1
EXECUTION COPY
================================================================================
APCOA, INC.
-----------------
$140,000,000
9 1/4% Senior Subordinated Notes due 2008
-----------------
----------
PURCHASE AGREEMENT
DATED AS OF MARCH 25, 1998
----------
Donaldson, Lufkin & Jenrette
Securities Corporation
First Chicago Capital Markets, Inc.
================================================================================
2
APCOA, Inc.
$140,000,000 Principal Amount of
9 1/4% Senior Subordinated Notes Due 2008
PURCHASE AGREEMENT
March 25, 1998
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
FIRST CHICAGO CAPITAL MARKETS, INC.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
APCOA, Inc., a Delaware corporation (the "Company"), proposes to issue and
sell an aggregate of $140,000,000 in principal amount of 9 1/4% Senior
Subordinated Notes due 2008 (the "Senior Subordinated Notes") of the Company, to
Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ") and First Chicago
Capital Markets, Inc. ("First Chicago", and together with DLJ, the "Initial
Purchasers") to be issued pursuant to an indenture (the "Indenture") between the
Company, each of the subsidiaries of the Company noted on Schedule I hereto (the
"Subsidiary Guarantors") and State Street Bank and Trust Company, as trustee
(the "Trustee"). The Senior Subordinated Notes and the New Senior Subordinated
Notes (as defined below) issuable in exchange therefor are collectively referred
to herein as the "Notes." The Notes will be guaranteed on a senior subordinated
basis by the Subsidiary Guarantors pursuant to their guarantee (the "Note
Guarantees"). The Notes and the Note Guarantees are hereinafter collectively
referred to as the "Securities." Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Indenture.
The Senior Subordinated Notes are being issued and sold in connection with
a combination (the "Combination") pursuant to the terms and conditions contained
in a combination agreement (the "Combination Agreement"), pursuant to which the
Company will acquire all of the outstanding capital stock, partnership and other
equity interests of Standard Parking Corporation, an Illinois corporation;
Standard Auto Park, Inc., an Illinois corporation; Standard Parking Corporation,
MW, an Illinois corporation; Standard Parking L.P., a Delaware limited
partnership; Standard Parking Corporation, IL, an Illinois corporation; and
Standard/Wabash Parking Corporation, an Illinois corporation (all such interests
collectively, "Standard").
The net proceeds to the Company from the sale to the Initial Purchasers of
the Senior Subordinated Notes (the "Proceeds") will be used by the Company: (i)
to fund the cash purchase portion of the consideration payable in connection
with the Combination; (ii) to repay certain indebtedness; (iii) for general
corporate purposes, including working capital needs and
3
future acquisitions; (iv) to redeem preferred stock held by Holberg; and (v) no
pay fees and expenses in connection with the Transactions.
1. ISSUANCE OF SECURITIES. The Senior Subordinated Notes will be offered
and sold to the Initial Purchasers pursuant to an exemption from the
registration requirements under the Securities Act of 1933, as amended (the
"Act"). The Company has prepared a preliminary offering memorandum, dated March
13, 1998 (the "Preliminary Offering Memorandum") and a final offering
memorandum, dated March 25, 1998 (the "Offering Memorandum" and, together with
the Preliminary Offering Memorandum, the "Offering Documents"), relating to the
Senior Subordinated Notes.
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Act, the Senior
Subordinated Notes (and all securities issued in exchange therefor, in
substitution thereof or upon conversion thereof) shall bear the following
legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1) (a) INSIDE THE UNITED STATES TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 904 UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF THE SECURITIES
ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR") THAT, PRIOR
-2-
4
TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT OR (e) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND IN THE CASE OF CLAUSE (b), (c), (d), or (e), BASED
UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY
OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE,
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM
IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH
IN (A) ABOVE."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the representations,
warranties and covenants contained in this Agreement, and subject to the terms
and conditions contained herein, the Company agrees to issue and sell to the
Initial Purchasers, and each Initial Purchaser agrees, severally and not
jointly, to purchase from the Company, the principal amounts of Senior
Subordinated Notes set forth opposite the name of Such Initial Purchasers on
Schedule II hereto at a purchase price equal to 100% of the principal amount
thereof (the "Purchase Price").
3. TERMS OF OFFERING. The Initial Purchasers will make offers (the "Exempt
Resales") of the Senior Subordinated Notes purchased hereunder on the terms set
forth in the Offering Memorandum, as amended or supplemented, solely to persons
(each, a "144A Purchaser") whom the Initial Purchasers reasonably believe to be
"qualified institutional buyers" as defined in Rule 144A under the Act ("QIBs")
or persons otherwise exempt under Regulation S of the Securities Act (together
with QIBs, "Eligible Purchasers"). The Initial Purchasers will offer the Senior
Subordinated Notes to Eligible Purchasers initially at a price equal to 100% of
the principal amount thereof. Such price may be changed at any time without
notice.
Holders (including subsequent transferees) of the Senior Subordinated
Notes will have the registration rights set forth in the registration rights
agreement (the "Registration Rights Agreement"), to be dated the Closing Date
(as defined below), in substantially the form of Exhibit A hereto, for so long
as such Senior Subordinated Notes constitute "Transfer Restricted Securities"
(as defined in the Registration Rights Agreement). Pursuant to the Registration
Rights Agreement, the Company will agree to file with the Securities and
Exchange Commission (the
-3-
5
"Commission") under the circumstances set forth therein, (i) a registration
statement under the Act (the "Exchange Offer Registration Statement") relating
to the Company's 9 1/4% new Senior Subordinated Notes due 2008 (the "New Senior
Subordinated Notes") to be offered in exchange for the Senior Subordinated
Notes, (such offer to exchange being referred to as the "Registered Exchange
Offer") and (ii) a shelf registration statement pursuant to Rule 415 under the
Act (the "Shelf Registration Statement" and, together with the Exchange Offer
Registration Statement, the "Registration Statements") relating to the resale by
certain holders of the Senior Subordinated Notes, and to use their best efforts
to cause such Registration Statements to be declared effective and consummate
the Registered Exchange Offer. This Agreement, the Indenture, the Notes, the
Note Guarantees and the Registration Rights Agreement are hereinafter referred
to collectively as the "Operative Documents."
4. DELIVERY AND PAYMENT. (a) Delivery of, and payment of the Purchase
Price for, the Senior Subordinated Notes shall be made at the offices of
Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York, New York or at
such other location as may be mutually acceptable. Such delivery and payment
shall be made at 9:00 a.m. New York City time, on March 30, 1998 or at such
other time as shall be agreed upon by the Company and the Initial Purchasers.
The time and date of such delivery and the payment are herein called the
"Closing Date."
(b) One or more Senior Subordinated Notes in definitive form,
registered in the name of Cede & Co., as nominee of the Depository Trust Company
("DTC"), or such other names as the Initial Purchasers may request upon at least
one business day's notice to the Company, having an aggregate principal amount
corresponding to the aggregate principal amount of Senior Subordinated Notes
sold pursuant to Exempt Resales to Eligible Purchasers (collectively, the
"Master Notes"), shall be delivered by the Company to the Initial Purchasers (or
as the Initial Purchasers direct) in each case with any taxes thereon duly paid
by the Company, against payment by the Initial Purchasers of the Purchase Price
thereof by wire transfer in same day funds to the order of the Company or as the
Company may direct. The Master Notes shall be made available to the Initial
Purchasers for inspection not later than 9:30 a.m., New York City time, on the
business day immediately preceding the Closing Date.
5. AGREEMENTS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS. The Company
and the Subsidiary Guarantors, jointly and severally, covenant and agree with
the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by
the Initial Purchasers, to confirm such advice in writing, (i) of the
issuance by any state securities commission of any stop order suspending
the qualification or exemption from qualification of any of the Senior
Subordinated Notes for offering or sale in any jurisdiction designated by
the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation
of any proceeding for such purpose by any state securities commission or
other regulatory authority and (ii) of the happening of any event that
makes any statement of a material fact made in the Offering Documents (or
any amendment or supplement thereto) untrue or that requires the making of
-4-
6
any additions to or changes in the Offering Documents (or any amendment or
supplement thereto) in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading. The
Company shall use its best efforts to prevent the issuance of any stop
order or order suspending the qualification or exemption from
qualification of the Senior Subordinated Notes under any state securities
or Blue Sky laws, and, if at any time any state securities commission or
other regulatory authority shall issue any stop order or order suspending
the qualification or exemption from qualification of any of the Senior
Subordinated Notes under any state securities or Blue Sky laws, the
Company shall use its best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons identified
by the Initial Purchasers to the Company, without charge, as many copies
of the Offering Documents, and any amendments or supplements thereto, as
the Initial Purchasers may reasonably request. The Company consents to the
use of the Offering Documents, and any amendments or supplements thereto
required pursuant hereto, by the Initial Purchasers in connection with
Exempt Resales.
(c) During such period as in the written opinion of counsel for the
Initial Purchasers an Offering Memorandum is required by law to be
delivered in connection with the Exempt Resales by the Initial Purchasers
and in connection with market-making activities of the Initial Purchasers
for so long as the Senior Subordinated Notes are outstanding (i) not to
amend or supplement the Offering Documents, whether before or after the
Closing Date, unless the Initial Purchasers shall previously have been
advised thereof, and shall not have objected thereto within a reasonable
time after being furnished a copy thereof, and (ii) to promptly prepare,
upon the Initial Purchasers's reasonable request, any amendment or
supplement to the Offering Documents that the Initial Purchasers
reasonably believe necessary or advisable in connection with Exempt
Resales or such market-making activities.
(d) If, after the date hereof and prior to the earlier of the
completion of all Exempt Resales by the Initial Purchasers and the 90th
day after the Closing Date, any event shall occur as a result of which, in
the judgment of the Company or counsel to the Initial Purchasers, it
becomes necessary to amend or supplement the Offering Memorandum in order
to make the statements therein, in the light of the circumstances when
such Offering Memorandum is delivered to an Eligible Purchaser, not
misleading or if it is necessary to amend or supplement the Offering
Memorandum to comply with any law, statute, rule or regulation, to
forthwith prepare an appropriate amendment or supplement to such Offering
Memorandum so that the statements therein, as so amended or supplemented,
will not, in the light of the circumstances when it is so delivered, be
misleading, or so that such Offering Memorandum will comply with
applicable law.
-5-
7
(e) To cooperate with the Initial Purchasers and counsel to the
Initial Purchasers in connection with the registration or qualification of
the Senior Subordinated Notes under the state securities or Blue Sky laws
of such jurisdictions as the Initial Purchasers may request, to continue
such registration or qualification in effect so long as required for the
Exempt Resales and to file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification; provided, however, that the Company shall not be required
in connection therewith to register or qualify as a foreign corporation in
any jurisdiction in which the Company is not now so qualified, or take any
action that would subject the Company to general consent to service of
process or taxation, other than as to matters and transactions relating to
Exempt Resales, in any jurisdiction in which the Company is not now so
subject.
(f) For so long as the Notes are outstanding, to furnish without
charge to the Initial Purchasers promptly upon their becoming available
(i) all reports or other publicly available information that the Company
shall mail or otherwise make available to the Company's stockholders and
(ii) all reports, financial statements and proxy or information statements
filed by the Company or its subsidiaries with the Commission or any
national securities exchange and such other publicly available information
concerning the business and financial condition of the Company or its
subsidiaries, including without limitation, press releases, as the Initial
Purchasers may reasonably request.
(g) To use the net proceeds from the sale of the Senior Subordinated
Notes in the manner described in the Offering Memorandum (and any
amendments or supplements thereto) under the caption "Use of Proceeds."
(h) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of any Notes.
