1
Exhibit 2.1
==============================================================================
COMBINATION AGREEMENT
by and among
THE STANDARD OWNERS
NAMED ON THE SIGNATURE PAGES HERETO
and
APCOA, INC.
dated as of
January 15, 1998
==============================================================================
2
TABLE OF CONTENTS
Page
Number
------
ARTICLE I
Certain Definitions
Section 1.1. "Accounting Firm".......................................... 1
Section 1.2. "Action"................................................... 1
Section 1.3. "Affiliate"................................................ 1
Section 1.4. "Agreement"................................................ 2
Section 1.5. "AMG"...................................................... 2
Section 1.6. "Antitrust Laws"........................................... 2
Section 1.7. "APCOA".................................................... 2
Section 1.8. "APCOA Affiliated Group"................................... 2
Section 1.9. "APCOA Balance Sheet"...................................... 2
Section 1.10. "APCOA Business Condition"................................. 2
Section 1.11. "APCOA Common Stock"....................................... 2
Section 1.12. "APCOA Damages"............................................ 2
Section 1.13. "APCOA Financial Statements"............................... 2
Section 1.14. "APCOA Income Statement"................................... 2
Section 1.15. "APCOA Indemnitees"........................................ 2
Section 1.16. "APCOA Leased Real Property"............................... 2
Section 1.17. "APCOA Leases"............................................. 2
Section 1.18. "APCOA Licenses ".......................................... 2
Section 1.19. "APCOA Preferred Stock".................................... 3
Section 1.20. "APCOA Statement of Cash Flows"............................ 3
Section 1.21. "APCOA's Warranty Period".................................. 3
Section 1.22. "Audited 1997 APCOA Financial Statements".................. 3
Section 1.23. "Audited 1997 Standard Financial Statements"............... 3
Section 1.24. "Audited Standard Financial Statements".................... 3
Section 1.25. "Basket"................................................... 3
Section 1.26. "Century".................................................. 3
Section 1.27. "Claims"................................................... 3
Section 1.28. "Closing".................................................. 3
Section 1.29. "Closing Date"............................................. 3
Section 1.30. "Code"..................................................... 3
Section 1.31. "Combination".............................................. 3
Section 1.32. "Company Employee Benefit Plans"........................... 3
Section 1.33. "Consulting Agreement"..................................... 3
Section 1.34. "CTC"...................................................... 3
Section 1.35. "Current Employees"........................................ 4
-i-
3
Page
Number
------
Section 1.36. "Distribution Amount"...................................... 4
Section 1.37. "Due Diligence Agreement".................................. 4
Section 1.38. "Due Diligence Out Termination Date"....................... 4
Section 1.39. "Employee Benefit Plans"................................... 4
Section 1.40. "Employees"................................................ 4
Section 1.41. "Employment Agreement"..................................... 4
Section 1.42. "Encumbrances"............................................. 4
Section 1.43. "Environmental Law"........................................ 4
Section 1.44. "ERISA".................................................... 4
Section 1.45. "ERISA Affiliate".......................................... 4
Section 1.46. "Escrow Agent"............................................. 4
Section 1.47. "Escrow Agreement"......................................... 4
Section 1.48. "Escrowed Amount".......................................... 4
Section 1.49. "Estimated DA Statement"................................... 4
Section 1.50. "Estimated Distribution Amount"............................ 5
Section 1.51. "Excluded Assets".......................................... 5
Section 1.52. "Final DA Statement"....................................... 5
Section 1.53. "Former Employees"......................................... 5
Section 1.54. "FY 1997".................................................. 5
Section 1.55. "Government Authority"..................................... 5
Section 1.56. "Guarantee"................................................ 5
Section 1.57. "Historical Standard Balance Sheet"........................ 5
Section 1.58. "Historical Standard Financial Statements"................. 5
Section 1.59. "Historical Standard Income Statement"..................... 5
Section 1.60. "Historical Standard Statement of Cash Flows".............. 5
Section 1.61. "Xxxxxxx".................................................. 5
Section 1.62. "HSR Act".................................................. 5
Section 1.63. "Indemnified Party"........................................ 5
Section 1.64. "Indemnifying Party"....................................... 5
Section 1.65. "Initial DA Statement"..................................... 5
Section 1.66. "IPO"...................................................... 6
Section 1.67. "IRS"...................................................... 6
Section 1.68. "Letter Agreement"......................................... 6
Section 1.69. "Management Contracts"..................................... 6
Section 1.70. "Multiemployer Plan"....................................... 6
Section 1.71. "Notice of Disagreement"................................... 6
Section 1.72. "Parties".................................................. 6
Section 1.73. "Pension Plan"............................................. 6
Section 1.74. "Permitted Debt"........................................... 6
Section 1.75. "Permitted Encumbrance".................................... 6
Section 1.76. "person"................................................... 6
