EXHIBIT 10.28
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("AGREEMENT") is entered into as of May 10,
2004, by and among Standard Parking Corporation ("SPC"), SP Associates ("SP"),
Waverly Partners, L.P. ("WAVERLY"), the Xxxxx X. Xxxxxxxxx GST Exempt Trust (the
"TRUST" and together with SP and Waverly, the "SELLERS") and Xxxxx X. Xxxxxxxxx
("XXXXXXXXX"), Steamboat Industries LLC ("STEAMBOAT") (for the purposes of
Section 5 and Section 11 only) and Xxxx X. Xxxxxx ("XXXXXX") (for the purposes
of Section 5 and Section 12 only). The parties to this Agreement are sometimes
referred to herein individually as "PARTY" or collectively as "PARTIES."
RECITALS
WHEREAS, in September and October, 2001, the Sellers exercised their right
to require SPC to purchase the shares of common stock of SPC (the "STOCK") held
by them pursuant to that certain Stockholders Agreement dated as of March 30,
1998, as amended, by and among SPC, the Sellers and certain other parties
thereto (the "STOCKHOLDERS AGREEMENT"), which purchase was not consummated at
that time for reasons contemplated by Section 6.3 of the Stockholders Agreement.
WHEREAS, the Parties desire to consummate SPC's purchase of the Stock on
the terms and conditions set forth herein.
WHEREAS, the Parties desire to enter into certain other transactions as set
forth herein.
NOW, THEREFORE, in consideration for the mutual agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
1. PURCHASE OF STOCK. At the Closing (as defined below), SPC agrees to purchase
and acquire, and the Sellers agree to sell and transfer to SPC, the Stock.
2. PAYMENT OF PURCHASE PRICE. The aggregate purchase price for the Stock was
$11,027,162.25 as of March 31, 2004, and interest thereon continues to accrete
until paid at the rate of 11-3/4%, cumulating quarterly (the "PURCHASE PRICE").
The Purchase Price less $5 million shall be paid in cash at the Closing (the
"CLOSING PAYMENT"), and SPC's obligation to pay the remaining $5 million shall
be evidenced by promissory notes in the form of EXHIBIT A attached hereto (each
a "PROMISSORY NOTE") in the aggregate principal amount of $5 million.
3. CLOSING. The closing of the transactions contemplated hereby is conditioned
upon and shall occur simultaneously with the closing of the initial public
offering of SPC's common stock (the "IPO"), at the offices of Xxxxxxxx & Xxxxxx,
Ltd., 00 X. Xxxxxx Xx., 00xx Xxxxx, Xxxxxxx, XX 00000, or such other place as is
mutually agreeable to the Parties (the "CLOSING").
4. CLOSING DELIVERIES.
4.1. At the Closing, the Sellers shall deliver to SPC certificates
representing the Stock together with duly signed Assignments Separate from
Certificate with respect thereto.
4.2. At the Closing, SPC shall deliver to each Seller: (a) such Seller's
Pro Rata Portion of the Closing Payment by certified check or wire transfer, and
(b) a Promissory Note in the principal amount of such Seller's Pro Rata Portion
of $5 million. Each Seller's "PRO RATA PORTION" shall equal a fraction, the
numerator of which is the number of shares of Stock held by such Seller and the
denominator of which is the aggregate number of shares of Stock held by all of
the Sellers.
5. ASSIGNMENT OF PROMISSORY NOTES. At the Closing, SPC's obligations under the
Promissory Notes shall be assumed by Steamboat, which at the time of the Closing
will be SPC's majority owner. Concurrently therewith, the following items shall
be delivered to the Sellers (who shall also sign those documents referred to
below calling for their signatures) and SPC shall be discharged from all
liability under the Promissory Notes:
(a) A Pledge and Escrow Agreement, in the form attached hereto as
EXHIBIT B, whereby Steamboat pledges a number of shares of common stock of
SPC (the "PLEDGED SHARES") equal to (i) the unpaid principal amount of the
Promissory Notes plus an amount of interest thereon determined at an
interest rate of 11.75% per annum (notwithstanding the interest rate set
forth in the Promissory Notes), cumulated quarterly, divided by (ii) the
price per share of the common stock of SPC offered to the public in the
IPO, to secure its obligations under the Promissory Notes, which Pledged
Shares shall be held by an independent escrow agent ("ESCROW AGENT")
pursuant to escrow instructions set forth in the Pledge and Escrow
Agreement. An example for illustrative purposes only of the calculation to
determine the number of Pledged Shares is attached hereto as SCHEDULE A,
based on a price per share of common stock of $15 in the IPO;
(b) Stock certificates representing the Pledged Shares, and duly signed
Assignments Separate from Certificate therefore, to be delivered to the
Escrow Agent;
(c) The personal undertaking of Xxxxxx, in the form attached hereto as
EXHIBIT C, guarantying Steamboat's obligations under the Promissory Notes;
and
(d) A written undertaking from Steamboat, in the form attached hereto as
EXHIBIT D, (i) assuming the obligations of SPC under the Promissory Notes,
and (ii) agreeing to prepay an aggregate principal amount of $1 million on
the Promissory Notes, each Seller to receive its Pro Rata Portion thereof,
in the event that the over-allotment option in the IPO is exercised in full
(but not otherwise), payable at the closing thereof.
Sellers hereby agree that upon delivery of the items set forth above, SPC
shall be discharged from any and all obligations under the Promissory Notes and
agree to confirm SPC's discharge in writing.
6. CANCELLATION OF XXXXXXXXX OPTION AGREEMENT. At the Closing, SPC shall pay to
Xxxxxxxxx the sum of $300,000 in consideration of Xxxxxxxxx'x cancellation of
that certain
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Stock Option Agreement, dated as of March 30, 1998, by and between SPC and
Xxxxxxxxx (the "STOCK OPTION AGREEMENT"). Xxxxxxxxx hereby agrees that upon
delivery of such payment by check or wire transfer at the Closing, the Stock
Option Agreement shall be cancelled and shall be of no further force or effect.
7. AMENDMENT OF XXXXXXXXX EMPLOYMENT AGREEMENT AND SHORELINE CONSULTING
AGREEMENT. Effective as of the date of this Agreement: (i) SPC and Xxxxxxxxx
hereby agree to amend that certain Employment Agreement, dated as of March 30,
1998, by and between SPC and Xxxxxxxxx, by deleting the last sentence of Section
5(d) thereof in its entirety and replacing it with the following sentence: "In
consideration of the foregoing, Xx. Xxxxxxxxx is obligated to provide reasonable
consulting services, in such manner and to such extent as determined by him,
through his 75th birthday.", and (ii) SPC hereby agrees to amend that certain
Consulting Agreement, dated as of October 16, 2001, by and between SPC and
Shoreline Enterprises LLC, by deleting the second sentence of Section 1 thereof
in its entirety and replacing it with the following sentence: "The Company shall
be free to determine the extent and manner of services to be provided by MW."