(i) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement becomes effective or is terminated to
pay and be responsible for all costs, expenses, fees and taxes in
connection with or incident to:
(1) the preparation, printing, processing, duplicating, filing
and distribution of the Offering Documents (including, without
limitation, financial statements and exhibits) and all amendments
and supplements thereto;
(2) the preparation, printing and delivery of the Operative
Documents, the preliminary and final Blue Sky memoranda and all
other agreements, memoranda, correspondence and other documents
printed, distributed and delivered in connection herewith and with
the Exempt Resales (including in each case any disbursements of
counsel to the Initial Purchasers relating to such printing and
delivery);
-6-
8
(3) the issuance, transfer and delivery by the Company and the
Subsidiary Guarantors of the Senior Subordinated Notes and the Note
Guarantees to the Initial Purchasers;
(4) the registration or qualification of the Notes and the
Note Guarantees for offer and sale under the securities or Blue Sky
laws of the jurisdictions referred to in Section 5(e) (including, in
each case, the fees and disbursements of counsel to the Initial
Purchasers relating to such registration or qualification and
memoranda relating thereto);
(5) furnishing such copies of the Preliminary Offering
Memorandum and the Offering Memorandum, and all amendments and
supplements thereto, as may be requested for use in connection with
the Exempt Resales;
(6) the preparation of certificates for the Notes (including,
without limitation, printing and engraving thereof);
(7) the rating of the Notes by investment rating agencies;
(8) the fees, disbursements and expenses of the Company's and
the Subsidiary Guarantors' counsel and accountants;
(9) all expenses and listing fees in connection with the
application for quotation of the Senior Subordinated Notes in the
National Association of Securities Dealers, Inc. ("NASD") Private
Offerings, Resales and Trading through Automated Linkages
("PORTAL");
(10) the fees and expenses of the Trustee and the Trustee's
counsel in connection with the Indenture and the Notes;
(11) all fees and expenses (including fees and expenses of
counsel to the Company) of the Company in connection with approval
of the Note by DTC for "book-entry" transfer; and
(12) the performance by the Company of its other obligations
under this Agreement and the other Operative Documents.
(j) If this Agreement shall be terminated pursuant to any of the
provisions hereof (other than a default by the Initial Purchasers) or if
for any reason the Company shall be unable or unwilling to perform their
obligations hereunder, the Company shall, except as otherwise agreed by
the parties hereto, reimburse the Initial Purchasers for the fees and
expenses to be paid or reimbursed pursuant to Section 5(i) above, and
reimburse the Initial Purchasers for all out-of-pocket expenses (including
the fees and expenses of counsel to the Initial Purchasers) rea-
-7-
9
sonably incurred by the Initial Purchasers in connection with the
transactions contemplated by this Agreement.
(k) Prior to the consummation of the Exchange Offer, to furnish to
the Initial Purchasers, as soon as they have been prepared by the Company,
a copy of any consolidated financial statements of the Company for any
period subsequent to the period covered by the financial statements
appearing in the Offering Memorandum.
(l) Not to distribute prior to the Closing Date any offering
material in connection with the offering and sale of the Senior
Subordinated Notes other than the Offering Memorandum.
(m) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act)
that would be integrated with the sale of the Senior Subordinated Notes in
a manner that would require the registration under the Act of the sale to
the Initial Purchasers or the Eligible Purchaser of the Senior
Subordinated Notes.
(n) For so long as any of the Notes remain outstanding and during
any period in which the Company is not subject to Section 13 or 15(d) of
the Exchange Act, to make available to any holder of Notes in connection
with any sale thereof and any prospective purchaser of such Notes from
such holder, the information ("Rule 144A Information") required by Rule
144A(d)(4) under the Act.
(o) To comply with all of their agreements set forth in the
Registration Rights Agreement, and all agreements set forth in the
representation letters of the Company to DTC relating to the approval of
the Notes by DTC for "book-entry" transfer.
(p) To cause the Exchange Offer to be made in the appropriate form
to permit registered New Senior Subordinated Notes to be offered in
exchange for the Senior Subordinated Notes and to comply with all
applicable federal and state securities laws in connection with the
Registered Exchange Offer.
(q) To use their respective best efforts to cause the Notes to be
eligible for trading through PORTAL and to obtain approval of the Notes by
DTC for "book-entry" transfer.
6. REPRESENTATIONS AND WARRANTIES. The Company and the Subsidiary
Guarantors represent and warrant to each of the Initial Purchasers that:
(a) The Offering Documents have been prepared in connection with the
Exempt Resales. The Preliminary Offering Memorandum and the Offering
Memorandum do not and any supplement or amendment thereto will not,
contain any untrue statement of a material fact or omit to state any
material fact required
-8-
10
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except that the representations and warranties contained in this paragraph
(a) shall not apply to statements in or omissions from the Offering
Documents (or any amendment or supplement thereto) made in reliance upon
information relating to the Initial Purchasers furnished to the Company in
writing by the Initial Purchasers expressly for use therein. The Company
acknowledges for all purposes under this Agreement that the statements set
forth in the last paragraph on the cover page, the legend on the bottom of
the inside cover page and in the first and second sentences of the third
paragraph, the first sentence of the fourth paragraph, the fourth sentence
of the sixth paragraph, the first sentence of the seventh paragraph and
the eighth and ninth paragraphs under the caption "Plan of Distribution"
in the Offering Memorandum constitute the only written information
finished to the Company by the Initial Purchasers expressly for use in the
Offering Documents (or any amendment or supplement thereto). No stop order
preventing the use of the Offering Documents, or any amendment or
supplement thereto, or any order asserting that any of the transactions
contemplated by this Agreement are subject to the registration
requirements of the Act, has been issued.
(b) Each of the Company and its wholly owned subsidiaries
("subsidiaries") (i) has been, and after giving effect to the Combination
pursuant to the terms of the Combination Agreement will be, duly organized
and validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has, and after giving effect to the
Combination pursuant to the terms of the Combination Agreement will have,
all requisite corporate or comparable power and authority to carry on its
business as described in the Offering Memorandum and to own, lease and
operate its properties, and (iii) is, and after giving effect to the
Combination pursuant to the terms of the Combination Agreement will be,
duly qualified and in good standing as a foreign corporation authorized to
do business in each other jurisdiction in which the nature of its business
or its ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a Material
Adverse Effect. As used herein, "Material Adverse Effect" shall mean, with
respect to any Person, any effect or group of related or unrelated effects
that (i) would be reasonably expected to result in a material adverse
effect on the assets, properties, business, results of operations,
condition (financial or otherwise) or prospects of the Company and its
subsidiaries, taken as a whole or (ii) would reasonably be expected to
interfere with, adversely affect or question the validity of the
execution, delivery and performance of any of the Operative Documents, the
issuance of the Notes and the Note Guarantees or the consummation of this
Agreement.
(c) All of the issued and outstanding shares of capital stock,
partnership interests or other interests of the Company and each of its
Subsidiaries have been duly and validly authorized and issued, and all of
the capital stock, partnership interests or other interests of each such
Subsidiary are owned, directly or indi-
-9-
11
rectly, by the Company. All such shares of capital stock, partnership
interests or other interests are fully paid and non-assessable and have
not been issued in violation of any preemptive or similar rights and are
owned free and clear of any security interest, mortgage, pledge, claim,
lien, limitation on voting rights or encumbrance (each, a "Lien"), except
for Liens granted pursuant to the New Credit Facility and except for
limitations voting rights with respect to shares of Atrium Parking, Inc.
held by the Company. Except as disclosed in the Offering Memorandum, there
are not currently, and will not be as a result of the Offering or the
consummation of the Combination pursuant to the terms of the Combination
Agreement, any outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or Liens related to or
entitling any person to purchase or otherwise to acquire any shares of the
capital stock of, or other securities evidencing equity ownership
interests in, the Company or any of its Subsidiaries.
(d) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Operative Documents
to which it is a party, and to consummate the transactions contemplated
hereby and thereby, including, without limitation, the corporate power and
authority to issue, sell and deliver the Senior Subordinated Notes to the
Initial Purchasers.
(e) The Subsidiary Guarantors have all necessary corporate or
comparable power and authority to enter into and perform their obligations
under the Operative Documents to which they are parties, and to issue,
sell and deliver the Note Guarantees to the Initial Purchasers.
(f) Neither the Company nor any of its Subsidiaries is, and after
giving effect to the Offering and the Combination pursuant to the terms of
the Combination Agreement will be, (i) in violation of its charter, bylaws
or other organizational documents, (ii) in default in the performance of
any obligation, agreement or condition contained in any bond, debenture,
note or any other evidence of indebtedness or in any other agreement,
indenture or instrument, in each case, which is material to the conduct of
the business of the Company, to which the Company is a party or by which
it or any of the Company's Subsidiaries or their respective property is
bound, or (iii) in violation of any local, state or federal law, statute,
ordinance, rule, regulation, requirement, judgment or court decree
(including, without limitation, environmental laws, statutes, ordinances,
rules, regulations, judgments or court decrees) applicable to the Company,
its Subsidiaries or any of its assets or properties (whether owned or
leased), other than violations or defaults that would not reasonably be
expected to have a Material Adverse Effect. To the best knowledge of the
Company, there exists no condition that, with notice, the passage of time
or otherwise, would constitute a default under any such document or
instrument, except for such defaults that could not reasonably be expected
to have a Material Adverse Effect.
-10-
12
(g) None of (i) the execution, delivery or performance by the
Company or the Subsidiary Guarantors of this Agreement and the other
Operative Documents, (ii) the performance by the Company of the
Combination Agreement and consummation of the Combination pursuant to the
terms of the Combination Agreement, (iii) the issuance and sale of the
Notes by the Company or the issuance of the Note Guarantees by the
Subsidiary Guarantors and (iv) the consummation by the Company of the
transactions described in the Offering Memorandum under the caption "Use
of Proceeds," will conflict with or constitute a breach of any of the
terms or provisions of, or, after giving effect to the Combination
pursuant to the terms of the Combination Agreement, will violate, conflict
with or constitute a breach of any of the terms or provisions of, or a
default under, or result in the imposition of a lien or encumbrance on any
properties of the Company or the Subsidiary Guarantors, as the case may
be, or an acceleration of indebtedness pursuant to, (1) the respective
charter, bylaws or other organizational documents of the Company or the
Subsidiary Guarantors, as the case may be, (2) except as disclosed in the
Offering Memorandum, any bond, debenture, note, indenture, mortgage, deed
of trust or other agreement or instrument to which the Company or the
Subsidiary Guarantors, as the case may be, is a party or by which any of
their respective property is bound, or (3) any law or administrative
regulation applicable to the Company or the Subsidiary Guarantors, as the
case may be, or any of their assets or properties, or any judgment, order
or decree of any court or governmental agency or authority entered in any
proceeding to which the Company or the Subsidiary Guarantors, as the case
may be, was or is now a party or to which any of their respective
properties may be subject. No consent, approval, authorization or order
of, or filing or registration with, any regulatory body, administrative
agency, or other governmental agency (except as securities or Blue Sky
laws of the various states may require) is required for the execution,
delivery and performance of the Operative Documents and the valid issuance
and sale of the Securities. No consents or waivers from any person are
required to consummate the transactions contemplated by the Operative
Documents or the Offering Documents, other than such consents and waivers
as have been or will be obtained prior to the Closing Date or, in the case
of the Registration Rights Agreement and the transactions contemplated
thereby, will be obtained and made under the Act, the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act") and state securities or
Blue Sky laws and regulations.
(h) This Agreement has been duly authorized and, when validly
executed by the Company and the Subsidiary Guarantors and (assuming the
due execution and delivery thereof by the Initial Purchasers) is a legally
valid and binding obligation of the Company and the Subsidiary Guarantors,
enforceable against each in accordance with its terms, except as the
enforceability thereof may be (i) subject to applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect which
affect the enforcement of creditors' rights generally, (ii) limited by
general principles of equity (whether considered in a proceeding at
-11-
13
law or in equity), and (iii) limited by securities laws prohibiting or
limiting the availability of, and public policy against, indemnification
or contribution.
(i) The Company and the Subsidiary Guarantors have duly authorized
the Indenture, and when the Company and the Subsidiary Guarantors have
duly executed and delivered the Indenture (assuming the due authorization,
execution and delivery thereof by the Trustee), the Indenture will be the
legally valid and binding obligation of each, enforceable against each in
accordance with its terms, except as the enforceability thereof may be (i)
subject to applicable bankruptcy, insolvency, moratorium, reorganization
or similar laws in effect which affect the enforcement of creditors'
rights generally, and (ii) limited by general principles of equity
(whether considered in a proceeding at law or in equity).