Section 1.77. "Purchase Price"........................................... 7
Section 1.78. "Returns".................................................. 7
Section 1.79. "Schedules Date"........................................... 7
-ii-
4
Page
Number
------
Section 1.80. "Special Management Contracts"............................. 7
Section 1.81. "Standard Advisors Fee".................................... 7
Section 1.82. "Standard Affiliated Group"................................ 7
Section 1.83. "Standard APCOA Shares".................................... 7
Section 1.84. "Standard Business"........................................ 7
Section 1.85. "Standard Business Condition".............................. 7
Section 1.86. "Standard Companies"....................................... 7
Section 1.87. "Standard Interests"....................................... 7
Section 1.88. "Standard Leased Real Property"............................ 7
Section 1.89. "Standard Leases".......................................... 7
Section 1.90. "Standard Licenses"........................................ 7
Section 1.91. "Standard Owners".......................................... 7
Section 1.92. "Standard Owners Damages".................................. 7
Section 1.93. "Standard Owners Indemnitees".............................. 8
Section 1.94. "Standard Owners' Warranty Period"......................... 8
Section 1.95. "Standard Transferred Companies"........................... 8
Section 1.96. "Stockholders Agreement"................................... 8
Section 1.97. "Subsidiary"............................................... 8
Section 1.98. "Taxes".................................................... 8
Section 1.99. "Taxing Authority"......................................... 8
Section 1.100. "338 Election"............................................ 8
Section 1.101. "to the knowledge of APCOA"............................... 8
Section 1.102. "to the knowledge of Standard Owners and
the Standard Companies".................................. 8
Section 1.103. "Withdrawal Liability".................................... 8
ARTICLE II
Transfer of Standard Interests; Closing
Section 2.1. Combination and Transfer................................... 8
Section 2.2. Consideration.............................................. 9
Section 2.3. Time and Place of Closing.................................. 9
Section 2.4. Closing Distribution Amount................................ 10
ARTICLE III
Representations and Warranties of Standard Owners
Section 3.1. Incorporation; Authorization; Etc.......................... 12
Section 3.2. Capitalization............................................. 13
Section 3.3. Financial Statements....................................... 14
Section 3.4. Undisclosed Liabilities.................................... 15
Section 3.5. Properties................................................. 15
-iii-
5
Page
Number
------
Section 3.6. Personal Property.......................................... 16
Section 3.7. Absence of Certain Changes................................. 17
Section 3.8. Litigation; Orders......................................... 17
Section 3.9. Intellectual Property...................................... 17
Section 3.10. Licenses, Approvals, Other Authorizations,
Consents, Reports, Etc................................... 17
Section 3.11. Labor Matters.............................................. 18
Section 3.12. Compliance with Laws....................................... 19
Section 3.13. Insurance.................................................. 19
Section 3.14. Material Contracts......................................... 19
Section 3.15. Management Contracts....................................... 19
Section 3.16. Brokers, Finders, Etc...................................... 20
Section 3.17. Hazardous Materials........................................ 20
Section 3.18. Knowledge Regarding Representations........................ 21
Section 3.19. Acquisition of Shares for Investment....................... 21
ARTICLE IV
Representations and Warranties of APCOA
Section 4.1. Incorporation; Authorization; Etc.......................... 21
Section 4.2. Capitalization............................................. 22
Section 4.3. Financial Statements....................................... 23
Section 4.4. Undisclosed Liabilities.................................... 23
Section 4.5. Properties................................................. 23
Section 4.6. Personal Property.......................................... 24
Section 4.7. Absence of Certain Changes................................. 25
Section 4.8. Litigation; Orders......................................... 25
Section 4.9. Intellectual Property...................................... 25
Section 4.10. Licenses, Approvals, Other Authorizations,
Consents, Reports, Etc................................... 25
Section 4.11. Labor Matters.............................................. 26
Section 4.12. Compliance with Laws....................................... 26
Section 4.13. Insurance.................................................. 26
Section 4.14. Material Contracts......................................... 26
Section 4.15. Management Contracts....................................... 27
Section 4.16. Brokers, Finders, Etc...................................... 27
Section 4.17. Hazardous Materials........................................ 28
Section 4.18. Knowledge Regarding Representations........................ 28
-iv-
6
Page
Number
------
ARTICLE V
Covenants of Standard Owners and APCOA
Section 5.1 Investigation of Business; Access to
Properties and Records, Etc.............................. 28
Section 5.2. Efforts; Obtaining Consents; Antitrust Laws................ 29
Section 5.3. Further Assurances......................................... 29
Section 5.4. Conduct of Business........................................ 29
Section 5.5. Public Announcements....................................... 31
Section 5.6. Financial Statements....................................... 32
Section 5.7. Schedules.................................................. 32
ARTICLE VI