8. REPRESENTATIONS AND WARRANTIES OF SELLERS. Each Seller hereby represents and
warrants to SPC, severally and not jointly, as follows:
(a) SECURITIES OWNERSHIP. Such Seller owns 100% of all right, title
and interest in and to the Stock held by such Seller, free and clear of any and
all security interests, liens, encumbrances, claims, pledges, rights, charges,
escrows, options, rights of first refusal, contracts, commitments,
understandings and obligations of any kind ("RESTRICTIONS"), but subject to the
terms of the Stockholders Agreement. Such Seller has not sold, negotiated,
assigned, pledged, hypothecated or otherwise transferred any of the Stock held
by such Seller or any interest therein. Such Seller has the full right, power
and authority to sell and transfer the Stock held by such Seller pursuant to
this Agreement, to the effect that the Company shall at the Closing be the
lawful record and beneficial owner of such Stock free and clear of any and all
Restrictions.
(b) AUTHORITY, NO CONFLICTS. This Agreement has been duly and
validly authorized by all necessary action by such Seller and is a valid and
binding obligation of such Seller, enforceable in accordance with its terms. The
execution and delivery of this Agreement, and consummation of the transactions
contemplated hereby, will not conflict in any way with the terms of, and will
not cause the termination or breach of any agreement, note, bond, mortgage,
indenture, license, lease or other instrument to which such Seller is a party or
by which such Seller is bound or with any applicable law, rule, regulation,
judgment, order or decree of any government, governmental instrumentality or
court to which such Seller is subject. Neither the execution, delivery nor
performance of this Agreement by such Seller requires the consent of any third
party.
9. REPRESENTATIONS AND WARRANTIES OF XXXXXXXXX. Xxxxxxxxx hereby represents and
warrants to SPC as follows:
(a) AUTHORITY, NO CONFLICTS. This Agreement has been duly and
validly authorized by all necessary action by Xxxxxxxxx and is a valid and
binding obligation of Xxxxxxxxx, enforceable in accordance with its terms. The
execution and delivery of this
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Agreement, and consummation of the transactions contemplated hereby, will not
conflict in any way with the terms of, and will not cause the termination or
breach of any agreement, note, bond, mortgage, indenture, license, lease or
other instrument to which Xxxxxxxxx is a party or by which Xxxxxxxxx is bound or
with any applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court to which Xxxxxxxxx is subject.
Neither the execution, delivery nor performance of this Agreement by Xxxxxxxxx
requires the consent of any third party.
10. REPRESENTATIONS AND WARRANTIES OF SPC. SPC hereby represents and warrants
to the Sellers and Xxxxxxxxx as follows:
(a) AUTHORITY, NO CONFLICTS. This Agreement has been duly and
validly authorized by all necessary corporate action by SPC and is a valid and
binding obligation of SPC, enforceable in accordance with its terms. The
execution and delivery of this Agreement, and consummation of the transactions
contemplated hereby, will not conflict in any way with the terms of, and will
not cause the termination or breach of any agreement, note, bond, mortgage,
indenture, license, lease or other instrument to which SPC is a party or by
which SPC is bound or with any applicable law, rule, regulation, judgment, order
or decree of any government, governmental instrumentality or court to which SPC
is subject. Neither the execution, delivery nor performance of this Agreement by
SPC requires the consent of any third party other than those that shall be
obtained as a condition of the consummation of its initial public offering.
11. REPRESENTATIONS AND WARRANTIES OF STEAMBOAT. Steamboat hereby represents and
warrants to the Sellers and Xxxxxxxxx as follows:
(a) AUTHORITY, NO CONFLICTS. This Agreement has been duly and
validly authorized by all necessary action by Steamboat and is a valid and
binding obligation of Steamboat, enforceable in accordance with its terms. The
execution and delivery of this Agreement, and consummation of the transactions
contemplated hereby, will not conflict in any way with the terms of, and will
not cause the termination or breach of any agreement, note, bond, mortgage,
indenture, license, lease or other instrument to which Steamboat is a party or
by which Steamboat is bound or with any applicable law, rule, regulation,
judgment, order or decree of any government, governmental instrumentality or
court to which Steamboat is subject. Neither the execution, delivery nor
performance of this Agreement by Steamboat requires the consent of any third
party.
12. REPRESENTATIONS AND WARRANTIES OF XXXXXX. Xxxxxx hereby represents and
warrants to the Sellers and Xxxxxxxxx as follows:
(a) AUTHORITY, NO CONFLICTS. This Agreement has been duly and
validly authorized by all necessary action by Xxxxxx and is a valid and binding
obligation of Xxxxxx, enforceable in accordance with its terms. The execution
and delivery of this Agreement, and consummation of the transactions
contemplated hereby, will not conflict in any way with the terms of, and will
not cause the termination or breach of any agreement, note, bond, mortgage,
indenture, license, lease or other instrument to which Xxxxxx is a party or by
which Xxxxxx is bound or with any applicable law, rule, regulation, judgment,
order or decree of any government, governmental
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instrumentality or court to which Xxxxxx is subject. Neither the execution,
delivery nor performance of this Agreement by Xxxxxx requires the consent of any
third party.
13. FURTHER ASSURANCES. Each party shall execute all certificates, instruments
and other documents and take all actions reasonably requested by the other party
to effectuate the purposes of this Agreement and to consummate and evidence the
consummation of the transactions herein provided.
14. CHOICE OF LAW. This Agreement shall be governed and construed by the
internal laws of the State of Illinois, without giving effect to choice of law
principles. The Parties agree that any legal action or proceeding arising out of
or relating to the Agreement shall be instituted in a court located in Chicago,
Illinois. The Parties irrevocably and unconditionally agree to submit to the
jurisdiction of such court in any such action or proceeding and expressly waive
any objection relating to the basis for personal or in rem jurisdiction or to
venue which they now or hereafter have in any such action or proceeding.
15. ENTIRE AGREEMENT. This Agreement and the other agreements contemplated
hereby or attached hereto constitute the entire agreement and understanding
between the Parties concerning the subject matter herein and supersedes all
previous agreements or understandings, whether written or oral, relating to the
subject matter herein. Each Party further represents and warrants that all
representations made by any Party as an inducement to cause any other Party to
enter into this Agreement are contained in this Agreement.
16. COUNTERPARTS; FAX. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but all of which together
shall constitute but one agreement. The delivery by fax of a signed counterpart
shall suffice as effective delivery.