(j) The Company has duly authorized the Senior Subordinated Notes
and, when issued and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Initial Purchasers in
accordance with the terms hereof, will be the legally valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except as the enforceability thereof may be (i) subject
to applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws in effect which affect the enforcement of creditors' rights
generally, and (ii) limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(k) The Subsidiary Guarantors have duly authorized the Note
Guarantees to be endorsed on the Senior Subordinated Notes and, when the
Senior Subordinated Notes are issued and authenticated in accordance with
the terms of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms hereof, the Note Guarantees will
be the legally valid and binding obligations of the Subsidiary Guarantors,
enforceable against the Subsidiary Guarantors in accordance with their
terms, except as the enforceability thereof may be (i) subject to
applicable bankruptcy, insolvency, moratorium, reorganization or similar
laws in effect which affect the enforcement of creditors' rights
generally, and (ii) limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(l) The Company has duly authorized the New Senior Subordinated
Notes and, when issued and authenticated in accordance with the terms of
the Registered Exchange Offer and the Indenture, the New Senior
Subordinated Notes will be the legally valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except as the enforceability thereof may be (i) subject to
applicable bankruptcy, insolvency, moratorium, reorganization or similar
laws in effect which affect the enforcement of creditors' rights generally
and (ii) limited by general principles of equity (whether considered in a
proceeding at law or in equity).
-12-
14
(m) The Subsidiary Guarantors have duly authorized the Note
Guarantees to be endorsed on the New Senior Subordinated Notes and, when
the New Senior Subordinated Notes are issued and authenticated in
accordance with the terms of the Registered Exchange Offer and the
Indenture, the Note Guarantees will be the legally valid and binding
obligations of the Subsidiary Guarantors, enforceable against the
Subsidiary Guarantors in accordance with their terms, except as the
enforceability thereof may be (i) subject to applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect which
affect the enforcement of creditors' rights generally and (ii) limited by
general principles of equity (whether considered in a proceeding at law or
in equity).
(n) The Registration Rights Agreement has been duly authorized and
when validly executed by the Company and the Subsidiary Guarantors will be
(assuming the due execution and delivery thereof by the Initial
Purchasers) the legally valid and binding obligation of each, enforceable
against each in accordance with its terms, except as the enforceability
thereof may be (i) subject to applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws in effect which affect the
enforcement of creditors' rights generally and (ii) limited by general
principles of equity (whether considered in a proceeding at law or in
equity).
(o) The Combination Agreement has been duly and validly authorized
by the Company and is a legally valid and binding agreement of the
Company, enforceable against it in accordance with its terms, except as
enforcement may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, moratorium, reorganization or other similar laws
and court decisions affecting or relating to the rights of creditors
generally or by general principles of equity, and except as rights to
indemnification may be limited by applicable law.
(p) The New Credit Facility has been duly authorized and when
validly executed by the Company and the subsidiaries of the Company that
are obligors thereunder will be the legally valid and binding obligation
of each, enforceable against each in accordance with its terms, except as
the enforceability thereof may be (i) subject to applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect which
affect the enforcement of creditors' rights generally and (ii) limited by
general principles of equity (whether considered in a proceeding at law or
in equity).
(q) There is, and after giving effect to the Combination pursuant to
the terms of the Combination Agreement will be, (i) no action, suit,
proceeding or investigation before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now pending,
threatened, or, to the knowledge of the Company, contemplated to which the
Company or the Subsidiary Guarantors is or may be a party or to which the
business or property of the Company or the Subsidiary Guarantors is or,
after giving effect to the Combination pursuant to the terms of the
Combination Agreement, may be subject, (ii) no statute, rule, regula-
-13-
15
tion or order that has been enacted, adopted or issued by any governmental
agency or, to the best knowledge of the Company, proposed by any
governmental body or (iii) no injunction, restraining order or order of
any nature issued by a federal or state court of competent jurisdiction to
which the Company or the Subsidiary Guarantors is or may be subject that,
in the case of clauses (i), (ii) and (iii) above, (1) is required to be
disclosed in the Offering Memorandum and that is not so disclosed, (2)
could reasonably be expected to have a Material Adverse Effect or (3)
would interfere with or adversely affect the issuance of the Senior
Subordinated Notes or the Note Guarantees.
(r) There are no holders of any security of the Company or the
Subsidiary Guarantors who by reason of the execution by the Company and
the Subsidiary Guarantors of this Agreement or any other Operative
Document or the consummation of the transactions contemplated hereby and
thereby, have the right to request or demand that the Company or the
Subsidiary Guarantors register under the Act, or analogous foreign laws
and regulations, securities held by them.
(s) The Company has delivered to the Initial Purchasers true and
correct executed copies of the Combination Agreement and all documents and
agreements related thereto and there have been no amendments, alterations,
modifications or waivers thereto or in the exhibits or schedules thereto,
except as have been delivered to the Initial Purchasers.
(t) The Company is not, and after giving effect to the Combination
pursuant to the terms of the Combination Agreement will not be, involved
in any material labor dispute nor, to the knowledge of the Company, is any
material dispute threatened which, if such dispute were to occur, could
have a Material Adverse Effect.
(u) The Company has not violated any safety or similar law
applicable to its business, nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
or the rules and regulations promulgated thereunder, except for such
instances of noncompliance that, either singly or in the aggregate, could
not have a Material Adverse Effect.
(v) Each of the Company and the Subsidiary Guarantors is, and after
giving effect to the Combination pursuant to the terms of the Combination
Agreement will be, in compliance with all applicable existing federal,
state, local and foreign laws and regulations (collectively,
"Environmental Laws") relating to the protection of human health or the
environment or imposing liability or standards of conduct concerning any
Hazardous Material (as defined below), except for such instances of
noncompliance that, either singly or in the aggregate, could not have a
Material Adverse Effect. The term "Hazardous Material" means (i)
-14-
16
any "hazardous substance" as defined by the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, (ii) any
"hazardous waste" as defined by the Resource Conservation and Recovery
Act, as amended, (iii) any petroleum or petroleum product, (iv) any
polychlorinated biphenyl and (v) any pollutant or contaminant or
hazardous, dangerous or toxic chemical, material, waste or substance
regulated under or within the meaning of any other Environmental Law.
Except as set forth in the Offering Memorandum, there is no alleged
liability, or, to the best knowledge and information of the Company,
potential liability (including, without limitation, alleged or potential
liability for investigatory costs, cleanup costs, governmental response
costs, natural resource damages, property damages, personal injuries, or
penalties) of the Company or any of its Subsidiaries arising out of, based
on, or resulting from (1) the presence or release into the environment of
any Hazardous Material at any location currently or previously owned by
the Company or any of its Subsidiaries or at any location currently or
previously used or leased by the Company or any of its Subsidiaries, or
(2) any violation or alleged violation of any Environmental Law, except in
each case with respect to clause (1) and (2), alleged or potential
liabilities that, singly or in the aggregate, could not have a Material
Adverse Effect.
(w) The Company and each of its Subsidiaries have and, after giving
effect to the Combination pursuant to the terms of the Combination
Agreement, will have, such permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("permits"),
including, without limitation, under any applicable Environmental Laws, as
are necessary or will be necessary, to own, lease and operate their
respective properties and to conduct their respective businesses in the
manner described in the Offering Memorandum, except for those permits the
absence of which could not reasonably be expected to have a Material
Adverse Effect; the Company and each of its Subsidiaries have and, after
giving effect to the Combination pursuant to the terms of the Combination
Agreement, will have, fulfilled and performed all of its obligations with
respect to such permits, except for such obligations the failure of which
to be fulfilled or performed could not reasonably be expected to have a
Material Adverse Effect and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of the holder of
any such permit, except for such event, that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect; and, except as described in the Offering Memorandum, such permits
contain no restrictions that are or will be materially burdensome to the
Company or any of its Subsidiaries.
(x) The Company and its Subsidiaries own or possess free and clear
of all Liens or has the right to use free and clear of any rights of third
parties that adversely affect such use by the Company and its Subsidiaries
and, after giving effect to the Combination pursuant to the terms of the
Combination Agreement, will own or possess free and clear of all Liens or
have the right to use free and clear of
-15-
17
any rights of third parties that adversely affect such use by the Company
and its Subsidiaries, all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names (collectively,
"Intellectual Property") presently employed by either of them or which are
proposed to be employed by either of them in connection with the
businesses now operated by either of them or which are proposed to be
operated by them, except where the failure to own or possess such
Intellectual Property could not, either singly or in the aggregate, have a
Material Adverse Effect. The use of such Intellectual Property in
connection with the business and operations of the Company and its
Subsidiaries does not to the Company's knowledge, infringe on the rights
or claimed rights of any person. No other person is, to the Company's
knowledge, infringing upon any of the Intellectual Property of the Company
or has notified the Company or any of its Subsidiaries that it is claiming
ownership of, or the right to use any Intellectual Property owned by the
Company or its Subsidiaries. The Company and its Subsidiaries have taken
all reasonable steps to protect the Intellectual Property from
infringement by any other person, except where the failure to take such
steps would not, individually or in the aggregate, have a Material Adverse
Effect on the Company. Other than in connection with the use of so-called
"off-the-shelf" software and except as otherwise disclosed in the Offering
Memorandum, neither the Company nor its Subsidiaries are obligated or
under any liability whatsoever to make any payment in excess of $150,000
per fiscal year, in the aggregate, by way of royalties, fees or otherwise
to any persons with respect to the use of the Intellectual Property.
Neither the Company nor any of its Subsidiaries has received (i) any
notice of infringement of or conflict with assessed rights of others with
respect to any Intellectual Property or (ii) any notice of an action or
proceeding seeking to limit, cancel or question the validity of any
Intellectual Property, which singly or in the aggregate, if the subject of
any unfavorable decision, ruling or finding, might have a Material Adverse
Effect on the Company.
(y) All federal and state tax returns required to be filed by the
Company or any of its Subsidiaries in any jurisdiction have been filed,
and all material taxes (including, without limitation, withholding taxes,
penalties and interest, assessments, fees and other charges due or claimed
to be due from any taxing authority) have been paid other than those being
contested in good faith and for which adequate reserves have been
provided. To the knowledge of the Company, there are, and after giving
effect to the Combination pursuant to the terms of the Combination
Agreement will be, no material proposed additional tax assessments against
the Company, any of its Subsidiaries or the assets or property of the
Company or any of its Subsidiaries.
(z) The Company and its Subsidiaries have and, after giving effect
to the Combination pursuant to the terms of the Combination Agreement,
will have all certificates, consents, exemptions, orders, permits,
franchises, licenses,
-16-
18
authorizations, or other approvals (each, an "Authorization") of and from,
and has made all declarations and filings with and notices to, all
federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals,
necessary or required to own, lease, license, operate and use their
respective properties and assets and to conduct their business in the
manner described in the Offering Memorandum except for such Authorizations
the absence of which could not reasonably be expected to have a Material
Adverse Effect on the Company and except with respect to any parking
facility contracts with governmental entities; all such Authorizations are
and, after giving effect to the Combination pursuant to the terms of the
Combination Agreement, will be valid and in full force and effect; the
Company and its Subsidiaries are in compliance with the terms and
conditions of all such Authorizations and with the rules and regulations
of the regulatory authorities and governing bodies having jurisdiction
with respect thereto; and neither the Company nor any of its Subsidiaries
has received any notice, or has any knowledge or belief (or any basis
therefor), that any governmental body or agency is considering limiting,
suspending or revoking any such Authorization.
(aa) Except as set forth in the Offering Memorandum and except as
could not reasonably be expected to have a Material Adverse Effect on the
Company, (i) the Company and its Subsidiaries have and, after giving
effect to the Combination pursuant to the terms of the Combination
Agreement, will have good and marketable title, free and clear of all
Liens except Liens for taxes not yet due and payable and Liens granted
pursuant to and permitted by the New Credit Facility, to all property and
assets described in the Offering Memorandum as being owned by each of
them. Except for leases of parking facilities, all material leases to
which the Company or any of its Subsidiaries is a party are and, after
giving effect to the Combination pursuant to the terms of the Combination
Agreement, will be legally valid and binding and, to the best of the
Company's knowledge, no default has occurred or is continuing thereunder
which could reasonably be expected to have a Material Adverse Effect on
the Company, and the Company and its Subsidiaries enjoy peaceful and
undisturbed possession under all such leases to which the Company and its
Subsidiaries are a party as lessee with such exceptions as do not
materially interfere with the use currently made by the Company or its
Subsidiaries, as the case may be.