Employee Benefits
Section 6.1. Employee Benefit Plans..................................... 33
ARTICLE VII
Tax Matters
Section 7.1. Standard Tax Returns....................................... 34
Section 7.2. APCOA Tax Returns.......................................... 36
Section 7.3. Definitions................................................ 38
Section 7.4. Section 338(h)(10)......................................... 38
Section 7.5. Section 754 Election....................................... 39
Section 7.6. Survival................................................... 39
ARTICLE VIII
Conditions of APCOA's Obligation to Close
Section 8.1. Representations, Warranties and Covenants of
Standard Owners.......................................... 39
Section 8.2. Filings; Consents; Waiting Periods......................... 39
Section 8.3. No Injunction.............................................. 39
Section 8.4. Other Agreements........................................... 39
Section 8.5. Financing.................................................. 40
-v-
7
Page
Number
------
ARTICLE IX
Conditions to Standard Owners' Obligation to Close
Section 9.1. Representations, Warranties and Covenants of
APCOA.................................................... 40
Section 9.2. Filings; Consents; Waiting Periods......................... 40
Section 9.3. No Injunction.............................................. 40
Section 9.4. Other Agreements........................................... 40
ARTICLE X
Escrow
Section 10.1 Escrowed Amount............................................ 41
Section 10.2 Designee................................................... 41
ARTICLE XI
Survival; Indemnification
Section 11.1. Survival of Standard Owners' Representations............... 41
Section 11.2. Indemnification by Standard Owners......................... 42
Section 11.3. Survival of APCOA's Representations........................ 43
Section 11.4. Indemnification by APCOA................................... 43
Section 11.5. Conditions of Indemnification.............................. 44
Section 11.6. Indemnification Sole Remedy................................ 45
ARTICLE XII
Termination
Section 12.1. Termination................................................ 45
Section 12.2. Procedure and Effect of Termination........................ 46
ARTICLE XIII
Miscellaneous
Section 13.1. Counterparts............................................... 47
Section 13.2. Governing Law; Jurisdiction and Forum...................... 47
Section 13.3. Entire Agreement; Third-Party Beneficiary.................. 48
Section 13.4. Expenses................................................... 48
Section 13.5. Notices.................................................... 48
Section 13.6. Successors and Assigns..................................... 50
Section 13.7. Headings; Definitions...................................... 50
-vi-
8
Page
Number
------
Section 13.8. Amendments and Waivers..................................... 50
Section 13.9. Interpretation; Absence of Presumption..................... 50
Section 13.10. Severability............................................. 51
-vii-
9
SCHEDULES
Schedule 1.53 Excluded Assets
Schedule 2.2 Allocation of Consideration
Schedule 3.1(b) Standard Owners Violations
Schedule 3.2 Standard Capitalization
Schedule 3.3(a) Standard Financial Statements
Schedule 3.3(d) Standard Transactions with Affiliates of Standard Owners
Schedule 3.4 Standard Undisclosed Liabilities
Schedule 3.5(a) Standard Properties
Schedule 3.5(b) Standard Improvements
Schedule 3.6 Standard Personal Property
Schedule 3.7 Standard Conduct of Business Since October 31, 1997
Schedule 3.8 Standard Litigation; Orders
Schedule 3.9 Standard Intellectual Property
Schedule 3.10(a) Standard Government Licenses, etc.
Schedule 3.10(b) Standard Consents, etc.
Schedule 3.11 Standard Labor Matters
Schedule 3.12 Standard Compliance with Laws
Schedule 3.13 Standard Insurance
Schedule 3.14 Standard Contracts
Schedule 3.15 Standard Management Contracts
Schedule 3.17 Standard Hazardous Materials
Schedule 4.1(b) APCOA Owners Violations
Schedule 4.2 APCOA Capitalization
Schedule 4.3(a) APCOA Financial Statements
-viii-
10
Schedule 4.3(d) APCOA Transactions with Affiliates
Schedule 4.4 APCOA Undisclosed Liabilities
Schedule 4.5(a) APCOA Properties
Schedule 4.5(b) APCOA Improvements
Schedule 4.6 APCOA Personal Property
Schedule 4.7 APCOA Conduct of Business Since September 30, 1997
Schedule 4.8 APCOA Litigation; Orders
Schedule 4.9 APCOA Intellectual Property
Schedule 4.10(a) APCOA Government Licenses, etc.
Schedule 4.10(b) APCOA Consents, etc.
Schedule 4.11 APCOA Labor Matters
Schedule 4.12 APCOA Compliance with Laws
Schedule 4.13 APCOA Insurance
Schedule 4.14 APCOA Contracts
Schedule 4.15 APCOA Management Contracts
Schedule 4.17 APCOA Hazardous Materials
Schedule 5.1(a) Amended and Restated Due Diligence Agreement
Schedule 5.4(a) Standard Conduct of Business
Schedule 5.4(b) APCOA Conduct of Business
Schedule 6.1(a) Employee Benefit Plans
Schedule 6.1(f) Multiemployer Plans
Schedule 7.1(c) Standard Affiliated Groups
Schedule 7.1(d) Standard Tax Liens, Assertions and Unresolved Disputes
Schedule 7.2(c) APCOA Tax Liens, Assertions and Unresolved Disputes
Schedule 7.4 Allocation Schedule
-ix-
11
Schedule 11.2(a) Percentages for Standard Owners Several Liability
Schedule 13.9S Persons Whose Actual Knowledge Constitutes Knowledge of
Standard Owners and the Standard Companies
Schedule 13.9A Persons Whose Actual Knowledge Constitutes Knowledge of
APCOA
-x-
12
EXHIBITS
Exhibit A Form of Stockholders Agreement
Exhibit B Form of Escrow Agreement
Exhibit C Form of Employment Agreement
Exhibit D Form of Consulting Agreement
-xi-
13
This COMBINATION AGREEMENT (this "Agreement"), dated as of January
15, 1998, is by and among Xxxxx X. Xxxxxxxxx, Xxxxxxx Xxxxxxxxx, Xxxxxx X.
Xxxxxxxxx, Xxxxxx Partners, L.P., a Delaware limited partnership, SP Parking
Associates, an Illinois general partnership, and SP Associates, an Illinois
general partnership (collectively, "Standard Owners"), and APCOA, Inc., a
Delaware corporation ("APCOA" and, together with Standard Owners, the
"Parties").