17. EXPENSES. SPC shall reimburse Sellers and Xxxxxxxxx for their respective
legal, accounting and other costs and expenses incurred in connection with this
Agreement and the transactions contemplated by this Agreement.
18. SUCCESSORS AND SEVERABILITY. This Agreement shall be binding upon and inure
to the benefit of the successors, heirs and assigns of each Party. If any
provision hereof is held to be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of such prohibition or
invalidity and shall not be deemed to invalidate the remainder of such provision
or the remaining provisions hereof.
19. AGREEMENT CONDITIONED UPON OCCURRENCE OF IPO Anything contained herein to
the contrary notwithstanding, the respective obligation of the Parties hereto
are expressly conditioned upon the consummation of the IPO on or prior to May 1,
2005, and if the IPO has not occurred by that date, this Agreement shall
terminate and be null and void; PROVIDED, HOWEVER that Sections 7 and 17 are not
conditioned upon the consummation of the IPO on or prior to May 1, 2005, and
shall survive the termination of this Agreement.
* * * * *
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IN WITNESS WHEREOF, each Party has signed this Agreement as of May 10,
2004:
STANDARD PARKING CORPORATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
SP ASSOCIATES WAVERLY PARTNERS, L.P.
By: SP Managers, L.P., Managing Partner
By: Standard Managers, Inc., General Partner
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------- ---------------------------------
Name: Xxxxxxx Xxxxx Name: Xxxxx X. Xxxxxxxxx
Title: Vice President Title: General Partner
XXXXX X. XXXXXXXXX GST EXEMPT TRUST
By: /s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxx X. Xxxxxxxxx
------------------------------------- ------------------------------------
Name: Xxxxx X. Xxxxxxxxx XXXXX X. XXXXXXXXX
Title: Trustee
For purposes of Section 5 and Section 11 only:
STEAMBOAT INDUSTRIES LLC
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
For purposes of Section 5 and Section 12 only:
/s/ Xxxx X. Xxxxxx
---------------------------------------------
XXXX X. XXXXXX
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Schedule A
Principal Amount
Outstanding After Accrual
Interest Payment Date Principal Amount Outstanding Interest at 11.75% per annum Of Interest
1 $ 5,000,000 $ 146,875 $ 5,146,875
2 $ 5,146,875 $ 151,189 $ 5,298,064
3 $ 5,298,064 $ 155,631 $ 5,453,695
4 $ 5,453,695 $ 160,202 $ 5,613,897
5 $ 5,613,897 $ 164,908 $ 5,778,806
6 $ 5,778,806 $ 169,752 $ 5,948,558
7 $ 5,948,558 $ 174,739 $ 6,123,297
8 $ 6,123,297 $ 179,872 $ 6,303,169
Assumed IPO Price $ 15.00
Total shares for principal 333,333
Shares for unpaid interest 86,878
Total Shares Pledged 420,211
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EXHIBIT A
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE SOLD,
ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT IN
COMPLIANCE WITH, OR PURSUANT TO AN EXEMPTION FROM, THE REQUIREMENTS OF SUCH
ACT OR SUCH LAWS.
----------
STANDARD PARKING CORPORATION
5% PROMISSORY NOTE
DUE _________ __, 2006
_______ __, 2004
$[_____________]
STANDARD PARKING CORPORATION, a Delaware corporation (the "ISSUER"), for
value received, hereby promises (i) to pay to the Holder (as defined below) on
the Final Maturity Date (as defined below) the principal amount of
_______________ Dollars ($___________), as such principal amount is increased
pursuant to SECTION 2.3(c), plus any accrued and unpaid interest (or such other
amounts as provided herein), in such coin or currency of the United States of
America as at the time of payment shall be legal tender for public and private
debts, at the principal office of the Issuer, and (ii) to pay, subject to
SECTION 2.3(c), on March 31, June 30, September 30 and December 31 of each year
(each, an "INTEREST PAYMENT DATE") interest (computed on the basis of a 360-day
year) at said office, in like coin or currency, on the unpaid portion of said
principal amount, such payments (each, an "INTEREST PAYMENT") to commence on
[__________ __], 2004, at a fixed rate equal to 5% per annum (the "NOTE INTEREST
RATE"), subject to SECTION 5.3 hereof. If the Issuer does not pay on such
Interest Payment Date the corresponding Interest Payment or a portion thereof,
the principal amount outstanding hereunder shall be increased pursuant to
SECTION 2.3(c). The Issuer may prepay the unpaid principal balance of this Note
and interest accrued thereon at any time, in whole or in part, without premium
or penalty.
ARTICLE 1
DEFINITIONS
DEFINITIONS. The terms defined in this Article whenever used in this Note shall
have the respective meanings hereinafter specified.
"AFFILIATE" or "AFFILIATES" means, with respect to any specified Person, any
other Person that, directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with the Person
specified. For purposes of this definition, control of a Person means the power,
direct or indirect, to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
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"BUSINESS DAY" means each day other than a Saturday, Sunday, or any day on which
banking institutions in the State of New York or
Illinois are authorized or
obligated by law or executive order to be closed.
"DEFAULT INTEREST RATE" shall be equal to the Note Interest Rate plus 2% per
annum.
"EVENT OF DEFAULT" shall have the meaning specified in SECTION 5.1.
"FINAL MATURITY DATE" shall mean the date that is two years after the date of
this Note.
"HOLDER" or "HOLDERS" means ___________or any other Person who shall become a
holder of this Note as provided in SECTION 2 hereof.
"INTEREST PAYMENT" shall have the meaning specified in the introductory
paragraph to this Note.
"INTEREST PAYMENT DATE" shall have the meaning specified in the introductory
paragraph to this Note.
"ISSUER" means
Standard Parking Corporation, a Delaware corporation.
"MAXIMUM RATE" shall have the meaning specified in SECTION 5.3(b).
"NOTE" means this Note.
"NOTE INTEREST RATE" shall have the meaning specified in the introductory
paragraph to this Note.
"PERSON" means an individual, a limited liability company, a joint stock
company, a corporation, a partnership, an association, a trust, joint venture,
an unincorporated organization, any government, governmental department or
agency or political subdivision thereof or any other entity.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any successor
federal statute, and the rules and regulations thereunder, all as the same shall
be in effect at the time.