(ab) The Company maintains and, after giving effect to the
Combination pursuant to the terms of the Combination Agreement, will
endeavor to maintain adequate insurance customary for the parking
facilities management industry for its business and the value of its
properties (including, without limitation, public liability insurance,
third party property damage insurance and replacement value insurance),
and, to the best of the Company's knowledge, all such insurance is
outstanding and in force as of the date hereof.
-17-
19
(ac) The financial statements, together with related notes forming
part of the Offering Documents (and any amendment or supplement thereto),
present fairly the consolidated financial position, results of operations
and changes in financial position of the Company on the basis stated in
the Offering Documents at the respective dates or for the respective
periods to which they apply, and such financial statements and related
schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein and the other financial and
statistical information and data set forth in the Offering Documents (and
any amendment or supplement thereto) is, in all material respects,
accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company. The pro
forma financial data are, in all material respects, accurately presented
and prepared in good faith on the basis of the assumptions described
therein, and such assumptions are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(ad) The Company and the Subsidiary Guarantors maintain and, after
giving effect to the Combination pursuant to the terms of the Combination
Agreement, will maintain a system of internal accounting controls
sufficient to provide assurance that: (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to maintain accountability for assets; and (iii) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect thereto.
(ae) Subsequent to the dates for which information is given in the
Offering Documents and up to the Closing Date, unless set forth in the
Offering Memorandum or the Company has notified the Initial Purchasers:
(i) neither the Company nor the Subsidiary Guarantors has incurred any
liabilities or obligations, direct or contingent, which are or, after
giving effect to the Combination pursuant to the terms of the Combination
Agreement, could reasonably be expected to have a Material Adverse Effect
on the Company or the Subsidiary Guarantors, nor has either entered into
any material transactions not in the ordinary course of business; (ii)
there has not been any decrease in the Company's or the Subsidiary
Guarantors' capital stock or any increase in long-term indebtedness to
meet working capital requirements or any material increase in short-term
indebtedness of the Company or the Subsidiary Guarantors or any payment of
or declaration to pay any dividends or any other distribution with respect
to the Company's or the Subsidiary Guarantors' capital stock; and (iii)
there has not been any event or series of events that could reasonably be
expected to have a Material Adverse Effect.
(af) Prior to and immediately after the issuance of the Senior
Subordinated Notes and, after giving effect to the Combination pursuant to
the terms of
-18-
20
the Combination Agreement, (i) the present fair saleable value of the
assets of the Company and its subsidiaries exceeded and will exceed the
amount that will be required to be paid on, or in respect of, the debts
and other liabilities (including contingent liabilities) of the Company
and its subsidiaries as they become absolute and matured, (ii) the assets
of the Company and its subsidiaries do not constitute and will not
constitute unreasonably small capital to carry out their businesses as
conducted or as proposed to be conducted, and (iii) the Company and its
subsidiaries do not intend to, or believe that it will, incur debts or
other liabilities beyond its ability to pay such debts and liabilities as
they mature. In computing the amount of such contingent liabilities at any
time, it is intended that such liabilities will be computed at the amount
that, in light of all the facts and circumstances existing at such time,
represents the amount than can reasonably be expected to become an actual
or matured liability.
(ag) Except as would not otherwise be unlawful, the Company has not
(i) taken, directly or indirectly, any action designed to cause or to
result in, or that has constituted or which might reasonably be expected
to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Notes or
(ii) since the date of the Preliminary Offering Memorandum (A) sold, bid
for, purchased, or paid anyone other than the Initial Purchasers any
compensation for soliciting purchases of, the Senior Subordinated Notes or
(B) paid or agreed to pay to any person any compensation for soliciting
another to purchase any other securities of the Company.
(ah) Neither the Company nor any of its subsidiaries nor any agent
thereof acting on the behalf of them, has taken or will take any action
that might cause this Agreement or the issuance or sale of the Notes to
violate Regulation G (12 C.F.R. Part 207), Regulation T (12 C.F.R. Part
220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part
224) of the Board of Governors of the Federal Reserve System, in each case
as in effect now or as the same may hereafter be in effect on the Closing
Date.
(ai) Neither the Company nor any of its subsidiaries is or, after
giving effect to the Combination pursuant to the terms of the Combination
Agreement, will be an "investment company" or a company "controlled" by an
investment company within the meaning of the Investment Company Act of
1940, as amended.
(aj) The accountants, Ernst & Young LLP and Altschuler, Melvoin and
Glasser, LLP, that have certified the financial statements and supporting
schedules included in the Offering Memorandum are independent public
accountants, as required by the Act and the Exchange Act. The historical
financial statements, together with related schedules and notes, set forth
in the Offering Memorandum comply as to form in all material respects with
the requirements applicable to registration statements on Form S-1 under
the Act.
-19-
21
(ak) When the Senior Subordinated Notes are issued and delivered
pursuant to this Agreement, such Senior Subordinated Notes will not be of
the same class (within the meaning of Rule 144A under the Act) as
securities of the Company that are listed on a national securities
exchange registered under Section 6 of the Exchange Act or that are quoted
in a United States automated inter-dealer quotation system.
(al) Assuming (i) that the representations and warranties of the
Initial Purchasers in Section 7 hereof are true, (ii) that the Initial
Purchasers complied with their covenants as set forth in Section 7 hereof,
(iii) that none of the Eligible Purchasers is an affiliate of the Company
and (iv) that each of the Eligible Purchasers is a QIB or is purchasing
the Senior Subordinated Notes pursuant to the exemption provided for under
Regulation S, the purchase and resale of the Senior Subordinated Notes
pursuant hereto (including pursuant to be Exempt Resales) is exempt from
the registration requirements of the Act. No form of general solicitation
or general advertising was used by the Company or any of its
representatives (other than the Initial Purchasers, as to whom the Company
makes no representation) in connection with the offer and sale of the
Senior Subordinated Notes, including, but not limited to, articles,
notices or other communications published in any newspaper, magazine, or
similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or
general advertising. No securities of the same class as the Senior
Subordinated Notes have been issued and sold by the Company within the
six-month period immediately prior to the date hereof.
(am) The execution and delivery of this Agreement, the other
Operative Documents and the sale of the Securities to be purchased by the
Eligible Purchasers will not involve any prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Code with respect
to any employee benefit plan of the Company. The representation made by
the Company in the preceding sentence is made in reliance upon and subject
to the accuracy of, and compliance with, the representations and covenants
made or deemed made by the Eligible Purchaser as set forth in the Offering
Documents under the Section entitled "Notice to Investors."
(an) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date contains, and as of the Closing Date will
contain, all the information specified in, and meeting the requirements
of, Rule 144A(d)(4) under the Act.
(ao) None of the Company, its subsidiaries or any of its or their
affiliates or any person acting on its or their behalf has engaged or will
engage in any directed selling efforts within the meaning of Regulation S
with respect to the Senior Subordinated Notes, and the Company, its
subsidiaries and its or their affiliates and all persons acting on its or
their behalf have complied or will comply
-20-
22
with the offering restrictions requirements of Regulation S in connection
with the offering of the Senior Subordinated Notes outside the United
States.
(ap) There is no "substantial U.S. market interest" as defined in
rule 902(n) of Regulation S for the Senior Subordinated Notes or any
security of the same class as the Senior Subordinated Notes.
(aq) The sale of the Senior Subordinated Notes in offshore
transactions pursuant to Regulation S is not part of a plan or scheme to
evade the registration provisions of the Act.
7. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE INITIAL
PURCHASERS. Each of the Initial Purchasers, severally and not jointly,
represents and warrants to the Company as follows:
(a) Such Initial Purchaser is a QIB with such knowledge and
experience in financial and business matters as is necessary in order to
evaluate the merits and risks of an investment in the Senior Subordinated
Notes.
(b) Such Initial Purchaser (i) is not acquiring the Senior
Subordinated Notes with a view to any distribution thereof that would
violate the Act or the securities laws of any state of the United States
or any other applicable jurisdiction and (ii) will be reoffering and
reselling the Senior Subordinated Notes only to QIBs in reliance on the
exemption from the registration requirements of the Act provided by Rule
144A and to persons outside the United States in reliance on the exemption
from the registration requirements of the Act provided by Regulation S.
(c) No form of general solicitation or general advertising (within
the meaning of Regulation D under the Act) has been or will be used by the
Initial Purchasers or any of its representatives in connection with the
offer and sale of any of the Senior Subordinated Notes, including, but not
limited to, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising.
(d) Such Initial Purchaser agrees that, in connection with the
Exempt Resales, it will solicit offers to buy the Senior Subordinated
Notes only from, and will offer to sell the Senior Subordinated Notes only
to, Eligible Purchasers. Such Initial Purchaser further agrees that it
will offer to sell the Senior Subordinated Notes only to, and will solicit
offers to buy the Senior Subordinated Notes only from, persons who in
purchasing such Senior Subordinated Notes will be deemed to have
represented and agreed (i) if such Eligible Purchasers are QIBs, that they
are purchasing the Senior Subordinated Notes for their own account or
accounts with respect to which they exercise sole investment discretion
and that they or such accounts are QIBs, (ii) that such Senior
Subordinated Notes will not have
-21-
23
been registered under the Act and may be resold, pledged or otherwise
transferred, only (1) (a) inside the United States to a person who the
seller reasonably believes is a "qualified institutional buyer" within the
meaning of Rule 144A under the Act in a transaction meeting the
requirements of Rule 144A, (b) in a transaction meeting the requirements
of Rule 144A under the Act, (c) outside the United States to a foreign
person in a transaction meeting the requirements of Rule 904 under the Act
or (d) in accordance with another exemption from the registration
requirements of the Act (and based in the case of clauses (b) and (c)
above upon an opinion of counsel if the Company so requests), (2) to the
Company or (3) pursuant to an effective registration statement under the
Act, in each case, in accordance with any applicable securities laws of
any state of the United States or any other applicable jurisdiction, and
(iii) that the holder will, and each subsequent holder is required to,
notify purchaser from it of the security evidenced thereby of the resale
restrictions set forth in (ii) above. Accordingly, the Initial Purchasers
represents and agrees that neither it, its affiliates nor any persons
acting on its or their behalf has engaged or will engage in any directed
selling efforts within the meaning of Rule 901(b) of Regulation S with
respect to the Senior Subordinated Notes, and it, or its affiliates and
all persons acting on its or their behalf have complied and will comply
with the offering restrictions requirements of Regulation S.
(e) Such Initial Purchaser represents and agrees that the Senior
Subordinated Notes offered and sold in reliance on Regulation S have been
and will be offered and sold only in offshore transactions and that such
securities have been and will be represented upon issuance by a global
security that may not be exchanged for definitive securities until the
expiration of the Restricted Period and only upon certification of
beneficial ownership of the securities by a non-U.S. person or a U.S.
person who purchased such securities in a transaction that was exempt from
the registration requirements of the Act, which U.S. person will acquire
an interest in a Transfer Restricted Security.
(f) Such Initial Purchaser agrees that, at or prior to confirmation
of a sale of Senior Subordinated Notes (other than a sale pursuant to Rule
144A), it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases the Senior
Subordinated Notes from it during the Restricted Period a confirmation or
notice to substantially the following effect:
"The Senior Subordinated Notes covered hereby have not been
registered under the U.S. Securities Act of l933, as amended (the
"Securities Act") and may not be offered and sold within the United
States or to, or for the account or benefit of, U.S. persons (i) as
part of their distribution at any time or (ii) otherwise until 40
days after the later of the commencement of the offering and the
closing date, except in either case in accordance with
-22-
24
Regulation S (or Rule 144A if available) under the Securities Act.
Terms used above have the same meanings assigned to them in
Regulation S."
(g) Such Initial Purchaser agrees not to cause any advertisement of
the Senior Subordinated Notes to be published in any newspaper or
periodical or posted in any public place and not to issue any circular
relating to the Senior Subordinated Notes, except such advertisements as
include the statements required by Regulation S.
(h) The sale of the Senior Subordinated Notes in offshore
transactions pursuant to Regulation S is not part of a plan or scheme to
evade the registration provisions of the Act.
(i) Such Initial Purchaser is not a pension or welfare plan (as
defined in Section 3 of ERISA) and is not acquiring the Senior
Subordinated Notes on behalf of a pension or welfare plan.