WHEREAS, Standard Owners are engaged through the Standard Companies
in the operation of various parking businesses (excluding the business related
to the Excluded Assets, the "Standard Business"), the operations of which are
reflected in the Historical Standard Financial Statements; and
WHEREAS, Standard Owners wish to sell, convey and transfer to APCOA,
and APCOA wishes to purchase, acquire and receive from Standard Owners, the
Standard Interests, upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound hereby, the Parties
hereby agree as follows:
ARTICLE I
Certain Definitions
As used in this Agreement, the following terms shall have the
following respective meanings:
Section 1.1. "Accounting Firm" shall mean KPMG Peat Marwick
LLP, or if such firm is unable or unwilling to undertake the responsibilities
required of the Accounting Firm hereunder, or has any material relationship with
any Party, such other nationally recognized independent public accounting firm
as shall be agreed upon by the Parties in writing.
Section 1.2. "Action" shall mean any actual or threatened
action, suit, arbitration, inquiry, proceeding or investigation.
Section 1.3. "Affiliate" (and, with a correlative meaning,
"Affiliated") shall mean, with respect to any person, any other person that
directly, or through one or more intermediaries, controls or is controlled by or
is under common control with such person, and, if such a person is an
individual, any member of the immediate family (including parents, spouse and
children) of such individual and any trust whose principal beneficiary is such
individual or one or more members of such immediate family and any person who is
controlled by any such member or trust. As used in this definition, "control"
(including, with correlative meanings, "controlled by" and "under common control
with") shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise).
14
Section 1.4. "Agreement" shall have the meaning set forth in the
first paragraph hereof.
Section 1.5. "AMG" shall have the meaning set forth in Section 2.4.
Section 1.6. "Antitrust Laws" shall mean and include the Xxxxxxx
Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade
Commission Act, as amended, and all other federal, state, foreign and
multinational (including European Community) statutes, rules, regulations,
orders, decrees, administrative and judicial doctrines, and other laws that are
designed or intended to prohibit, restrict or regulate actions having the
purpose or effect of monopolization or restraint of trade.
Section 1.7. "APCOA" shall have the meaning set forth in the first
paragraph hereof.
Section 1.8. "APCOA Affiliated Group" shall have the meaning set
forth in Section 7.2(a).
Section 1.9. "APCOA Balance Sheet" shall have the meaning set forth
in Section 4.3(b).
Section 1.10. "APCOA Business Condition" shall mean the assets,
properties, operations, business, prospects or financial condition of APCOA's
business taken as a whole.
Section 1.11. "APCOA Common Stock" shall have the meaning set forth
in Section 4.2.
Section 1.12. "APCOA Damages" shall have the meaning set forth in
Section 11.2(a).
Section 1.13. "APCOA Financial Statements" shall have the meaning
set forth in Section 4.3(a).
Section 1.14. "APCOA Income Statement" shall have the meaning set
forth in Section 4.3(b).
Section 1.15. "APCOA Indemnitees" shall have the meaning set forth
in Section 11.2(a).
Section 1.16. "APCOA Leased Real Property" shall have the meaning
set forth in Section 4.5(a).
Section 1.17. "APCOA Leases" shall have the meaning set forth in
Section 4.5(a).
Section 1.18. "APCOA Licenses" shall have the meaning set forth in
Section 4.10(a).
-2-
15
Section 1.19. "APCOA Preferred Stock" shall have the meaning set
forth in Section 4.2.
Section 1.20. "APCOA Statement of Cash Flows" shall have the meaning
set forth in Section 4.3(b).
Section 1.21. "APCOA's Warranty Period" shall have the meaning set
forth in Section 11.3.
Section 1.22. Audited 1997 APCOA Financial Statements" shall have
the meaning set forth in Section 5.6(b).
Section 1.23. "Audited 1997 Standard Financial Statements" shall
have the meaning set forth in Section 5.6(a).
Section 1.24. "Audited Standard Financial Statements" shall have the
meaning set forth in Section 5.6(a).
Section 1.25. "Basket" shall have the meaning set forth in Section
11.2(b).
Section 1.26. "Century" shall mean Century Parking Inc. and its
affiliated entities.
Section 1.27. "Claims" shall have the meaning set forth in Section
11.5.
Section 1.28. "Closing" (and, with a correlative meaning, "Close")
shall mean the consummation of the Combination.
Section 1.29. "Closing Date" shall mean the date which is three days
from the date on which the conditions set forth in Articles VIII and IX shall be
satisfied or duly waived, or, if the Parties agree on a different date, the date
upon which they have mutually agreed.
Section 1.30. "Code" shall mean the Internal Revenue Code of 1986,
as amended, and any successor thereto.
Section 1.31. "Combination" shall mean the consummation of the
transactions described in Section 2.1.
Section 1.32. "Company Employee Benefit Plans" shall have the
meaning set forth in Section 6.1(a).
Section 1.33. "Consulting Agreement" shall mean the Consulting
Agreement by and between APCOA and Xxxxxx Xxxxxxxxx in the form attached as
Exhibit D to be dated as of the Closing Date.
Section 1.34. "CTC" shall have the meaning set forth in Section
13.2(c).
-3-
16
Section 1.35. "Current Employees" shall have the meaning set forth
in Section 6.1(a).
Section 1.36. "Distribution Amount" shall have the meaning set forth
in Section 2.4(c).
Section 1.37. "Due Diligence Agreement" shall have the meaning set
forth in Section 5.1.
Section 1.38. "Due Diligence Out Termination Date" shall have the
meaning set forth in Section 12.1.
Section 1.39. "Employee Benefit Plans" shall have the meaning set
forth in Section 6.1(a).
Section 1.40. "Employees" shall have the meaning set forth in
Section 6.1(a).
Section 1.41. "Employment Agreement" shall mean the Employment
Agreement by and between APCOA and Xxxxx X. Xxxxxxxxx in the form attached as
Exhibit C to be dated as of the Closing Date.