ARTICLE 2
EXCHANGES AND TRANSFER; INTEREST PAYMENTS
SECTION 2.1. LOSS, THEFT, DESTRUCTION OF NOTE. Upon receipt of evidence
satisfactory to the Issuer of the loss, theft, destruction, or mutilation of the
Note and, in the case of any such loss, theft, or destruction, upon receipt of
indemnity or security reasonably satisfactory to the Issuer or, in the case of
any such mutilation, upon surrender and cancellation of the Note, the Issuer
will make and deliver, in lieu of such lost, stolen, destroyed, or mutilated
Note, a new Note of like tenor and unpaid principal amount dated as of the date
hereof. The Note shall be held and owned upon the express condition that the
provisions of this SECTION 2.1 are exclusive with respect to the replacement of
a mutilated, destroyed, lost, or stolen Note and shall preclude any and all
other rights and remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement of negotiable
instruments or other securities without their surrender.
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SECTION 2.2. WHO DEEMED ABSOLUTE OWNER. The Issuer may deem the Person
or Persons in whose name the Note or Notes shall be registered upon the registry
books of the Issuer to be, and may treat such Person or Persons as, the absolute
owner or owners of the Note or Notes (whether or not the Notes shall be
overdue), as the case may be, for the purpose of receiving payment of or on
account of the principal of the Note or Notes, as the case may be, and for all
other purposes, and the Issuer shall not be affected by any notice to the
contrary. All such payments shall be valid and effectual to satisfy and
discharge the liability upon the Note or Notes, as the case may be, to the
extent of the sum or sums so paid.
SECTION 2.3. INTEREST PAYMENTS.
(a) The Issuer shall pay interest at a fixed rate equal to the Note
Interest Rate, subject to SECTION 5.3 hereof, on each Interest Payment Date,
prorated on a daily basis for partial periods and computed on the basis of a
360-day year of twelve 30-day months and for any period shorter than a full
period for which interest is computed, the amount of interest payable will be
computed on the basis of the actual number of days elapsed in such 30-day month,
at the principal office of the Issuer in such coin or currency of the United
States of America as at the time of payment shall be legal tender for public and
private debts, on the unpaid portion of any principal amount plus any interest
due and owing but not paid on any prior Interest Payment Date. Interest payments
shall commence on [__________ __], 2004.
(b) The Issuer shall pay quarterly on the Interest Payment Date an
amount equal to the interest due and payable to the Holder on the Interest
Payment Date, as well as any accrued and unpaid interest from prior Interest
Payment Dates.
(c) Notwithstanding the foregoing, if the Issuer does not pay on an
Interest Payment Date the corresponding Interest Payment or a portion thereof in
cash, the principal amount of this Note shall be increased by an amount equal to
2.9375% of the then-outstanding principal amount (less the portion of the
Interest Payment paid, if any, in cash) in lieu of and in satisfaction of the
payment of such Interest Payment.
ARTICLE 3
STATUS; RESTRICTIONS ON TRANSFER
SECTION 3.1. STATUS. Subject to SECTION 3.2 below, this Note is a
direct, general and unconditional obligation of the Issuer, and constitutes a
valid and legally binding obligation of the Issuer, enforceable in accordance
with its terms subject, as to enforcement, to bankruptcy, insolvency,
reorganization, and other similar laws of general applicability relating to or
affecting creditors' rights and to general principals of equity. The Issuer
agrees that it will not, without the prior written consent of the Holder, take
any action, nor fail to take any action, which would in any manner adversely
affect the rights of the Holder pursuant to this Note or subject the Holder to
any liability.
SECTION 3.2. RESTRICTIONS ON TRANSFER. This Note has not been and will
not be registered under the Securities Act. This Note may not be offered, sold
or transferred, directly or indirectly, except to a party directly or indirectly
related to the Holder.
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ARTICLE 4
COVENANTS
The Issuer covenants and agrees that so long as this Note shall be outstanding:
SECTION 4.1. PAYMENT OF NOTE. The Issuer will punctually, according to
the terms hereof, (a) pay or cause to be paid all amounts due under this Note
and (b) subject to SECTION 2.3(c), pay any interest due (including accrued
interest).
SECTION 4.2. NOTICE OF DEFAULT. If any one or more events occur which
constitute or which, with the giving of notice or the lapse of time or both,
would constitute an Event of Default or if the Holder shall demand payment or
take any other action permitted upon the occurrence of any such Event of
Default, the Issuer will forthwith give notice to the Holder, specifying the
nature and status of the Event of Default or other event or of such demand or
action, as the case may be.
ARTICLE 5
REMEDIES
SECTION 5.1. EVENTS OF DEFAULT. "EVENT OF DEFAULT" wherever used herein
means any one of the following events:
(a) default in the due and punctual payment of the principal of, or
any other amount owing in respect of (other than to the extent that interest may
be accrued in accordance with SECTION 2.3(c)), this Note when and as the same
shall become due and payable, and continuance of such default for a period of 30
days after notice thereof;
(b) default in the performance or observance of any covenant or
agreement of the Issuer in this Note (other than a covenant or agreement, a
default in the performance of which is specifically provided for elsewhere in
this SECTION 5.1), and the continuance of such default for a period of 30 days
after there has been given to the Issuer a written notice specifying such
default and requiring it to be remedied;
(c) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Issuer as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Issuer under the Federal Bankruptcy Code or
any other applicable federal or state law, or appointing a receiver, liquidator,
assignee, trustee or sequestrator (or other similar official) of the Issuer or
of any substantial part of its property, or ordering the winding-up or
liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 30 calendar days; or
(d) the institution by the Issuer (unless consented to by the
Holder) of proceedings to be adjudicated as bankrupt or insolvent, or the
consent by it to the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or any other
applicable federal or state law, or the consent by it to the filing of any such
petition or to the appointment of a receiver, liquidator, assignee, trustee or
sequestrator (or other similar official) of the Issuer or of any substantial
part of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability
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to pay its debts generally as they become due, or the taking of trust action by
the Issuer in furtherance of any such action.
SECTION 5.2. EFFECTS OF DEFAULT. If an Event of Default occurs and is
continuing, then and in every such case the Holder may declare the principal and
interest on this Note to be due and payable immediately, by a notice in writing
to the Issuer, and upon any such declaration, the Issuer shall pay to the Holder
the outstanding principal amount of the Note plus all accrued and unpaid
interest through the date the Note is paid in full.
SECTION 5.3. DEFAULT INTEREST RATE.
(a) If any portion of the principal and interest of this Note shall
not be paid at the Final Maturity Date (or earlier if accelerated pursuant to
SECTION 5.2) such principal of and interest on this Note which is due and owing
but not paid shall, without limiting the Holder's right under this Note, bear
interest at the Default Interest Rate until paid in full.
(b) Notwithstanding anything herein to the contrary, if at any time
the applicable interest rate as provided for herein shall exceed the maximum
lawful rate at which interest may be contracted for, charged, taken or received
by the Holder in accordance with the applicable laws of the State of
Illinois
(the "MAXIMUM RATE"), the rate of interest applicable to this Note shall be
limited to the Maximum Rate.