(j) Prior to consummating the Eligible Resales, the Initial
Purchasers shall have delivered a copy of the Offering Memorandum and any
supplements or amendments thereto to each Eligible Purchaser.
(k) Such Initial Purchaser also understands that the Company and,
for purposes of the opinions to be delivered to the Initial Purchasers
pursuant to Sections 9(d) and (e) hereof, counsel to the Company and
counsel to the Initial Purchasers will rely upon the accuracy and truth of
the foregoing representations and such Initial Purchasers hereby consent
to such reliance.
8. INDEMNIFICATION.
(a) The Company and each Subsidiary Guarantor agree, jointly and
severally, to indemnify and hold harmless (i) each Initial Purchaser, its
directors, its officers and each person, if any, who controls such Initial
Purchasers within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments (including, without limitation, any legal or
other expenses reasonably incurred in connection with investigating or
defending any matter, including any action, that could give rise to any
such losses, claims, damages, liabilities or judgments) caused by any
untrue statement or alleged untrue statement of a material fact contained
in the Offering Memorandum (or any amendment or supplement thereto), the
Preliminary Offering Memorandum or any Rule 144A Information provided by
the Company or any Subsidiary Guarantor to any holder or prospective
purchaser of Senior Subordinated Notes pursuant to Section 5(n) or caused
by 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 light of the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by any such untrue statement or
-23-
25
omission or alleged untrue statement or omission based upon information
relating to the Initial Purchasers furnished in writing to the Company by
such Initial Purchaser; provided, however, that the foregoing indemnity
agreement with respect to any Preliminary Offering Memorandum shall not
inure to the benefit of any Initial Purchasers who failed to deliver a
Final Offering Memorandum (as then amended or supplemented, provided by
the Company to the several Initial Purchasers in the requisite quantity
and on a timely basis to permit proper delivery on or prior to the Closing
Date) to the person asserting any losses, claims, damages and liabilities
and judgments caused by any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Offering Memorandum, or
caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, if such material misstatement or omission or
alleged material misstatement or omission was cured in the Final Offering
Memorandum.
(b) The Initial Purchasers agree to indemnify and hold harmless the
Company and the Subsidiary Guarantors, and their respective directors and
officers and each person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) the Company or
the Subsidiary Guarantors, to the same extent as the foregoing indemnity
from the Company and the Subsidiary Guarantors to the Initial Purchasers
but only with reference to information relating to the Initial Purchasers
furnished in writing to the Company by the Initial Purchasers expressly
for use in the Preliminary Offering Memorandum or the Offering Memorandum.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b)
(the "indemnified party"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party shall assume the defense of
such action, including the employment of counsel reasonably satisfactory
to the indemnified party and the payment of all fees and expenses of such
counsel, as incurred (except that in the case of any action in respect of
which indemnity may be sought pursuant to both Sections 8(a) and 8(b), the
Initial Purchasers shall not be required to assume the defense of such
action pursuant to this Section 8(c), but may employ separate counsel and
participate in the defense thereof, but the fees and expenses of such
counsel, except as provided below, shall be at the expense of the Initial
Purchasers). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of the
indemnified party unless (i) the employment of such counsel shall have
been specifically authorized in writing by the indemnifying party, (ii)
the indemnifying party shall have failed to assume the defense of such
action or employ counsel reasonably satisfactory to the indemnified party
or (iii) the named parties to any such action (including any impleaded
parties) include both the indemnified party and the indemnifying party,
and the in-
-24-
26
demnified party shall have been advised by such counsel that there may be
one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such
action on behalf of the indemnified party). In any such case, the
indemnifying party shall not, in connection with any one action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred.
Such firm shall be designated in writing by Donaldson, Lufkin & Jenrette
Securities Corporation, in the case of the parties indemnified pursuant to
Section 8(a), and by the Company, in the case of parties indemnified
pursuant to Section 8(b). The indemnifying party shall indemnify and hold
harmless the indemnified party from and against any and all losses,
claims, damages, liabilities and judgments by reason of any settlement of
any action (i) effected with its written consent or (ii) effected without
its written consent if the settlement is entered into more than thirty
business days after the indemnifying party shall have received a request
from the indemnified party for reimbursement for the fees and expenses of
counsel (in any case where such fees and expenses are at the expense of
the indemnifying party) and, prior to the date of such settlement, the
indemnifying party shall have failed to comply with such reimbursement
request. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement or compromise of, or consent
to the entry of judgment with respect to, any pending or threatened action
in respect of which the indemnified party is or could have been a party
and indemnity or contribution may be or could have been sought hereunder
by the indemnified party, unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of the indemnified
party.
(d) To the extent the indemnification provided for in this Section 8
is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to herein, then
each 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 judgments (i)
in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Subsidiary Guarantors, on the one hand,
and the Initial Purchasers on the other hand from the offering of the
Senior Subordinated Notes or (ii) if the allocation provided by clause
8(d)(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause 8(d)(i) above but also the relative fault of the Company and the
Subsidiary Guarantors, on the one hand, and the Initial Purchasers, on the
other hand, in connection with the statements or
-25-
27
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Subsidiary Guarantors,
on the one hand and the Initial Purchasers, on the other hand, shall be
deemed to be in the same proportion as the total net proceeds from the
offering of the Senior Subordinated Notes (after underwriting discounts
and commissions, but before deducting expenses) received by the Company,
and the total discounts and commissions received by the Initial Purchasers
bear to the total price to investors of the Senior Subordinated Notes, in
each case as set forth in the table on the cover page of the Offering
Memorandum. The relative fault of the Company and the Subsidiary
Guarantors, on the one hand, and the Initial Purchasers, on the other
hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Company or the Subsidiary Guarantors, on the one hand, or the
Initial Purchasers, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Subsidiary Guarantors, and the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant to
this Section 8(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. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
matter, including any action, that could have given rise to such losses,
claims, damages, liabilities or judgments. Notwithstanding the provisions
of this Section 8, the Initial Purchasers shall not be required to
contribute any amount in excess of the amount by which the total discounts
and commissions received by such Initial Purchaser exceed the amount of
any damages which the Initial Purchasers has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
(e) The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
9. CONDITIONS OF THE INITIAL PURCHASERS' OBLIGATIONS. The several
obligations of the Initial Purchasers to purchase and pay for the Senior
Subordinated Notes as provided herein, shall be subject to the satisfaction of
each of the following conditions:
-26-
28
(a) All the representations and warranties of the Company and the
Subsidiary Guarantors contained in this Agreement shall be true and
correct on the Closing Date, with the same force and effect as if made on
and as of the date hereof and the Closing Date, respectively. Each of the
Company and the Subsidiary Guarantors shall have performed or complied
with its obligations and agreements and satisfied the conditions to be
performed, complied with or satisfied by it on or prior to the Closing
Date.
(b) (1) The Offering Memorandum shall have been printed and copies
distributed to the Initial Purchasers not later than 9:00 a.m., New York
City time, on the day following the date of this Agreement, or at such
later date and time as to which the Initial Purchasers may approve;
(2) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency that would, as of the Closing Date, prevent the
issuance of the Senior Subordinated Notes or the Note Guarantees;
(3) No injunction, restraining order or order of any nature by
a federal or state court of competent jurisdiction shall have been issued
as of the Closing Date or, to the best knowledge of the Company,
threatened against, the Company or the Subsidiary Guarantors which would
prevent the issuance of the Senior Subordinated Notes or the Note
Guarantors; and
(4) No stop order preventing the use of the Offering
Documents, or any amendment or supplement thereto, or suspending the
qualification or exemption from qualification of the Senior Subordinated
Notes for sale in any jurisdiction designated by the Initial Purchasers
pursuant to Section 5(f) hereof shall have been issued and no proceedings
for that purpose shall have been commenced or shall be pending, threatened
or, to the Company's knowledge contemplated.
(c) (1) (i) Since the date of the latest balance sheet in the
Offering Memorandum, there shall not have been any material adverse
change, or any development involving a prospective material adverse
change, in the assets, properties, business, results of operations,
condition (financial or otherwise) or prospects, whether or not arising in
the ordinary course of business, of the Company and its subsidiaries,
taken as a whole, (ii) since the date of the latest balance sheet included
in the Offering Memorandum, there shall not have been any material change,
or any development that is reasonably likely to result in a material
change, in the capital stock or in the long-term debt, or material
increase in short-term debt, of the Company and its subsidiaries, taken as
a whole, from that set forth in the Offering Memorandum and (iii) except
as set forth in the Offering Memorandum, neither the Company nor any of
its subsidiaries shall have any liability or obligation, direct or
contingent, which is material to the Company;
-27-
29
(2) The Company and the Subsidiary Guarantors shall not have
any material liability or obligation, direct or contingent, other than
those reflected in the Offering Memorandum; and
(3) The Initial Purchasers shall have received certificates
dated the Closing Date, signed on behalf of the Company and each of the
Subsidiary Guarantors by (i) the President and (ii) the Chief Financial
Officer of the Company and the Subsidiary Guarantors, confirming all
matters set forth in Sections 9(a), (b) and (c) hereof.
(d) On the Closing Date, the Initial Purchasers shall have received
an opinion (satisfactory to the Initial Purchasers and counsel to the
Initial Purchasers) dated the Closing Date, of Wachtell, Lipton, Rosen &
Katz, special counsel for the Company and the Subsidiary Guarantors,
substantially to the effect that:
(1) The Company (i) is duly organized and validly existing as
a corporation in good standing under the laws of its jurisdiction
and (ii) has all requisite corporate power and authority to carry on
its business as described in the Offering Memorandum and to own,
lease and operate its properties.
(2) The Company has all necessary corporate power and
authority to enter into and perform its obligations under the
Operative Documents, and to issue, sell and deliver the Notes to the
Initial Purchasers.
(3) The Company is not, and after giving effect to the
Offering will not be, (i) in violation of its charter or bylaws (ii)
except as disclosed in the Offering Memorandum, in default in the
performance of any obligation, agreement or condition contained in
any bond, debenture, note or any other evidence of indebtedness or
in any other agreement, indenture or instrument, in each case known
to counsel which is material to the conduct of the business of the
Company, or by which the Company or its property is bound, or (iii)
in violation of any local, state or federal law, statute, ordinance,
rule, regulation, requirement, judgment or court decree (including,
without limitation, environmental laws, statutes, ordinances, rules,
regulations, judgments or court decrees) in each case under the
Subject Laws (the laws of the State of New York, the laws of the
State of Delaware and the laws of the United States (the "Subject
Laws")), applicable to the Company, its subsidiaries or any of its
assets or properties (whether owned or leased), other than
violations or defaults that would not reasonably be expected to have
a Material Adverse Effect. To the best knowledge of such counsel,
there exists no condition that, with notice, the passage of time or
otherwise, would constitute a default under any such document or
instrument, except for such defaults that would not reasonably be
expected
-28-
30
to have a Material Adverse Effect.
(4) None of (i) the execution, delivery or performance by the
Company of this Agreement and the other Operative Documents and (ii)
the issuance of the Notes by the Company will conflict with or
constitute a breach of any of the terms or provisions of any of the
terms or provisions of, or a default under, or result in the
imposition of a lien or encumbrance on any properties of the
Company, or an acceleration of indebtedness pursuant to, (1) the
charter or bylaws of the Company, (2) to the best of its knowledge,
any bond, debenture, note, indenture, mortgage, deed of trust or
other agreement or instrument in each case known to such counsel and
which is material in the conduct of the business of the Company, by
which the Company or its property is bound, or (3) any law or
administrative regulation, in each case under the Subject Laws
applicable to the Company or any of its assets or properties, or, to
the knowledge of such counsel, any judgment, order or decree of any
court or governmental agency or authority entered in any proceeding
to which The Company was or is now a party or to which any of its
properties may be subject except as would not reasonably be expected
to have a Material Adverse Effect.
(5) This Agreement has been duly authorized and, when validly
executed by the Company (assuming the due execution and delivery
thereof by the Initial Purchasers) will be a legally valid and
binding obligation of the Company, enforceable against the Company
in accordance with its terms, except that (i) such enforceability
may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, (whether general or specific) or similar
laws now or hereafter in effect relating to or affecting creditors'
rights and remedies generally, (ii) such enforceability may be
limited by the effects of general principles of equity and by the
discretion of the court before which any proceeding therefor may be
brought (whether such proceeding is at law or in a bankruptcy
proceeding), (iii) rights to contribution or indemnification may be
limited by the laws, rules or regulations or any governmental
authority or agency thereof or by public policy, and (iv) waivers as
to usury, stay or extension laws may be unenforceable.
