FACT,
SITUATION, CIRCUMSTANCE, CONDITION OR OTHER BASIS FOR ANY PRESENT OR FUTURE
ACTION, SUIT, PROCEEDING, HEARING, CHARGE, COMPLAINT, CLAIM OR DEMAND AGAINST
THE COMPANY OR ITS SUBSIDIARIES GIVING RISE TO ANY SUCH LIABILITY), EXCEPT
(I) FOR LIABILITIES SET FORTH IN THE FINANCIAL STATEMENTS AND (II) NORMAL
FLUCTUATION IN THE AMOUNT OF THE LIABILITIES REFERRED TO IN CLAUSE (I) ABOVE
OCCURRING IN THE ORDINARY COURSE OF BUSINESS OF THE COMPANY AND ALL OF ITS
SUBSIDIARIES SINCE THE DATE OF THE MOST RECENT BALANCE SHEET INCLUDED IN THE
FINANCIAL STATEMENTS.
5.19.
LITIGATION. NO CHARGE, INVESTIGATION, ACTION, SUIT OR PROCEEDING IS
PENDING OR, TO THE KNOWLEDGE OF THE OFFERORS, THREATENED AGAINST OR AFFECTING
THE COMPANY OR ITS SUBSIDIARIES OR ANY OF THEIR RESPECTIVE PROPERTIES BEFORE OR
BY ANY COURTS OR ANY REGULATORY, ADMINISTRATIVE OR GOVERNMENTAL OFFICIAL,
COMMISSION, BOARD, AGENCY OR OTHER AUTHORITY OR BODY, OR ANY ARBITRATOR, WHEREIN
AN UNFAVORABLE DECISION, RULING OR FINDING COULD HAVE, SINGLY OR IN THE
AGGREGATE, A MATERIAL ADVERSE EFFECT.
5.20.
DEFERRAL OF INTEREST PAYMENTS ON DEBENTURES. THE COMPANY HAS NO
PRESENT INTENTION TO EXERCISE ITS OPTION TO DEFER PAYMENTS OF INTEREST ON THE
DEBENTURES AS PROVIDED IN THE INDENTURE.
THE COMPANY BELIEVES THAT THE
LIKELIHOOD THAT IT WOULD EXERCISE ITS RIGHT TO DEFER PAYMENTS OF INTEREST ON THE
DEBENTURES AS PROVIDED IN THE INDENTURE AT ANY TIME DURING WHICH THE DEBENTURES
ARE OUTSTANDING IS REMOTE BECAUSE OF THE RESTRICTIONS THAT WOULD BE IMPOSED ON
THE COMPANY'S ABILITY TO DECLARE OR PAY
9
DIVIDENDS OR DISTRIBUTIONS ON, OR TO REDEEM, PURCHASE, ACQUIRE OR MAKE A
LIQUIDATION PAYMENT WITH RESPECT TO, ANY OF THE COMPANY'S CAPITAL STOCK AND ON
THE COMPANY'S ABILITY TO MAKE ANY PAYMENTS OF PRINCIPAL, INTEREST OR PREMIUM ON,
OR REPAY, REPURCHASE OR REDEEM, ANY OF ITS DEBT SECURITIES THAT RANK PARI PASSU
IN ALL RESPECTS WITH, OR JUNIOR IN INTEREST TO, THE DEBENTURES.
SECTION 6.
REPRESENTATIONS AND WARRANTIES OF THE PLACEMENT
AGENTS. EACH PLACEMENT AGENT REPRESENTS AND WARRANTS TO THE OFFERORS AS TO
ITSELF (BUT NOT AS TO THE OTHER PLACEMENT AGENT) AS FOLLOWS:
6.1.
ORGANIZATION, STANDING AND QUALIFICATION.
(A)
FTN FINANCIAL CAPITAL MARKETS IS A DIVISION OF FIRST TENNESSEE BANK
NATIONAL ASSOCIATION, A NATIONAL BANKING ASSOCIATION DULY ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE UNITED STATES, WITH FULL
POWER AND AUTHORITY TO OWN, LEASE AND OPERATE ITS PROPERTIES AND CONDUCT ITS
BUSINESS AS CURRENTLY BEING CONDUCTED.
FTN FINANCIAL CAPITAL MARKETS IS DULY
QUALIFIED TO TRANSACT BUSINESS AS A FOREIGN CORPORATION AND IS IN GOOD STANDING
IN EACH OTHER JURISDICTION IN WHICH IT OWNS OR LEASES PROPERTY OR CONDUCTS ITS
BUSINESS SO AS TO REQUIRE SUCH QUALIFICATION AND IN WHICH THE FAILURE TO SO
QUALIFY WOULD, INDIVIDUALLY OR IN THE AGGREGATE, HAVE A MATERIAL ADVERSE EFFECT
ON THE CONDITION (FINANCIAL OR OTHERWISE), EARNINGS, BUSINESS, PROSPECTS OR
RESULTS OF OPERATIONS OF FTN FINANCIAL CAPITAL MARKETS.
(B)
KEEFE, BRUYETTE & WOODS, INC. IS A CORPORATION DULY ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF NEW