SECTION 5.4. REMEDIES NOT WAIVED. No course of dealing between the
Issuer and the Holder or any delay in exercising any rights hereunder shall
operate as a waiver by the Holder.
ARTICLE 6
MISCELLANEOUS
SECTION 6.1. WITHHOLDING. To the extent required by applicable law, the
Issuer may withhold amounts for or on account of any taxes imposed or levied by
or on behalf of any taxing authority in the United States having jurisdiction
over the Issuer from any payments made pursuant to this Note.
SECTION 6.2. EXPENSES. The Issuer agrees to pay all reasonable costs
incurred by the Holder in collecting, or attempting to collect payments of
principal, interest and or other amounts due under this Note, including
reasonable attorney's fees, whether or not involving litigation and/or
appellate, administrative or bankruptcy proceedings.
SECTION 6.3. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED AND CONSTRUED BY
THE INTERNAL LAWS OF THE STATE OF
ILLINOIS, WITHOUT GIVING EFFECT TO CHOICE OF
LAW PRINCIPLES. THE PARTIES AGREE THAT ANY LEGAL ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THE AGREEMENT SHALL BE INSTITUTED IN XXX XXXXXX XX XXX
XXXXX XX XXXXXXXX, XXXXXX OF XXXX. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY
AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS IN ANY SUCH ACTION OR
PROCEEDING AND EXPRESSLY WAIVE ANY OBJECTION RELATING TO THE BASIS FOR PERSONAL
OR IN REM JURISDICTION OR TO VENUE WHICH THEY NOW OR HEREAFTER HAVE IN ANY SUCH
ACTION OR PROCEEDING.
5
SECTION 6.4. HEADINGS. The headings of the Articles and Sections of this
Note are inserted for convenience only and do not constitute a part of this
Note.
SECTION 6.5. AMENDMENTS. Any provision of this Note may be amended,
modified, or waived if and only if the Holder has consented in writing to such
amendment, modification or waiver.
[SIGNATURE PAGE FOLLOWS.]
6
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed by its duly
authorized officer under its corporate seal, attested by its duly authorized
officer, on the date of this Note.
STANDARD PARKING CORPORATION
By:
----------------------------------------
Name:
Title:
ATTEST:
By:
--------------------------
Name:
Title:
[Corporate Seal]
7
EXHIBIT A TO THE NOTE
[FORM OF NOTICE OF ACCRUAL]
TO ________________:
Standard Parking Corporation, the issuer of the Note, dated as of May __, 2004,
(the "NOTE") hereby exercises its option not to make an interest payment (or
portion thereof) on _______, 200_, in accordance with the terms of the Note, and
hereby notifies the Holder that $____________, representing the interest payable
on such date (or portion thereof, if a partial interest payment has been made),
shall remain accrued and unpaid for purposes of this Note.
Dated:
STANDARD PARKING CORPORATION
By:
-------------------------
Name:
Title:
Please print name and address:
(including zip code number)
1
EXHIBIT B
PLEDGE AND ESCROW AGREEMENT
THIS PLEDGE AND ESCROW AGREEMENT (the "Pledge and Escrow Agreement") is
made as of this ____ day of May, 2004, by and among [__________], as escrow
agent ("Escrowee"), Steamboat Industries LLC ("Steamboat"), SP Associates
("SP"), Waverly Partners, L.P. ("Waverly"), the Xxxxx X. Xxxxxxxxx GST Exempt
Trust (the "Trust" and together with SP and Waverly, the "Sellers").
WHEREAS, Steamboat,
Standard Parking Corporation ("SPC"), Xxxx X. Xxxxxx
("Xxxxxx") and the Sellers, entered into that certain
Stock Purchase Agreement
as of May __, 2004 (the "Agreement") and SPC delivered certain 5% promissory
notes payable by SPC to the Sellers (the "Notes");
WHEREAS, pursuant to the Agreement, Steamboat assumed all of SPC's
liabilities under the Notes and Xxxxxx has guaranteed Steamboat's obligations
under the Notes;
WHEREAS, Steamboat is required under the terms of the Agreement to deposit
with the Escrowee certain shares of common stock of SPC as security to ensure
payment of the Notes.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. The following terms when used in this Pledge and Escrow
Agreement shall have the following meanings:
"COLLATERAL" shall mean the (i) Pledged Stock, (ii) Certificates
representing the Pledge Stock and (iii) Stock Powers.
"DEFAULT" means the occurrence of any one or more of the "Events of
Default" as that term is defined in the Notes.
"OBLIGATIONS" means all amounts which may become due to the Sellers under
the Notes.
"PLEDGED STOCK" means the [_________] shares of common stock of SPC
required to be pledged under the Agreement.
2. PLEDGE.
2.1. GRANT. To secure the timely payment of the Obligations, Steamboat
hereby pledges, hypothecates, assigns, transfers, sets over and delivers unto
the Sellers and hereby grants to Sellers a security interest in the Collateral.
The Escrowee shall hold the Collateral, together with all rights, titles,
interests, privileges and preferences pertaining or incidental thereto,
1
pursuant to the terms of this Pledge and Escrow Agreement. The Pledged Stock has
been delivered to Escrowee to be held by Escrowee on behalf of the Sellers
pursuant to the terms of this Pledge and Escrow Agreement.
2.2. RELEASE OF SECURITY INTEREST AND PLEDGE. After the Notes have been
paid and subsequent to receipt of written acknowledgment from each of the
Sellers that such payment has been made, which written acknowledgement shall be
delivered by Sellers to Escrowee upon receipt of payment of the Notes, the
security interest and pledge shall cease and terminate and any Pledged Stock not
yet returned to Steamboat shall be returned forthwith.
2.3. RIGHTS UPON NOTICE OF DEFAULT.
(a) In the event Escrowee receives written notice from the
Sellers that a Default exists with respect to any of the Obligations ("Default
Notice"), and that the Sellers have elected to foreclose upon the Pledged Stock,
Escrowee shall promptly give written notice to Steamboat of such alleged Default
and of the exercise of such election. If Escrowee has not received from
Steamboat, within twenty (20) days after the date of such notice from Escrowee,
a sworn statement that there has not been a Default, Escrowee shall deliver the
Pledged Stock to the Sellers and, upon delivery, Escrowee's responsibilities and
obligations hereunder shall terminate.
(b) Notwithstanding anything herein to the contrary, the
parties hereto agree that Sellers shall not be entitled to exercise its rights
under this Section 2.3 prior to the date that is two years after the date of
this Agreement (the "TWO YEAR ANNIVERSARY DATE"). Sellers shall not deliver a
Default Notice prior to the Two Year Anniversary Date, and Escrowee shall
disregard any Default Notice received prior to the Two Year Anniversary Date.