(6) The Company has duly authorized the Indenture, and when
the Company has duly executed and delivered the Indenture (assuming
the due authorization, execution and delivery thereof by the
Trustee), the Indenture will be the legally valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except that (i) such enforceability may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, (whether general or specific) or similar
laws now or hereafter in effect relating to or affecting creditors'
rights and remedies generally, (ii) such enforceability may be
limited by
-29-
31
the effects of general principles of equity and by the discretion of
the court before which any proceeding therefor may be brought
(whether such proceeding is at law or in a bankruptcy proceeding),
(iii) rights to contribution or indemnification may be limited by
the laws, rules or regulations or any governmental authority or
agency thereof or by public policy, and (iv) waivers as to usury,
stay or extension laws may be unenforceable.
(7) The Company has duly authorized the Notes to be endorsed
on the Senior Subordinated Notes and, when the Senior Subordinated
Notes are issued and authenticated in accordance with the terms of
the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms hereof, the Notes will be
the legally valid and binding obligations of The Company,
enforceable against the Company in accordance with their terms,
except that (i) such enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium,
(whether general or specific) or similar laws now or hereafter in
effect relating to or affecting creditors' rights and remedies
generally, (ii) such enforceability may be limited by the effects of
general principles of equity and by the discretion of the court
before which any proceeding therefor may be brought (whether such
proceeding is at law or in a bankruptcy proceeding), (iii) rights to
contribution or indemnification may be limited by the laws, rules or
regulations or any governmental authority or agency thereof or by
public policy, and (iv) waivers as to usury, stay or extension laws
may be unenforceable.
(8) The Company has duly authorized the Notes to be endorsed
on the New Senior Subordinated Notes and, when the New Senior
Subordinated Notes are issued and authenticated in accordance with
the terms of the Registered Exchange Offer and the Indenture, the
Notes will be the legally valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except that (i) such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, (whether general or specific) or similar laws now or
hereafter in effect relating to or affecting creditors' rights and
remedies generally, (ii) such enforceability may be limited by the
effects of general principles of equity and by the discretion of the
court before which any proceeding therefor may be brought (whether
such proceeding is at law or in a bankruptcy proceeding), (iii)
rights to contribution or indemnification may be limited by the
laws, rules or regulations or any governmental authority or agency
thereof or by public policy, and (iv) waivers as to usury, stay or
extension laws may be unenforceable.
(9) The Registration Rights Agreement has been duly authorized
and when validly executed by the Company will be (assuming the due
execution and delivery thereof by the Initial Purchasers) the
legally valid
-30-
32
and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except that (i) such
enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, (whether general or
specific) or similar laws now or hereafter in effect relating to or
affecting creditors' rights and remedies generally, (ii) such
enforceability may be limited by the effects of general principles
of equity and by the discretion of the court before which any
proceeding therefor may be brought (whether such proceeding is at
law or in a bankruptcy proceeding), (iii) rights to contribution or
indemnification may be limited by the laws, rules or regulations or
any governmental authority or agency thereof or by public policy,
and (iv) waivers as to usury, stay or extension laws may be
unenforceable.
(10) The New Credit Facility has been duly authorized and when
validly executed by the Company will be the legally valid and
binding obligation of the Company, enforceable against the Company
in accordance with its terms, except that (i) such enforceability
may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, (whether general or specific) or similar
laws now or hereafter in effect relating to or affecting creditors'
rights and remedies generally, (ii) such enforceability may be
limited by the effects of general principles of equity and by the
discretion of the court before which any proceeding therefor may be
brought (whether such proceeding is at law or in a bankruptcy
proceeding), (iii) rights to contribution or indemnification may be
limited by the laws, rules or regulations or any governmental
authority or agency thereof or by public policy, and (iv) waivers as
to usury, stay or extension laws may be unenforceable.
(11) To the best knowledge of such counsel, there is and,
after giving effect to the Combination pursuant to the terms of the
Combination Agreement, will be (i) no action, suit, proceeding or
investigation before or by any court, arbitrator or governmental
agency, body or official, domestic or foreign, now pending,
threatened, or contemplated to which the Company is or may be a
party or to which the business or property of the Company is or,
after giving effect to the Combination pursuant to the terms of the
Combination Agreement, may be subject, (ii) no statute, rule,
regulation or order that has been enacted, adopted or issued by any
governmental agency or proposed by any governmental body or (iii) no
injunction, restraining order or order of any nature issued by a
federal or state court of competent jurisdiction to which the
Company is or may be subject that, in the case of clauses (i), (ii)
and (iii) above, (1) is required to be disclosed in the Offering
Memorandum and that is not so disclosed, (2) might have a Material
Adverse Effect or (3) would interfere with or adversely affect the
issuance of the Senior Subordinated Notes or the Note Guarantees.
-31-
33
(12) To the best knowledge of such counsel, there are no
holders of any security of the Company who by reason of the
execution by the Company of this Agreement or any other Operative
Document or the consummation of the transactions contemplated hereby
and thereby, have the right to request or demand that the Company
register under the Act, or analogous foreign laws and regulations,
securities held by them.
(13) The statements under the captions "Description of Notes,"
"Description of Indebtedness" and "The Transactions--The
Combination" in the Offering Memorandum, insofar as such statements
constitute a summary of legal matters, documents or proceedings
referred to therein, are correct in all material respects.
(14) Neither the Company nor any of its Subsidiaries nor any
agent thereof acting on the behalf of them, has taken or will take
any action that might cause this Agreement or the issuance or sale
of the Notes to violate Regulation G (12 C.F.R. Part 207),
Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221)
or Regulation X (12 C.F.R. Part 224) of the Board of Governors of
the Federal Reserve System, in each case as in effect now or as the
same may hereafter be in effect on the Closing Date.
(15) Neither the Company nor any of its Subsidiaries is or,
after giving effect to the Combination pursuant to the terms of the
Combination Agreement, will be an "investment company" or a company
"controlled" by an investment company within the meaning of the
Investment Company Act of 1940, as amended.
(16) When the Senior Subordinated Notes are issued and
delivered pursuant to this Agreement, such Senior Subordinated Notes
will not be of the same class (within the meaning of Rule 144A under
the Act) as securities of the Company that are listed on a national
securities exchange registered under Section 6 of the Exchange Act
or that are quoted in a United States automated inter-dealer
quotation system.
(17) The Indenture is not required to be qualified under the
Trust Indenture Act prior to the first to occur of (i) the
Registered Exchange Offer and (ii) the effectiveness of the Shelf
Registration Statement.
(18) Assuming (i) that the representations and warranties of
the Initial Purchasers in Section 7 hereof and those of the Company
in this Agreement relating to (a) the absence of general
solicitation, (b) offerings of similar securities, (c) the Company's
status as an investment company and (d) whether the Senior
Subordinated Notes are of the same class as other securities of the
Company listed on a national securities exchange registered under
Section 6 of the Exchange Act or that are quoted in a
-32-
34
United States automated inter-dealer quotation system are accurate
and will be complied with, (ii) that the Initial Purchasers complied
with their covenants as set forth in Section 7 hereof, (iii) that
none of the Eligible Purchasers is an affiliate of the Company and
(iv) that each of the Eligible Purchasers is a QIB or is purchasing
in a transaction pursuant to Regulation S, the purchase and resale
of the Senior Subordinated Notes pursuant hereto (including pursuant
to the Exempt Resales) is exempt from the registration requirements
of the Act.
(19) The Offering Memorandum, as of its date, and each
amendment or supplement thereto, as of its date (except for the
financial statement and the notes thereto and schedules and other
financial, statistical and accounting data included therein, as to
which such counsel expresses no opinion), complied as to form in all
material respects with the requirements of Rule 144A of the Act.
In addition, such counsel shall state that it has participated in
conferences with representatives of the Company, representatives of the
Company's accountants, the Initial Purchasers' representatives and counsel for
the Initial Purchasers, at which conferences the contents of the Offering
Documents and related matters were discussed, and, although such counsel has not
independently verified and is not passing upon and assumes no responsibility for
the accuracy, completeness or fairness of the statements contained in the
Offering Documents (other than those that such counsel must opine on pursuant to
Section 9(d)(l5) of this Agreement), no facts have come to such counsel's
attention which led it to believe that the Offering Memorandum, on the date
thereof or on the date of such opinion, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no view with respect to the financial statements
and data and related notes, the financial statement schedules and other
financial, statistical and accounting data included in the Offering Documents).
(e) On the Closing Date, the Initial Purchasers shall have received
an opinion (satisfactory to the Initial Purchasers and counsel to the
Initial Purchasers) dated the Closing Date, of Robert N. Sacks, General
Counsel for the Company and the Subsidiary Guarantors. In giving such
opinion, Robert N. Sacks will rely upon the opinion of Michael K. Wolf as
to all matters with respect to Standard Parking, L.P., Standard Parking
Corporation, Standard Parking Corporation IL, Standard Parking
Corporation, MW, Standard Auto Park, Inc., Standard/Wabash Parking
Corporation, Standard Parking of Canada, L.P., Standard Parking I, L.L.C.
and Standard Parking II, L.L.C. Such opinion will be substantially to the
effect that:
(1) Each of the Company and the non-Delaware Subsidiary
Guarantors (i) is, and after giving effect to the Combination
pursuant to the terms of the Combination Agreement will be, duly
organized and val-
-33-
35
idly existing and in good standing under the laws of its
jurisdiction of its organization, (ii) has, and after giving effect
to the Combination pursuant to the terms of the Combination
Agreement will have, all requisite corporate or comparable power and
authority to carry on its business as described in the Offering
Memorandum and to own, lease and operate its properties, and (iii)
is, and after giving effect to the Combination pursuant to the terms
of the Combination Agreement will be, duly qualified and is in good
standing as a foreign business or organization authorized to do
business in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification
except where the failure to be so qualified would not reasonably be
expected to have a Material Adverse Effect.
(2) All of the issued and outstanding shares of capital stock
or partnership interests of, or other securities evidencing equity
ownership interests in, the Company and each of its Subsidiaries
have been duly and validly authorized and issued, and, except
otherwise disclosed in the Offering Memorandum, all of the shares of
capital stock of, or other securities evidencing equity ownership
interests in, each such Subsidiary are owned, directly or
indirectly, by the Company. All such shares of capital stock are
fully paid and non-assessable and have not been issued in violation
of any preemptive or similar rights and are owned free and clear of
any Lien, except for Liens granted pursuant to the New Credit
Facility and except for limitations on voting rights with respect to
shares of Atrium Parking, Inc. held by the Company. Except as
disclosed in the Offering Memorandum, there are not currently, and
will not be as a result of the Offering or the consummation of the
Combination pursuant to the terms of the Combination Agreement, any
outstanding subscriptions, rights, warrants, options, calls,
convertible securities, commitments of sale or Liens related to or
entitling any person to purchase or otherwise to acquire any shares
of the capital stock of, or other securities evidencing equity
ownership interests in, the Company or any of its Subsidiaries.
(3) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Operative Documents to which it is a party, and to consummate the
transactions contemplated thereby, including, without limitation,
the corporate power and authority to issue, sell and deliver the
Senior Subordinated Notes to the Initial Purchasers.
(4) The non-Delaware Subsidiary Guarantors have all necessary
corporate or comparable power and authority to enter into and
perform their obligations under the Operative Documents, and to
issue, sell and deliver the Note Guarantees to the Initial
Purchasers.