Section 1.42. "Encumbrances" shall mean mortgages, liens,
encumbrances, security interests, covenants, conditions, restrictions,
rights-of-way, easements, encroachments, options, rights of first offer, rights
of first refusal, claims and any other matters affecting title.
Section 1.43. "Environmental Law" shall have the meaning set forth
in Section 3.17.
Section 1.44. "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended, and any successor thereto.
Section 1.45. "ERISA Affiliate" shall mean, with respect to any
entity, trade or business, any other entity, trade or business that is a member
of a group described in Section 414(b), (c), (m) or (o) of the Code or Section
4001(b)(1) of ERISA that includes the first entity, trade or business, or that
is a member of the same "controlled group" as the first entity, trade or
business pursuant to Section 4001(a)(14) of ERISA.
Section 1.46. "Escrow Agent" shall have the meaning set forth in
Section 10.1.
Section 1.47. "Escrow Agreement" shall have the meaning set forth in
Section 10.1.
Section 1.48. "Escrowed Amount" shall have the meaning set forth in
Section 10.1.
Section 1.49. "Estimated DA Statement" shall have the meaning set
forth in Section 2.4(a).
-4-
17
Section 1.50. "Estimated Distribution Amount" shall have the meaning
set forth in Section 2.4(a).
Section 1.51. "Excluded Assets" shall mean those assets listed on
Schedule 1.51.
Section 1.52. "Final DA Statement" shall have the meaning set forth
in Section 2.4(c).
Section 1.53. "Former Employees" shall have the meaning set forth in
Section 6.1(a).
Section 1.54. "FY 1997" shall have the meaning set forth in Section
2.4(a).
Section 1.55. "Government Authority" shall mean any government or
state (or any subdivision thereof), whether domestic, foreign or multinational
(including European Community), or any agency, authority, bureau, commission,
department or similar body or instrumentality thereof, or any governmental court
or tribunal.
Section 1.56. "Guarantee" shall have the meaning set forth in
Section 10.1.
Section 1.57. "Historical Standard Balance Sheet" shall have the
meaning set forth in Section 3.3(b).
Section 1.58. "Historical Standard Financial Statements" shall have
the meaning set forth in Section 3.3(a).
Section 1.59. "Historical Standard Income Statement" shall have the
meaning set forth in Section 3.3(b).
Section 1.60. "Historical Standard Statement of Cash Flows" shall
have the meaning set forth in Section 3.3(b).
Section 1.61. "Xxxxxxx" shall mean Xxxxxxx Industries, Inc., a
Delaware corporation.
Section 1.62. "HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
Section 1.63. "Indemnified Party" shall have the meaning set forth
in Section 11.5(a)
Section 1.64. "Indemnifying Party" shall have the meaning set forth
in Section 11.5(a)
Section 1.65. "Initial DA Statement" shall have the meaning set
forth in Section 2.4(c).
-5-
18
Section 1.66. "IPO" shall have the meaning set forth in Section
11.1.
Section 1.67. "IRS" shall mean the United States Internal Revenue
Service.
Section 1.68. "Letter Agreement" shall have the meaning set forth in
Section 5.1(b).
Section 1.69. "Management Contracts" shall mean all contracts,
agreements or other arrangements (including leases) pursuant to which a person
has agreed to manage, operate or lease a parking facility.
Section 1.70. "Multiemployer Plan" shall have the meaning set forth
in Section 6.1(e).
Section 1.71. "Notice of Disagreement" shall mean APCOA's written
notice of its disagreement with the Initial DA Statement.
Section 1.72. "Parties" shall have the meaning set forth in the
first paragraph hereof.
Section 1.73. "Pension Plan" shall have the meaning set forth in
Section 6.1(c).
Section 1.74. "Permitted Debt" shall mean, as of the Closing Date,
debt (including obligations in respect of capital leases and earnout
obligations, and including related fees, costs and expenses) incurred or assumed
in connection with any acquisition of Century by the Standard Companies if such
acquisition and debt is approved by APCOA in accordance with the provisions of
Section 5.4, and other debt not in excess of $630,000, provided that all of such
debt is prepayable at any time without penalty or premium), and provided that
such debt will not include any debt incurred to finance any Excluded Assets or
which would not properly be reflected in a Standard Balance Sheet prepared as of
the Closing Date.
Section 1.75. "Permitted Encumbrance" shall mean (i) with respect to
the Standard Business, those Encumbrances listed in Schedule 3.5(a) or 3.6, and,
with respect to APCOA, those Encumbrances listed in Schedule 4.5(a) or 4.6, (ii)
liens for current ad valorem taxes not yet due and payable and (iii) such
Encumbrances not known to the applicable Party as do not in any respect detract
from the value of the property subject thereto (other than in an amount not
material with respect to such property and, together with all other such
Encumbrances, not material to and which would not reasonably be expected to have
a material adverse effect on the business condition of the applicable Party) or
interfere with or impair the present and continued use thereof in the usual and
normal conduct of their business (other than in a manner not material with
respect to such property and, together with all other such Encumbrances, not
material to and which could not reasonably be expected to have a material
adverse effect on the business condition of the applicable Party).
Section 1.76. "person" shall mean any individual, corporation,
partnership, joint venture, trust, unincorporated organization, other form of
business or legal entity or Government Authority.
-6-
19
Section 1.77. "Purchase Price" shall mean (i) the Standard APCOA
Shares plus (ii) $65,000,000.