For the avoidance of doubt, unless the Sellers have foreclosed on the Pledged
Stock pursuant to Section 2.3 of this Agreement, the Sellers will not have the
power to vote or direct the vote of the Pledged Stock, nor will the Sellers have
the power to dispose or direct the disposition of the Pledged Stock prior to the
Two Year Anniversary Date.
(c) Upon receipt of the Pledged Stock from Escrowee, the
secured party may exercise all rights and remedies of a secured party under the
Uniform Commercial Code of
Illinois and otherwise, including, without
limitation, the right to foreclose the security interest granted herein by any
available judicial or other procedure and to take possession of the Pledged
Stock; and proceed to protect and enforce his rights or remedies either by suit
in equity or by action at law, or both.
2.4. SALE PROCEEDS. The proceeds of the sale or disposition, if any, of the
Pledged Stock or any portion thereof, shall be applied in the following order:
(i) to the payment of reasonable legal fees and costs in connection with said
foreclosure and collection of amounts due from Steamboat under the Notes; (ii)
to the payment of the Obligations; and (iii) to Steamboat if any proceeds remain
after payment of the Obligations.
3. LIABILITY OF ESCROWEE. Escrowee shall not be liable for any action
taken by it in good faith in connection with the performance of its duties
hereunder. Escrowee may accept as
2
duly executed any document or instrument required under or contemplated by this
Pledge and Escrow Agreement which purports to be executed by the proper person
or persons and is believed by Escrowee, in the exercise of ordinary care, to be
genuine and regular, provided that Escrowee first notifies the parties to this
Stock and Pledge Agreement that the Escrowee intends to exercise its duties
enumerated herein. Escrowee shall be indemnified, jointly and severally, by the
other parties hereto (or their successors), against any claims, damages or
expenses (including reasonable attorney's fees) it may incur in connection with
or by virtue of its acting in good faith in carrying out the provisions of this
Pledge and Escrow Agreement.
4. SUCCESSORS AND ASSIGNS; AMENDMENTS. This Pledge and Escrow Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors, representatives and assigns, and may be amended or
modified only by a written instrument executed by each of the parties hereto.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1. STOCK OWNERSHIP. Steamboat represents and warrants to the Sellers that
Steamboat is the lawful owner of the Collateral, free of all claims and liens,
other than the security interest hereunder with full right to deliver, pledge,
assign and transfer the Collateral to the Sellers as Collateral hereunder.
5.2. NO BREACH. Steamboat represents and warrants to the Sellers that (i)
the execution and delivery of this Pledge and Escrow Agreement and the
performance by Steamboat of its obligations hereunder are within Steamboat's
powers, and do not and will not contravene or conflict with any agreement
binding upon Steamboat, and (ii) this Pledge and Escrow Agreement is the legal,
valid and binding obligation of Steamboat enforceable against Steamboat in
accordance with its terms.
5.3. COVENANTS. So long as any of the Obligations remain outstanding,
Steamboat will, unless the Sellers shall otherwise consent in writing:
(i) promptly deliver to the Escrowee from time to time upon
request of the Sellers such Stock Powers and other documents, satisfactory
in form and substance to the Sellers, with respect to the Collateral as the
Sellers may reasonably request to preserve and protect, and to enable the
Sellers to enforce, their rights and remedies hereunder;
(ii) not sell, assign, exchange or otherwise transfer any of its
rights to any of the Collateral;
(iii) not create or suffer to exist any lien, security interest or
other charge or encumbrance against, in or with respect to, any of the
Collateral except for the pledge hereunder and the security interest and
other rights created hereby;
(iv) not make or consent to any amendment or other modification or
waiver with respect to any of the Collateral or enter into any agreement or
permit to exist any restriction with respect to any of the Collateral other
than pursuant hereto; and
3
(v) not take or fail to take any action which would in any manner
impair the enforceability of the Sellers's security interest and other
rights in any of the Collateral.
6. RESIGNATION. Escrowee may at any time resign by giving written notice
to the other parties hereto. Within ten days after Escrowee's notice of
resignation has been given, Steamboat shall, by notice given to Escrowee and the
other parties hereto, appoint a successor escrowee, which is a bank or licensed
trust company, with one or more offices in Xxxx County,
Illinois, to act
hereunder, upon which notice, and delivery by Escrowee to the successor of all
items then held, the then acting Escrowee shall be relieved from all further
duties hereunder and the successor escrowee shall have, upon acceptance of its
appointment and receipt of all escrow items, all of the duties, rights and
obligations of the former Escrowee but only to the extent that they arise
subsequent to such acceptance.
7. REPLACEMENT OF ESCROWEE. In the event the Escrowee gives written
notice of its resignation and Steamboat does not give written notice to the
resigning Escrowee of the successor appointed within the ten-day period referred
to above, then the Sellers shall designate the Successor Escrowee. In the event
the Sellers do not give written notice of the Successor Escrowee within ten days
following the end of the ten-day period referred to above; the resigning
Escrowee shall be entitled to either (i) deliver all items then held to a bank
or trust company successor designated by the resigning Escrowee in a written
notice to the other parties hereto, after twenty days has expired from the date
of such notice of resignation without notice to the resigning Escrowee of the
appointment of a successor, or (ii) continue to act as Escrowee until a
successor is appointed.
8. GENERAL PROVISIONS.
8.1. ENTIRE AGREEMENT. The Agreement and this Pledge and Escrow Agreement
represent the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior agreements with respect to the subject
matter hereof.
8.2. GOVERNING LAW. This Pledge and Escrow Agreement shall be governed and
construed by the internal laws of the State of
Illinois, without giving effect
to choice of law principles. The parties hereto agree that any legal action or
proceeding arising out of or relating to this Pledge and Escrow Agreement shall
be instituted in the courts of the State of
Illinois, County of Xxxx. The
parties hereto irrevocably and unconditionally agree to submit to the
jurisdiction of such courts in any such action or proceeding and expressly waive
any objection relating to the basis for personal or in rem jurisdiction or to
venue which they now or hereafter have in any such action or proceeding.
8.3. WAIVER. A waiver of one of the provisions of this Pledge and Escrow
Agreement shall not affect any of the other provisions of this Pledge and Escrow
Agreement, such that the remaining provisions will remain in full force and
effect. The failure of any party to enforce any of the provisions of this Pledge
and Escrow Agreement shall not be deemed a waiver thereof. No provisions of this
Pledge and Escrow Agreement shall be deemed to have been waived unless it shall
be in writing and signed by the waiving party. A waiver in writing at any time
of any of the terms and conditions of this Pledge and Escrow Agreement shall not
be considered a
4
modification, cancellation or waiver of such terms or conditions as to
subsequent events unless otherwise expressly provided.
