xxxxxx
---------------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Xxxxxxx Carell Xxxxx
---------------------------------------------
Name: Xxxxxxx Carell Xxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Xxxxx Carell Xxxxxxx
---------------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Xxxxx Carell Xxxxxxx
---------------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
THE 1996 CARELL GRANDCHILDREN'S TRUST
F/B/O XXXXX XXXXXXXX XXXXX
By: /s/ L. Xxxxx Xxxxxx
---------------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Xxxxxxx Carell Xxxxx
---------------------------------------------
Name: Xxxxxxx Carell Xxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Xxxxx Carell Xxxxxxx
---------------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Xxxxx Carell Xxxxxxx
---------------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
THE 1996 CARELL GRANDCHILDREN'S TRUST F/B/O
XXXXXXX CARELL XXXXXXX
By: /s/ L. Xxxxx Xxxxxx
---------------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Xxxxxxx Carell Xxxxx
---------------------------------------------
Name: Xxxxxxx Carell Xxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Xxxxx Carell Xxxxxxx
---------------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Xxxxx Carell Xxxxxxx
---------------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
THE 1996 CARELL GRANDCHILDREN'S TRUST F/B/O
XXXXXX XXXXXX XXXXXXX
By: /s/ L. Xxxxx Xxxxxx
---------------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Xxxxxxx Carell Xxxxx
---------------------------------------------
Name: Xxxxxxx Carell Xxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Xxxxx Carell Xxxxxxx
---------------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Xxxxx Carell Xxxxxxx
---------------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O XXXXX XXXXXX XXXXXXX
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 12/26/90
By: /s/ M. Xxxx Xxxxxx, Xx.
---------------------------------------------
Name: M. Xxxx Xxxxxx, Xx.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O XXXXXX XXXXXX XXXXXXX
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 12/26/90
By: /s/ M. Xxxx Xxxxxx, Xx.
---------------------------------------------
Name: M. Xxxx Xxxxxx, Xx.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O CARELL XXXXXXXXX XXXXX
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 12/26/90
By: /s/ M. Xxxx Xxxxxx, Xx.
---------------------------------------------
Name: M. Xxxx Xxxxxx, Xx.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O XXXXX XXXXXXXX XXXXX
By: Equitable Trust Company, Successor
Trustee U/A Monroe Carell, Jr.
dated 12/26/90
By: /s/ M. Xxxx Xxxxxx, Xx.
---------------------------------------------
Name: M. Xxxx Xxxxxx, Xx.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O XXXXXXX CARELL XXXXXXX
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 12/26/90
By: /s/ M. Xxxx Xxxxxx, Xx.
---------------------------------------------
Name: M. Xxxx Xxxxxx, Xx.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O XXX XXXXX XXXXXXX
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr.
dated 12/26/90
By: /s/ M. Xxxx Xxxxxx, Xx.
---------------------------------------------
Name: M. Xxxx Xxxxxx, Xx.
Title: Executive Vice President
THE MONROE CARELL, JR. FOUNDATION
By: /s/ Monroe J. Carell, Jr.
---------------------------------------------
Name: Monroe J. Carell, Jr.
Title: President
THE XXXXXXX CARELL XXXXX FOUNDATION
By: /s/ Xxxxxxx Carell Xxxxx
---------------------------------------------
Name: Xxxxxxx Carell Xxxxx
Title: Chairman, Board of Trustees
THE XXXXX CARELL XXXXXXX FOUNDATION
By: /s/ Xxxxx Carell Xxxxxxx
---------------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Chairman, Board of Trustees
THE XXXXX CARELL XXXXXXX FOUNDATION
By: /s/ Xxxxx Carell Xxxxxxx
---------------------------------------------
Name: Xxxxx Carell Xxxxxxx
Title: Chairman, Board of Trustees
1997 CARELL XXXXXXXXX XXXXX TRUST
By: /s/ L. Xxxxx Xxxxxx
---------------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Trustee U/A Xxxxxxx Carell Xxxxx and
Xxxxx X. Xxxxx dated 12/23/97
1997 XXXXX XXXXXXXX XXXXX TRUST
By: /s/ L. Xxxxx Xxxxxx
---------------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Trustee U/A Xxxxxxx Carell Xxxxx and
Xxxxx X. Xxxxx dated 12/23/97
1997 XXXXXXX CARELL XXXXXXX TRUST
By: /s/ L. Xxxxx Xxxxxx
---------------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Trustee U/A Xxxxx Carell Xxxxxxx and
Xxxxx X. Xxxxxxx dated 12/23/97
1997 XXX XXXXX XXXXXXX TRUST
By: /s/ L. Xxxxx Xxxxxx
---------------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Trustee U/A Xxxxx Carell Xxxxxxx and
Xxxxx X. Xxxxxxx dated 12/23/97
0000 XXXXXX XXXXXX XXXXXXX TRUST
By: /s/ L. Xxxxx Xxxxxx
---------------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Trustee U/A Xxxxx Carell Xxxxxxx and
Xxxxxx X. Xxxxxxx dated 12/23/97
1997 XXXXX XXXXXX XXXXXXX TRUST
By: /s/ L. Xxxxx Xxxxxx
---------------------------------------------
Name: L. Xxxxx Xxxxxx
Title: Trustee U/A Xxxxx Carell Xxxxxxx and
Xxxxxx X. Xxxxxxx dated 12/23/97
APOLLO REAL ESTATE INVESTMENT FUND II, L.P.
By: Apollo Real Estate Advisors II, L.P.,
its general partner
By: Apollo Real Estate Capital Advisors II,
Inc., its general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
AEW PARTNERS, L.P.
By: AEW/L.P., its general partner
By: AEW, Inc., its general partner
By: /s/ Xxxx Xxxxxxxx
---------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