-34-
36
(5) Neither the Company nor any of its non-Delaware Subsidiary
Guarantors is, and after giving effect to the Offering and the
Combination pursuant to the terms of the Combination Agreement will
be, (i) in violation of its charter or bylaws or partnership
agreement or other organizational documents, as the case may be,
(ii) except as disclosed in the Offering Memorandum, in default in
the performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of indebtedness
or in any other agreement, indenture or instrument, in each case
which is material to the conduct of the business of the Company, to
which the Company is a party or by which it or any of the Company's
non-Delaware Subsidiary Guarantors or their respective property is
bound, or (iii) in violation of any local, state or federal law,
statute, ordinance, rule, regulation, requirement, judgment or court
decree (including, without limitation, environmental laws, statutes,
ordinances, rules, regulations, judgments or court decrees) in each
case under the laws of the State of Ohio, the laws of the State of
Illinois, the laws of the State of Delaware, and the laws of the
United States (the "General Counsel Subject Laws"), applicable to
the Company, its non-Delaware Subsidiary Guarantors or any of its
assets or properties (whether owned or leased), other than
violations or defaults that could not reasonably be expected to have
a Material Adverse Effect. To the best knowledge of the Company,
there exists no condition that, with notice, the passage of time or
otherwise, would constitute a default under any such document or
instrument, except for such defaults that would not reasonably be
expected to have a Material Adverse Effect.
(6) None of (i) the execution, delivery or performance by the
Company or the non-Delaware Subsidiary Guarantors of this Agreement
and the other Operative Documents, (ii) the performance by the
Company of the Combination Agreement and consummation of the
Combination pursuant to the terms of the Combination Agreement,
(iii) the issuance and sale of the Notes by the Company or the
issuance of the Note Guarantees by the non-Delaware Subsidiary
Guarantors and (iv) the consummation by the Company of the
transactions described in the Offering Memorandum under the caption
"Use of Proceeds," will conflict with or constitute a breach of any
of the terms or provisions of, or, after giving effect to the
Combination pursuant to the terms of the Combination Agreement, will
violate, conflict with or constitute a breach of any of the terms or
provisions of, or a default under, or result in the imposition of a
lien or encumbrance on any properties of the Company or the
non-Delaware Subsidiary Guarantors, as the case may be, or an
acceleration of indebtedness pursuant to, (1) the respective charter
or bylaws of the Company or the non-Delaware Subsidiary Guarantors,
as the case may be, (2) to the best of its knowledge, any bond,
debenture, note, indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or the non-
-35-
37
Delaware Subsidiary Guarantors, as the case may be, is a party or by
which any of their respective property is bound, or (3) any law or
administrative regulation in each case under the General Counsel
Subject Laws applicable to the Company or the non-Delaware
Subsidiary Guarantors, as the case may be, or any of their assets or
properties, or any judgment, order or decree of any court or
governmental agency or authority entered in any proceeding to which
the Company or the non-Delaware Subsidiary Guarantors, as the case
may be, was or is now a party or to which any of their respective
properties may be subject except as would not have a Material
Adverse Effect. No consent, approval, authorization or order of, or
filing or registration with, any regulatory body, administrative
agency, or other governmental agency (except as securities or Blue
Sky laws of the various states may require) is required for the
execution, delivery and performance of the Operative Documents and
the valid issuance and sale of the Securities. No consents or
waivers from any person are required to consummate the transactions
contemplated by the Operative Documents or the Offering Documents,
other than such consents and waivers as have been or will be
obtained prior to the Closing Date or, in the case of the
Registration Rights Agreement and the transactions contemplated
thereby, will be obtained and made under the Act, the Trust
Indenture Act and state securities or Blue Sky laws and regulations.
(7) This Agreement has been duly authorized and, when validly
executed by the Company and the non-Delaware Subsidiary Guarantors
and (assuming the due execution and delivery thereof by the Initial
Purchasers) is a legally valid and binding obligation of the Company
and the non-Delaware Subsidiary Guarantors, enforceable against each
in accordance with its terms, except that (i) such enforceability
may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, (whether general or specific) or similar
laws now or hereafter in effect relating to or affecting creditors'
rights and remedies generally, (ii) such enforceability may be
limited by the effects of general principles of equity and by the
discretion of the court before which any proceeding therefor may be
brought (whether such proceeding is at law or in a bankruptcy
proceeding), (iii) rights to contribution or indemnification may be
limited by the laws, rules or regulations or any governmental
authority or agency thereof or by public policy, and (iv) waivers as
to the usury, stay or extension laws may be unenforceable.
(8) The Company and the non-Delaware Subsidiary Guarantors
have duly authorized the Indenture, and when the Company and the
non-Delaware Subsidiary Guarantors have duly executed and delivered
the Indenture (assuming the due authorization, execution and
delivery thereof by the Trustee), the Indenture will be the legally
valid and binding obligation of each, enforceable against each in
accordance with its terms, except that
-36-
38
(i) such enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium, (whether general
or specific) or similar laws now or hereafter in effect relating to
or affecting creditors' rights and remedies generally, (ii) such
enforceability may be limited by the effects of general principles
of equity and by the discretion of the court before which any
proceeding therefor may be brought (whether such proceeding is at
law or in a bankruptcy proceeding), (iii) rights to contribution or
indemnification may be limited by the laws, rules or regulations or
any governmental authority or agency thereof or by public policy,
and (iv) waivers as to usury, stay or extension laws may be
unenforceable.
(9) The Company has duly authorized the Senior Subordinated
Notes and, when issued and authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms hereof, will be the legally
valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except that (i) such
enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, (whether general or
specific) or similar laws now or hereafter in effect relating to or
affecting creditors' rights and remedies generally, (ii) such
enforceability may be limited by the effects of general principles
of equity and by the discretion of the court before which any
proceeding therefor may be brought (whether such proceeding is at
law or in a bankruptcy proceeding), (iii) rights to contribution or
indemnification may be limited by the laws, rules or regulations or
any governmental authority or agency thereof or by public policy,
and (iv) waivers as to the usury, stay or extension laws may be
unenforceable.
(10) The non-Delaware Subsidiary Guarantors have duly
authorized the Note Guarantees to be endorsed on the Senior
Subordinated Notes and, when the Senior Subordinated Notes are
issued and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Initial Purchasers in
accordance with the terms hereof, the Note Guarantees will be the
legally valid and binding obligations of the non-Delaware Subsidiary
Guarantors, enforceable against the non-Delaware Subsidiary
Guarantors in accordance with their terms, except that (i) such
enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, (whether general or
specific) or similar laws now or hereafter in effect relating to or
affecting creditors' rights and remedies generally, (ii) such
enforceability may be limited by the effects of general principles
of equity and by the discretion of the court before which any
proceeding therefor may be brought (whether such proceeding is at
law or in a bankruptcy proceeding), (iii) rights to contribution or
indemnification may be limited by the laws, rules or regulations or
any governmental authority or agency thereof or by
-37-
39
public policy, and (iv) waivers as to the usury, stay or extension
laws may be unenforceable.
(11) The Company has duly authorized the New Senior
Subordinated Notes and, when issued and authenticated in accordance
with the terms of the Registered Exchange Offer and the Indenture,
the New Senior Subordinated Notes will be the legally valid and
binding obligations of the Company, enforceable against the Company
in accordance with their terms, except that (i) such enforceability
may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, (whether general or specific) or similar
laws now or hereafter in effect relating to or affecting creditors'
rights and remedies generally, (ii) such enforceability may be
limited by the effects of general principles of equity and by the
discretion of the court before which any proceeding therefor may be
brought (whether such proceeding is at law or in a bankruptcy
proceeding), (iii) rights to contribution or indemnification may be
limited by the laws, rules or regulations or any governmental
authority or agency thereof or by public policy, and (iv) waivers as
to usury, stay or extension laws may be unenforceable.
(12) The non-Delaware Subsidiary Guarantors have duly
authorized the Note Guarantees to be endorsed on the New Senior
Subordinated Notes and, when the New Senior Subordinated Notes are
issued and authenticated in accordance with the terms of the
Registered Exchange Offer and the Indenture, the Note Guarantees
will be the legally valid and binding obligations of the
non-Delaware Subsidiary Guarantors, enforceable against the
non-Delaware Subsidiary Guarantors in accordance with their terms,
except that (i) such enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium,
(whether general or specific) or similar laws now or hereafter in
effect relating to or affecting creditors' rights and remedies
generally, (ii) such enforceability may be limited by the effects of
general principles of equity and by the discretion of the court
before which any proceeding therefor may be brought (whether such
proceeding is at law or in a bankruptcy proceeding), (iii) rights to
contribution or indemnification may be limited by the laws, rules or
regulations or any governmental authority or agency thereof or by
public policy, and (iv) waivers as to the usury, stay or extension
laws may be unenforceable.
(13) The Registration Rights Agreement has been duly
authorized and when validly executed by the Company and the
non-Delaware Subsidiary Guarantors will be (assuming the due
execution and delivery thereof by the Initial Purchasers) the
legally valid and binding obligation of each, enforceable against
each in accordance with its terms, except that (i) such
enforceability may be limited by bankruptcy, insolvency, fraudu-
-38-
40
lent conveyance, reorganization, moratorium, (whether general or
specific) or similar laws now or hereafter in effect relating to or
affecting creditors' rights and remedies generally, (ii) such
enforceability may be limited by the effects of general principles
of equity and by the discretion of the court before which any
proceeding therefor may be brought (whether such proceeding is at
law or in a bankruptcy proceeding), (iii) rights to contribution or
indemnification may be limited by the laws, rules or regulations or
any governmental authority or agency thereof or by public policy,
and (iv) waivers as to the usury, stay or extension laws may be
unenforceable.
(14) The Combination Agreement has been duly and validly
authorized by the Company and is a legally valid and binding
agreement of the Company, enforceable against it in accordance with
its terms, except that (i) such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, (whether general or specific) or similar laws now or
hereafter in effect relating to or affecting creditors' rights and
remedies generally, (ii) such enforceability may be limited by the
effects of general principles of equity and by the discretion of the
court before which any proceeding therefor may be brought (whether
such proceeding is at law or in a bankruptcy proceeding), (iii)
rights to contribution or indemnification may be limited by the
laws, rules or regulations or any governmental authority or agency
thereof or by public policy, and (iv) waivers as to the usury, stay
or extension laws may be unenforceable.
(15) The New Credit Facility has been duly authorized and when
validly executed by the Company and the subsidiaries of the Company
that are obligors thereunder will be the legally valid and binding
obligation of each, enforceable against each in accordance with its
terms, except that (i) such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, (whether general or specific) or similar laws now or
hereafter in effect relating to or affecting creditors' rights and
remedies generally, (ii) such enforceability may be limited by the
effects of general principles of equity and by the discretion of the
court before which any proceeding therefor may be brought (whether
such proceeding is at law or in a bankruptcy proceeding), (iii)
rights to contribution or indemnification may be limited by the
laws, rules or regulations or any governmental authority or agency
thereof or by public policy, and (iv) waivers as to usury, stay or
extension laws may be unenforceable.
(16) To the best knowledge of such counsel, there is and,
after giving effect to the Combination pursuant to the terms of the
Combination Agreement, will be (i) no action, suit, proceeding or
investigation before or by any court, arbitrator or governmental
agency, body or official, do-
-39-
41
mestic or foreign, now pending, threatened, or, to the knowledge of
the Company, contemplated to which the Company or the non-Delaware
Subsidiary Guarantors is or may be a party or to which the business
or property of the Company or the non-Delaware Subsidiary Guarantors
is or, after giving effect to the Combination pursuant to the terms
of the Combination Agreement, may be subject, (ii) no statute, rule,
regulation or order that has been enacted, adopted or issued by any
governmental agency or, to the best knowledge of the Company,
proposed by any governmental body or (iii) no injunction,
restraining order or order of any nature issued by a federal or
state court of competent jurisdiction to which the Company or the
non-Delaware Subsidiary Guarantors is or may be subject that, in the
case of clauses (i), (ii) and (iii) above, (1) is required to be
disclosed in the Offering Memorandum and that is not so disclosed,
(2) might have a Material Adverse Effect or (3) would interfere with
or adversely affect the issuance of the Senior Subordinated Notes or
the Note Guarantees.
(17) To the best knowledge of such counsel, there are no
holders of any security of the Company or the non-Delaware
Subsidiary Guarantors who by reason of the execution by the Company
and the non-Delaware Subsidiary Guarantors of this Agreement or any
other Operative Document or the consummation of the transactions
contemplated hereby and thereby, have the right to request or demand
that the Company or the non-Delaware Subsidiary Guarantors register
under the Act, or analogous foreign laws and regulations, securities
held by them.