Section 1.78. "Returns" shall have the meaning set forth in Section
7.3(a).
Section 1.79. "Schedules Date" shall have the meaning set forth in
Section 5.7.
Section 1.80. "Special Management Contracts" shall have the meaning
set forth in Section 3.15.
Section 1.81. "Standard Advisors Fee" shall have the meaning set
forth in Section 3.16.
Section 1.82. "Standard Affiliated Group" shall have the meaning set
forth in Section 7.1(a).
Section 1.83. "Standard APCOA Shares" shall mean 5.009523 shares of
APCOA Common Stock.
Section 1.84. "Standard Business" shall have the meaning set forth
in the second paragraph hereof.
Section 1.85. "Standard Business Condition" shall mean the assets,
properties, operations, business, prospects or financial condition of the
Standard Business taken as a whole.
Section 1.86. "Standard Companies" shall mean all of the Standard
Transferred Companies and their respective Subsidiaries, including Standard
Parking I, L.L.C., a Delaware limited liability company; Standard Parking II,
L.L.C., a Delaware limited liability company; and Standard Parking of Canada,
L.P., an Illinois limited partnership.
Section 1.87. "Standard Interests" shall mean all of the outstanding
capital stock, partnership and other equity interests of the Standard
Transferred Companies.
Section 1.88. "Standard Leased Real Property" shall have the meaning
set forth in Section 3.5(a).
Section 1.89. "Standard Leases" shall have the meaning set forth in
Section 3.5(a).
Section 1.90. "Standard Licenses" shall have the meaning set forth
in Section 3.10(a).
Section 1.91. "Standard Owners" shall have the meaning set forth in
the first paragraph hereof.
Section 1.92. "Standard Owners Damages" shall have the meaning set
forth in Section 11.4(a).
-7-
20
Section 1.93. "Standard Owners Indemnitees" shall have the meaning
set forth in Section 11.4(a).
Section 1.94. "Standard Owners' Warranty Period" shall have the
meaning set forth in Section 11.1.
Section 1.95. "Standard Transferred Companies" shall mean 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; Standard/Wabash Parking Corporation,
an Illinois corporation.
Section 1.96. "Stockholders Agreement" shall mean the Stockholders
Agreement by and among Standard Owners, APCOA, Xxxxxxx, APA Acquisition, Inc.
and AP Holdings, Inc. in the form attached as Exhibit A to be dated as of the
Closing Date.
Section 1.97. "Subsidiary" of any person shall mean any corporation,
partnership, limited liability company or other business entity of which at
least a majority of the outstanding capital stock (or similar interests) having
voting power under ordinary circumstances to elect directors (or similar
governing body members) shall at the time be held, directly or indirectly, by
such person and/or by one or more Subsidiaries of such person.
Section 1.98. "Taxes" shall have the meaning set forth in Section
7.3(b).
Section 1.99. "Taxing Authority" shall have the meaning set forth in
Section 7.3(c).
Section 1.100. "338 Election" shall have the meaning set forth in
Section 7.4.
Section 1.101. "to the knowledge of APCOA" shall have the meaning
set forth in Section 13.9(a).
Section 1.102. "to the knowledge of Standard Owners and the Standard
Companies" shall have the meaning set forth in Section 13.9(a).
Section 1.103. "Withdrawal Liability" shall have the meaning set
forth in Section 6.1(f).
ARTICLE II
Transfer of Standard Interests; Closing
Section 2.1. Combination and Transfer. On the Closing Date, and
subject to the terms and conditions set forth in this Agreement, each Standard
Owner shall sell, convey, assign, transfer and deliver to APCOA, and APCOA shall
purchase and acquire from such Standard Owner, all of such Standard Owner's
right, title and interest in and to the Standard Interests owned by such
Standard Owner, which are listed in Schedule 2.2 and which, together with the
-8-
21
other Standard Interests listed in Schedule 2.2, represent all Standard
Interests, in return for the Purchase Price payable as set forth in Section 2.2.
Section 2.2. Consideration. (a) Subject to the terms and conditions
hereof, at the Closing, APCOA shall convey to Standard Owners (including to the
Escrow Agent as contemplated and required hereby) the Purchase Price, (i) by
delivery of the Standard APCOA Shares, duly issued and registered in the names
and amounts set forth in Schedule 2.2, and (ii) by wire transfer of immediately
available funds of the cash portion of the Purchase Price (in the amounts, by
Standard Owner, set forth in Schedule 2.2) to the account or accounts specified
to APCOA by Standard Owners by written notice delivered to APCOA at least two
business days prior to the Closing (including in each case by delivery of the
Escrowed Amount to the Escrow Agent to be held in accordance with the terms of
the Escrow Agreement).
(b) In addition to the other things required to be done hereunder,
at the Closing, Standard Owners shall deliver or cause to be delivered to APCOA
the following: (i) a certificate, dated the Closing Date and validly executed on
behalf of Standard Owners, to the effect that the condition set forth in Section
8.1 has been satisfied; (ii) a copy of the resolutions of the board of directors
of each Standard Owner (or similar enabling document in the case of entities
other than corporate entities) authorizing the execution, delivery and
performance of this Agreement by such Standard Owner, together with a
certificate of the secretary or assistant secretary of such Standard Owner,
dated as of the Closing Date, that such resolutions were duly adopted and are in
full force and effect; (iii) evidence or copies of any consents, approvals,
orders, qualifications or waivers required pursuant to Section 8.2; and (iv)
certificates or other documents evidencing the Standard Interests, together with
any stock or other powers, endorsements or other documents required for their
sale, conveyance, assignment, transfer and delivery, and such other instruments
of sale, conveyance, assignment, transfer and delivery reasonably requested by
APCOA, as may be necessary or appropriate to confirm or carry out the provisions
of this Agreement.