8.4. NOTICES. Each notice, consent, request or other communication required
or permitted by this Pledge and Escrow Agreement shall be in writing and shall
be deemed "given" to a party on the first to occur of any of the following: (i)
when delivered by hand to such party, (ii) on the third business day after
deposit in the U.S. Mail, postage prepaid and certified, addressed to the party
to whom it is to be given at the address set forth below beneath the signature
of the party to whom it is to be given, or (iii) on the first Business Day after
proper and timely deposit, charges prepaid, for next day delivery, with a
nationally recognized delivery service providing next day service to the
location of the recipient, addressed to the party to whom it is to be given at
the address set forth below beneath the signature of the party to whom it is to
be given. Copies of any notices sent to Steamboat shall be sent to
[____________] and copies of any notices sent to the Sellers shall be sent to
[____________]. Any person at any time may change the address at which he, she
or it is to be given notice by giving notice to the other parties hereto in the
foregoing manner. "Business Day" shall mean any date other than a Saturday or
Sunday. Copies of any notices sent to the then acting Escrowee shall be sent to
the other parties.
8.5. SEVERABILITY. Each section, clause, subclause, provision or part of
this Pledge and Escrow Agreement shall be severable from each other, and, if for
any reason any section, clause, subclause or provision or part is invalid or
unenforceable, such invalidity or unenforceability shall not prejudice or in any
way affect the validity or enforceability of any other section, clause,
subclause, provision or part hereof.
8.6. HEADINGS. The section headings and subtitles used in this Escrow
Agreement are used for purposes of convenience only and are not to be considered
in construing or interpreting this Pledge and Escrow Agreement.
8.7. COUNTERPARTS. This Pledge and Escrow Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
8.8. GENDER. Wherever in this Pledge and Escrow Agreement the masculine,
feminine or neuter gender is used, such usage shall be deemed to include all
other genders as well, and singular usage shall include plural usage, and visa
versa, all as the context shall require.
THE NEXT PAGE IS THE SIGNATURE PAGE
5
IN WITNESS WHEREOF, each party has signed this Pledge and Escrow Agreement as of
May ___, 2004:
STEAMBOAT INDUSTRIES LLC
By:
---------------------------------
Name:
------------------------------
Title:
------------------------------
SP ASSOCIATES
By:
----------------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
WAVERLY PARTNERS, L.P.
By:
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: General Partner
XXXXX X. XXXXXXXXX GST EXEMPT TRUST
By:
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Trustee
[ESCROWEE]
By:
---------------------------------
Name:
------------------------------
Title:
------------------------------
6
EXHIBIT C
GUARANTY
FOR VALUE RECEIVED and in consideration of the holders ("Holders") of 5%
promissory notes due ________ __, 2006 (the "Notes") issued by
Standard Parking
Corporation, a Delaware corporation (the "Company"), consenting to the
assumption of the Company's liabilities under the Notes by Steamboat Industries
LLC ("Steamboat") and the discharge of all liabilities of the Company under the
Notes, the undersigned hereby unconditionally guarantees the full and prompt
payment when due, whether by acceleration or otherwise, and at all times
thereafter, of all obligations of Steamboat to the Holders under the Notes,
howsoever created, arising or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing, or due or to become due (all such
obligations being hereinafter collectively called "Liabilities"), and the
undersigned further agrees to pay all reasonable out-of-pocket expenses
(including reasonable attorneys' fees and legal expenses) paid or incurred by
the Holders in endeavoring to collect the Liabilities, or any part thereof, and
in enforcing this guaranty.
The undersigned agrees that, in the event of (a) the occurrence of an Event
of Default under the Notes, or (b) the death or incompetency of the undersigned,
if the executor or other representative of the undersigned's estate (the
"Estate") does not assume or reaffirm in writing the Estate's liability under
this guaranty within ninety (90) days after the Holders give written notice to
the Estate requesting its election whether or not to assume or reaffirm its
liability under this guaranty, and if such event shall occur at a time when any
of the Liabilities may not then be due and payable, the undersigned will pay to
the Holders forthwith the full amount which would be payable hereunder by the
undersigned if all Liabilities were then due and payable.
This guaranty shall in all respects be a continuing, absolute and
unconditional guaranty, and shall remain in full force and effect
(notwithstanding, without limitation, the death or incompetency of the
undersigned) until such time as all Liabilities have been paid in full.
The undersigned agrees that if at any time all or any part of any payment
theretofore applied by the Holders to any of the Liabilities is or must be
rescinded or returned by the Holders for any reason whatsoever (including,
without limitation, the insolvency, Bankruptcy or reorganization of Steamboat),
such Liabilities shall, for the purposes of this guaranty, to the extent that
such payment is or must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by the Holders, and this guaranty
shall continue to be effective or be reinstated, as the case may be, as to such
Liabilities, all as though such application by the Holders had not been made.
The Holders may, from time to time, at their sole discretion and without
notice to the undersigned, take any or all of the following actions: (a) retain
or obtain a security interest in any property to secure any of the Liabilities
or any obligation hereunder, (b) retain or obtain the primary or secondary
obligation of any obligor or obligors, in addition to the undersigned, with
respect to any of the Liabilities, (c) extend or renew for one or more periods
(whether or not
1
longer than the original period), alter or exchange any of the Liabilities, or
release or compromise any obligation of the undersigned hereunder or any
obligation of any nature of any other obligor with respect to any of the
Liabilities, (d) release its security interest in, or surrender, release or
permit any substitution or exchange for, all or any part of any property
securing any of the Liabilities or any obligation hereunder, or extend or renew
for one or more periods (whether or not longer than the original period) or
release, compromise, alter or exchange any obligations of any nature of any
obligor with respect to any such property, and (e) resort to the undersigned for
payment of any of the Liabilities, whether or not the Holders (i) shall have
resorted to any property securing any of the Liabilities or any obligation
hereunder or (ii) shall have proceeded against any other obligor primarily or
secondarily obligated with respect to any of the Liabilities (all of the actions
referred to in preceding clauses (i) and (ii) being hereby expressly waived by
the undersigned).
Any amount received by the Holders from whatsoever source on account of the
Liabilities may be applied by it toward the payment of such of the Liabilities,
and in such order of application, as the Holders may from time to time elect.
The undersigned hereby expressly waives: (a) notice of the acceptance by
the Holders of this guaranty, (b) notice of the existence or creation or
non-payment of all or any of the Liabilities, (c) presentment, demand, notice of
dishonor, protest and all other notices whatsoever and (d) all diligence in
collection or protection of or realization upon the Liabilities or any thereof,
any obligation hereunder, or any security for or guaranty of any of the
foregoing.