(18) The statements under the captions "The Business -
Litigation" in the Offering Memorandum, insofar as such statements
constitute a summary of legal matters, documents or proceedings
referred to therein, are correct in all material respects.
In addition, such counsel shall state that he has participated in
conferences with representatives of the Company, representatives of the
Company's accountants, the Initial Purchasers' representatives and counsel for
the Initial Purchasers, at which conferences the contents of the Offering
Documents and related matters were discussed, and, although such counsel has not
independently verified and is not passing upon and assumes no responsibility for
the accuracy, completeness or fairness of the statements contained in the
Offering Documents, no facts have come to such counsel's attention which led him
to believe that the Offering Memorandum, on the date thereof or on the date of
such opinion, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
contained therein, in the light of the circumstances under which they were made,
not misleading (it being understood that such counsel need express no view with
respect to the financial statements and data and related notes, the financial
statement schedules and other financial, statistical and accounting data
included in the Offering Documents).
-40-
42
(f) The Initial Purchasers shall have received on the Closing Date
an opinion, dated the Closing Date, of Latham & Watkins, in form and
substance satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received customary comfort
letters from (i) Ernst & Young LLP, independent public accountants for the
Company and (ii) Altschuler, Melvoin and Glasser, LLP, independent public
accountants for Standard, in each case, dated as of the date of this
Agreement and as of the Closing Date, in form and substance satisfactory
to the Initial Purchasers and counsel to the Initial Purchasers, with
respect to the financial statements and certain financial information
contained in the Offering Memorandum.
(h) The Company, the Subsidiary Guarantors and the Trustee shall
have entered into the Indenture and the Initial Purchasers shall have
received counterparts, conformed as executed, thereof.
(i) The Company, the Subsidiary Guarantors and the Initial
Purchasers shall have entered into the Registration Rights Agreement for
the benefit of the Initial Purchasers and the benefit of the other
purchasers, in the form attached hereto as Exhibit A, and the Initial
Purchasers shall have received counterparts, conformed as executed,
thereof.
(j) The Company shall have entered into the New Credit Facility (the
form and substance of which shall be acceptable to the Initial Purchasers)
and the Initial Purchasers shall have received counterparts, conformed as
executed thereof and of all other documents and agreements entered into in
connection therewith.
(k) The Company shall have fully performed or complied with any of
the agreements herein contained and required to be performed or complied
with by the Company on or prior to the Closing Date.
(l) Latham & Watkins shall have been furnished with such documents
and opinions, in addition to those set forth above, as they may reasonably
require for the purpose of enabling them to review or pass upon the
matters referred to in this Section 9 and in order to evidence the
accuracy, completeness or satisfaction in all material respects of any of
the representations, warranties or conditions herein contained.
10. EFFECTIVENESS OF AGREEMENT AND TERMINATION.
(a) This Agreement shall become effective upon the execution and
delivery of this Agreement by the parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by the Initial Purchasers by written notice to the Company if any of the
following has occurred: (i) any outbreak or escalation of hostilities or other
national or international calamity or crisis or
-41-
43
change in economic conditions or in the financial markets of the United States
or elsewhere that, in the Initial Purchasers' judgment, is material and adverse
and, in the Initial Purchasers' judgment, makes it impracticable to market the
Senior Subordinated Notes on the terms and in the manner contemplated in the
Offering Memorandum, (ii) the suspension or material limitation of trading in
securities or other instruments on the New York Stock Exchange, the American
Stock Exchange, the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange, the Chicago Board of Trade or the Nasdaq National Market or limitation
on prices for securities or other instruments on any such exchange or the Nasdaq
National Market, (iii) the suspension of trading of any securities of the
Company or any Guarantor on any exchange or in the over-the-counter market, (iv)
the enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental authority
which in your the Initial Purchasers' reasonable opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in the Initial Purchasers' reasonable opinion has a
material adverse effect on the financial markets in the United States.
(b) If on the Closing Date, any of the Initial Purchasers shall fail
or refuse to purchase Senior Subordinated Notes which it has agreed to purchase
hereunder on such date, and the aggregate principal amount of such Senior
Subordinated Notes that such defaulting Initial Purchaser agreed but failed or
refused to purchase does not exceed 10% of the total principal amount of such
Senior Subordinated Notes that all of the Initial Purchasers are obligated to
purchase on such Closing Date, the non-defaulting Initial Purchasers shall be
obligated to purchase the Senior Subordinated Notes that such defaulting Initial
Purchasers agreed but failed or refused to purchase on such date. If, on the
Closing Date, any of the Initial Purchasers shall fail or refuse to purchase
Senior Subordinated Notes in an aggregate principal amount that exceeds 10% of
such total principal amount of the Senior Subordinated Notes and arrangements
satisfactory to the other Initial Purchasers and the Company for the purchase of
such Senior Subordinated Notes are not made within 48 hours after such default,
this Agreement shall terminate without liability on the part of the
non-defaulting Initial Purchasers or the Company, except as otherwise provided
in this Section 10. In any such case that does not result in termination of this
Agreement, the Initial Purchasers or the Company may postpone the Closing Date
for not longer than seven days, in order that the required changes, if any, in
the Offering Memorandum or any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve a defaulting Initial
Purchaser from liability in respect of any default by any such Initial Purchaser
under this Agreement.
11. AGREEMENT OF THE INITIAL PURCHASERS.
The Initial Purchasers agree, severally and not jointly, that upon their
receipt of any written notice from the Company of the existence of any fact or
the happening of any event that requires the making of any additions to or
changes in any offering memorandum, registration statement or prospectus, or
amendment or supplement thereto, referred to in Section 5(d) hereof in order
that such document will not contain any untrue statement of a material fact or
omission
-42-
44
to state any material fact necessary in order to make the statements therein, in
the light of the circumstances existing as of the date such document was
delivered, not misleading, such Initial Purchasers shall forthwith discontinue
disposition of the applicable Notes pursuant to such document until (i) such
Initial Purchasers receive from the Company copies of an amended or supplemented
document that the Company states in writing may be used by such Initial
Purchasers or (ii) such Initial Purchasers are advised in writing by the Company
that the use of such document may be resumed.
12. MISCELLANEOUS.
(a) Notices given pursuant to any provision of this Agreement shall
be addressed as follows: (i) if to the Company, to APCOA, Inc., 800
Superior Avenue, Cleveland, Ohio 44114, Attention: General Counsel and
(ii) if to the Initial Purchasers, to Donaldson, Lufkin & Jenrette
Securities Corporation, 277 Park Avenue, New York, New York 10172,
Attention: Syndicate Department, and (iii) if to the Initial Purchasers
pursuant to Section 11 hereof, (A) to Donaldson, Lufkin & Jenrette
Securities Corporation, 277 Park Avenue, New York, New York 10172,
Attention: Syndicate Department & Compliance Department and (B) to First
Chicago Capital Markets, Inc., 611 Woodward, 2nd Floor, Detroit, Michigan
48226, Attention: Syndicate Department & Compliance Department or in any
case to such other address as the person to be notified may have requested
in writing.
(b) The respective indemnities, contribution agreements,
representations, warranties and other statements set forth in or made
pursuant to this Agreement shall remain operative and in full force and
effect, and will survive delivery of and payment for the Senior
Subordinated Notes, regardless of (i) any investigation, or statement as
to the results thereof, made by or on behalf of any such person, (ii)
acceptance of the Senior Subordinated Notes and payment for them hereunder
and (iii) termination of this Agreement.
(c) Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Subsidiary Guarantors, the Initial Purchasers, any controlling persons
referred to herein and their respective successors and assigns, all as and
to the extent provided in this Agreement, and no other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include a purchaser of any of the
Senior Subordinated Notes from any of the Initial Purchasers merely
because of such purchase.
(d) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS APPLIED TO CONTRACTS
MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK.
-43-
45
(e) This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument. Please confirm that
the foregoing correctly sets forth the agreement between the Company, the
Subsidiary Guarantors and the Initial Purchasers.
(f) In any provision hereunder purporting to give effect to the
Combination, such statements are made with respect to facts known as of
the date hereof (and not future events other than the consummation of the
Combination) and are meant only to account for consummation of the
Combination in accordance with the terms of the Combination Agreement.
(g) All representations and warranties hereunder made by the Company
or the Subsidiary Guarantors, and the opinions of Wachtell, Lipton, Rosen
& Katz and Robert N. Sacks are qualified by the information contained in
the Preliminary Offering Memorandum and the Offering Memorandum.
[signature pages follow]
-44-
46
Very truly yours,
APCOA, INC.
By: /s/ Michael J. Celebrezze
----------------------------------
Name: Michael J. Celebrezze
Title: Senior Vice President,
Chief Financial Officer
Treasurer
TOWER PARKING, INC.
By: /s/ Michael J. Celebrezze
----------------------------------
Name: Michael J. Celebrezze
Title: Vice President, Treasurer
GRAELIC, INC.
By: /s/ Michael J. Celebrezze
----------------------------------
Name: Michael J. Celebrezze
Title: Vice President, Treasurer
APCOA CAPITAL CORPORATION
By: /s/ Michael J. Celebrezze
----------------------------------
Name: Michael J. Celebrezze
Title: Vice President, Treasurer
-45-
47
A-1 AUTO PARK, INC.
By: /s/ Michael J. Celebrezze
----------------------------------
Name: Michael J. Celebrezze
Title: Vice President, Treasurer
METROPOLITAN PARKING SYSTEM, INC.
By: /s/ Michael J. Celebrezze
----------------------------------
Name: Michael J. Celebrezze
Title: Treasurer
EVENTS PARKING CO., INC.
By: /s/ Michael J. Celebrezze
----------------------------------
Name: Michael J. Celebrezze
Title: Treasurer
-46-
48
STANDARD PARKING, L.P.
By: /s/ Myron C. Warshauer
----------------------------------
Name: Myron C. Warshauer
Title: President
STANDARD PARKING CORPORATION
By: /s/ Myron C. Warshauer
----------------------------------
Name: Myron C. Warshauer
Title: President
STANDARD PARKING CORPORATION, IL
By: /s/ Myron C. Warshauer
----------------------------------
Name: Myron C. Warshauer
Title: President
STANDARD PARKING CORPORATION, MW
By: /s/ Myron C. Warshauer
----------------------------------
Name: Myron C. Warshauer
Title: President
-47-
49
STANDARD AUTO PARK, INC.
By: /s/ Myron C. Warshauer
----------------------------------
Name: Myron C. Warshauer
Title: President
STANDARD/WABASH PARKING CORPORATION
By: /s/ Myron C. Warshauer
----------------------------------
Name: Myron C. Warshauer
Title: President
STANDARD PARKING OF CANADA
By: /s/ Myron C. Warshauer
----------------------------------
Name: Myron C. Warshauer
Title: President of Standard
Parking Corporation,
General Partner of Standard
Parking of Canada, L.P.
STANDARD PARKING I, L.L.C.
By: /s/ Myron C. Warshauer
----------------------------------
Name: Myron C. Warshauer
Title: President of Standard
Parking Corporation,
Managing Member of Standard
Parking I, L.L.C.
-48-
50
STANDARD PARKING II, L.L.C.
By: /s/ Myron C. Warshauer
----------------------------------
Name: Myron C. Warshauer
Title: President of Standard
Parking Corporation,
Managing Member of Standard
Parking II, L.L.C.
-49-
51
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written
by Donaldson, Lufkin & Jenrette Se-
curities Corporation on behalf
of the Initial Purchasers.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Timothy White
-------------------------------
Name: Timothy White
Title: Vice President
-50-
52
SCHEDULE I
Subsidiary Guarantors
Tower Parking, Inc.
Graelic, Inc.
APCOA Capital Corporation
A-1 Auto Park, Inc.
Metropolitan Parking System, Inc.
Events Parking Co., Inc.
Standard Parking, L.P.
Standard Parking Corporation
Standard Parking Corporation, IL
Standard Parking Corporation, MW
Standard Auto Park, Inc.
Standard/Wabash Parking Corporation
Standard Parking of Canada, L.P.
Standard Parking I, L.L.C.
Standard Parking II, L.L.C.
-51-
53
SCHEDULE II
Donaldson, Lufkin & Jenrette Securities Corporation.................
First Chicago Capital Markets, Inc..................................
-52-
54
EXHIBIT A
Form of Registration Rights Agreement
-53-