(c) In addition to the payment of the Purchase Price and the other
things required to be done hereunder, at the Closing, APCOA shall deliver, or
cause to be delivered, to Standard Owners the following: (i) a certificate,
dated the Closing Date and validly executed on behalf of APCOA, to the effect
that the condition set forth in Section 9.1 shall have been satisfied; (ii) a
copy of the resolutions of the board of directors of APCOA (or its executive
committee), or similar enabling document, authorizing the execution, delivery
and performance of this Agreement by APCOA, together with a certificate of the
secretary or assistant secretary of APCOA, dated as of the Closing Date, that
such resolutions were duly adopted and are in full force and effect; (iii)
evidence or copies of any consents, approvals, orders, qualifications or waivers
required pursuant to Section 9.2; (iv) if not previously delivered to Standard
Owners, all other certificates, documents, instruments and writings required
pursuant hereto to be delivered by or on behalf of APCOA at or before the
Closing; and (v) such other instruments as may be reasonably requested by
Standard Owners, as may be necessary or appropriate to confirm or carry out the
provisions of this Agreement.
Section 2.3. Time and Place of Closing. The Closing shall take place
on the Closing Date at 10:00 a.m., New York City time, at the offices of
Wachtell, Lipton, Xxxxx & Xxxx, New York, New York, unless otherwise agreed by
the Parties.
-9-
22
Section 2.4. Closing Distribution Amount. (a) Prior to the Closing
Date, Standard Owners and APCOA shall work together in the preparation of a
statement (the "Estimated DA Statement") setting forth a reasonable estimate of
the following amount (the "Estimated Distribution Amount") as of the Closing
Date and the calculation thereof: such calculation shall be comprised of (i)
$5,283,000 less distributions made on or prior to the Closing Date (whether in
cash, property or otherwise, but excluding the distribution of any Excluded
Assets expressly permitted in accordance with the terms hereof) with respect to
earnings of the Standard Business for the fiscal year ending December 31, 1997
("FY 1997"), plus (ii) $1,200,000 (which Standard Owners represent and warrant
to be a portion of the amount of the original capital contribution by Standard
Owners to the Standard Companies), plus (iii) an amount equal to (x) $5,400,000
divided by 365, multiplied by (y) the number of days from January 1, 1998
through the Closing Date, less distributions (whether in cash, property or
otherwise) made on or prior to the Closing Date with respect to earnings of the
Standard Business during such period, minus (iv) the incentive compensation of
the Standard Companies accrued and not received by the Standard Companies for FY
1997, minus (v) the retroactive payments in respect of policies of insurance
maintained by the Standard Companies accrued for FY 1997 based on experience
history for the Standard Companies but not yet received by the Standard
Companies or received, but as to which binding written confirmations of finality
from the applicable insurance carrier or broker has not been obtained, provided
that the numbers used in such calculation shall be derived from financial
records prepared in accordance with generally accepted accounting principles
consistently applied (and consistent with the Audited 1997 Standard Financial
Statements (to the extent available at the relevant time)) and such calculation
shall be consistent with this Agreement and with past practices, but excluding,
for purposes of such calculation, the Standard Advisors Fees.
(b) At the Closing, APCOA shall convey the Estimated Distribution
Amount, to the extent not already distributed in accordance with the provisions
of Section 5.4(c)(i), to Standard Owners in the amounts specified in the
Estimated DA Statement.
(c) On or prior to July 1, 1998, Standard Owners shall deliver to
APCOA a revision of the Estimated DA Statement reflecting actual results for FY
1997 (the "Initial DA Statement"), which statement shall be accompanied by a
report thereon of Xxxxxxxxxx, Melvoin and Xxxxxxx LLP ("AMG") to the effect
that, in the opinion of such firm, (x) such statement fairly presents a
calculation of an amount equal to the Estimated Distribution Amount, computed
without deducting the amounts deducted pursuant to clauses (iv) and (v) in the
calculation of the Estimated Distribution Amount to the extent that such amounts
have been actually collected, and, with respect to the amounts described in
clause (v) only, binding written confirmation of finality with respect thereto
obtained from the applicable insurance carrier or broker, as of July 1, 1998
(or, if previously collected but not final, to the extent that binding written
confirmation of finality with respect to such amounts have been obtained from
the applicable insurance carrier or broker) (such amount, the "Distribution
Amount") based upon financial records prepared in accordance with generally
accepted accounting principles consistently applied and (y) that such
calculation is consistent with this Agreement and with past practices. APCOA
shall assist Standard Owners in the preparation of the Initial DA Statement and
shall be provided full access to the properties, books and records relating to
Standard Owners and the Standard Business for such purpose. During the 60 days
immediately following APCOA's receipt of the Initial DA Statement, AP-
-10-
23
COA shall be permitted to review Standard Owners' (and AMG's) working papers
relating to the Initial DA Statement. The Initial DA Statement shall become
final and binding upon the Parties (and shall thereupon become the "Final DA
Statement") on the 60th day following receipt thereof by APCOA unless APCOA
shall provide a Notice of Disagreement to Standard Owners prior to such date.