Notwithstanding any payment made by or for the account of the undersigned
pursuant to this guaranty, the undersigned shall not be subrogated to any right
of the Holders until such time as the Holders shall have received final payment
in cash of the full amount of all Liabilities.
The Holders may, from time to time, without notice to the undersigned,
assign or transfer any or all of the Liabilities or any interest therein; and,
notwithstanding any such assignment or transfer or any subsequent assignment or
transfer thereof, such Liabilities shall be and remain Liabilities for the
purposes of this guaranty, and each and every immediate and successive assignee
or transferee of any of the Liabilities or of any interest therein shall, to the
extent of the interest of such assignee or transferee in the Liabilities, be
entitled to the benefits of this guaranty to the same extent as if such assignee
or transferee were the Holders.
The undersigned hereby warrants to the Holders that the undersigned now has
and will continue to have independent means of obtaining information concerning
the affairs, financial condition and business of Steamboat. The Holders shall
not have any duty or responsibility to provide the undersigned with any credit
or other information concerning the affairs, financial condition or business of
Steamboat which may come into the Holders's possession.
No delay on the part of the Holders in the exercise of any right or remedy
shall operate as a waiver thereof, and no single or partial exercise by the
Holders of any right or remedy shall preclude other or further exercise thereof
or the exercise of any other right or remedy; nor shall any modification or
waiver of any of the provisions of this guaranty be binding upon the Holders
except as expressly set forth in a writing duly signed and delivered on behalf
of the Holders. No
2
action of the Holders permitted hereunder shall in any way affect or impair the
rights of the Holders and the obligations of the undersigned under this
guaranty. For the purposes of this guaranty, Liabilities shall include all
obligations of Steamboat to the Holders under the Notes notwithstanding any
right or power of Steamboat or anyone else to assert any claim or defense as to
the invalidity or unenforceability of any such obligation, and no such claim or
defense shall affect or impair the obligations of the undersigned hereunder. The
obligations of the undersigned under this guaranty shall be absolute and
unconditional irrespective of any circumstance whatsoever which might constitute
a legal or equitable discharge or defense of the undersigned. The undersigned
hereby acknowledges that there are no conditions to the effectiveness of this
guaranty.
This guaranty shall be binding upon the undersigned, and upon the heirs and
legal representatives of the undersigned; and all references herein to Steamboat
shall be deemed to include any successor or successors, whether immediate or
remote, to Steamboat.
The unenforceability or invalidity of any provision of this guaranty shall
not affect the enforceability or validity of any other provision herein and the
invalidity or unenforceability of any provision of this guaranty to any person
or circumstance shall not affect the enforceability or validity of such
provision as it may apply to other persons or circumstances.
THIS GUARANTY SHALL BE GOVERNED AND CONSTRUED BY THE INTERNAL LAWS OF THE
STATE OF
ILLINOIS, WITHOUT GIVING EFFECT TO CHOICE OF LAW PRINCIPLES. THE
PARTIES AGREE THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THE GUARANTY SHALL BE INSTITUTED IN XXX XXXXXX XX XXX XXXXX XX XXXXXXXX, XXXXXX
OF XXXX. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY AGREE TO SUBMIT TO THE
JURISDICTION OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING AND EXPRESSLY WAIVE
ANY OBJECTION RELATING TO THE BASIS FOR PERSONAL OR IN REM JURISDICTION OR TO
VENUE WHICH THEY NOW OR HEREAFTER HAVE IN ANY SUCH ACTION OR PROCEEDING.
[SIGNATURE ON NEXT PAGE]
3
This Guaranty is SIGNED AND DELIVERED as of the ___ day of ________, 2004.
------------------------
Xxxx X. Xxxxxx
4
EXHIBIT D
ASSIGNMENT, ASSUMPTION, CONSENT AND DISCHARGE AGREEMENT
This Assignment, Assumption, Consent and Discharge Agreement ("AGREEMENT")
is made as of ________ ___, 2004, by and among Standard Parking Corporation
("SPC"), Steamboat Industries LLC ("STEAMBOAT"), SP Associates ("SP"), Waverly
Partners, L.P. ("WAVERLY") and the Xxxxx X. Xxxxxxxxx GST Exempt Trust (the
"TRUST" and together with SP and Waverly, the "SELLERS"). The parties to this
Agreement are sometimes referred to herein individually as "PARTY" or
collectively as "PARTIES."
RECITALS
WHEREAS, the Parties have entered into a
Stock Purchase Agreement dated as
of the date hereof (the "PURCHASE AGREEMENT") (all capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to them in the
Purchase Agreement);
WHEREAS, pursuant to the Purchase Agreement, SPC has issued to each Seller
a Promissory Note;
WHEREAS, pursuant to the Purchase Agreement, Steamboat desires to assume
all of SPC's obligations under the Promissory Notes.
NOW, THEREFORE, in consideration for the mutual agreements set forth herein
and in the Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
20. SPC hereby assigns to Steamboat, and Steamboat hereby assumes from SPC,
all of SPC's obligations under the Promissory Notes.
21. The Sellers hereby consent to the assignment to and assumption by
Steamboat of all of SPC's obligations under the Promissory Notes.
22. The Sellers acknowledge the delivery of all of the items set forth in
Section 5(a) through 5(c) of the Purchase Agreement.
23. The Sellers hereby release and discharge SPC from all liabilities and
obligations under the Promissory Notes.
24. The Parties hereby agree that for all purposes of the Promissory Notes,
Steamboat shall be deemed to be the "Issuer," as such term is defined and used
in the Promissory Notes.
25. Steamboat hereby agrees that it shall prepay to the Sellers an
aggregate principal amount of $1 million on the Promissory Notes, each Seller to
receive its Pro Rata Portion thereof, in the event that the over-allotment
option in the IPO is exercised in full (but not otherwise), payable at the
closing thereof.
1
IN WITNESS WHEREOF, each Party has signed this Agreement as of
May ___, 2004.
STANDARD PARKING CORPORATION STEAMBOAT INDUSTRIES LLC
By: By:
-------------------------------------- -----------------------------------
Name: Name:
------------------------------- ---------------------------
Title: Title:
------------------------------- --------------------------
SP ASSOCIATES WAVERLY PARTNERS, L.P.
By: By:
------------------------------------------- -----------------------------------
Name: Name: Xxxxx X. Xxxxxxxxx
-------------------------------------- Title: General Partner
Title:
-------------------------------------
XXXXX X. XXXXXXXXX GST EXEMPT TRUST
By:
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Trustee
2