Any Notice of Disagreement shall specify in reasonable detail the nature of any
disagreement so asserted. If a timely Notice of Disagreement is received by
Standard Owners, then the Initial DA Statement shall become final and binding
upon the Parties (and shall thereupon become the "Final DA Statement") on the
earlier of (x) the date on which the Parties resolve in writing any differences
they may have with respect to any matter specified in the Notice of
Disagreement, and agree upon a Final DA Statement, or (y) the date on which the
Accounting Firm finally resolves in writing any matters with respect to the
Initial DA Statement that are in dispute by providing the Parties with a Final
DA Statement. During the 60 days immediately following the delivery of a Notice
of Disagreement, Standard Owners and APCOA shall seek in good faith to resolve
in writing (and thereby agree on a Final DA Statement) any differences which
they may have with respect to any matter specified in the Notice of
Disagreement. During such period, Standard Owners shall have access to the
working papers of APCOA prepared in connection with APCOA's preparation of the
Notice of Disagreement. At the end of such 60-day period, Standard Owners and
APCOA shall submit to the Accounting Firm for review and resolution any and all
matters which remain in dispute and which were included in the Notice of
Disagreement, and the Accounting Firm shall make a final determination (which
shall thereupon become the "Final DA Statement"), binding on the Parties, of the
Distribution Amount. The fees of the Accounting Firm incurred pursuant to this
Section shall be borne equally by APCOA and Standard Owners. If the Distribution
Amount reflected on the Final DA Statement exceeds the Estimated Distribution
Amount, APCOA shall, and if the Estimated Distribution Amount exceeds the
Distribution Amount reflected on the Final DA Statement, Standard Owners shall,
within 10 business days after the DA Statement becomes final and binding on the
Parties, make payment of the difference to the other Party by wire transfer in
immediately available funds of the amount of such excess, together with interest
thereon at a rate equal to the rate of interest from time to time announced
publicly by Citibank, N.A. as its base rate, calculated on the basis of the
actual number of days elapsed over 365 from the Closing Date to the date of
payment.
(d) With respect to any FY 1997 retroactive payments on account of
any policies of insurance maintained by the Standard Companies received by the
Standard Companies prior to July 1, 1998, but as to which binding written
confirmations of finality from the applicable insurance carrier or broker were
not obtained prior to July 1, 1998, and which have not previously or otherwise
been distributed to the Standard Owners, such amounts shall be distributed by
the Standard Companies to the Standard Owners after July 1, 1998, either (i) at
such time as written confirmations of finality from the applicable insurance
carrier or broker are obtained with respect thereto, or (ii) at such time as the
insurance carrier's legal right to file a claim to recover any portion thereof
has expired.
-11-
24
ARTICLE III
Representations and Warranties of Standard Owners
Each Standard Owner hereby represents and warrants to APCOA as to
itself (but not as to any other Standard Owner) and as to each Standard Company
as follows:
Section 3.1. Incorporation; Authorization; Etc. (a) (i) Such
Standard Owner (other than any natural person) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization. Such Standard Owner (other than any natural person) (A) has all
requisite corporate or comparable power to own its properties and assets and to
carry on its business as it is now being conducted and (B) is in good standing
and is duly qualified to transact business in each domestic jurisdiction in
which the nature of property owned or leased by it or the conduct of its
business requires it to be so qualified, except where the failure to be in good
standing or to be duly qualified to transact business, would not, individually
or in the aggregate, have a material adverse effect on the Standard Business
Condition or otherwise impair consummation of the Combination. (ii) Each
Standard Company is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization. Each Standard Company (A) has
all requisite corporate or comparable power to own its properties and assets and
to carry on its business as it is now being conducted and (B) is in good
standing and is duly qualified to transact business in each domestic
jurisdiction in which the nature of property owned or leased by it or the
conduct of its business requires it to be so qualified, except where the failure
to be in good standing or to be duly qualified to transact business, would not,
individually or in the aggregate, have a material adverse effect on the Standard
Business Condition or otherwise impair consummation of the Combination.
(b) Such Standard Owner has full corporate or comparable power to
execute and deliver this Agreement and to perform its obligations hereunder. The
execution and delivery of this Agreement and the performance of such Standard
Owner's (other than a natural person) obligations hereunder have been duly and
validly authorized by all necessary proceedings on the part of such Standard
Owner and no other proceedings or actions on the part of such Standard Owner,
its board of directors (or similar governing body) or stockholders (or other
interest owners) are necessary therefor. Except as set forth in Schedule 3.1(b),
the execution, delivery and performance by such Standard Owner (other than any
natural person) of this Agreement will not (i) violate any provision of such
Standard Owner's certificate of incorporation or by-laws or other organizational
documents, (ii) except for Management Contracts or as disclosed in Schedule
3.1(b), violate any provision of, or be an event that is (or with the passage of
time will result in) a violation of, or result in the acceleration of or entitle
any party to accelerate (whether after the giving of notice or lapse of time or
both) any obligation under, or result in the imposition of any lien upon or the
creation of a security interest in the assets of any Standard Company pursuant
to, any mortgage, lien, lease, agreement, instrument, order, arbitration award,
judgment, injunction or decree to which any Standard Company is a party or by
which any of them is bound, or (iii) except as disclosed in Schedule 3.1(b) or
3.12, violate or conflict with any statute, rule or regulation applicable to
such Standard Owner or any Standard Company or any of its properties or assets
or any other material restriction of any kind or character to which such
Standard Owner or any Standard Company is subject, that, in the case of any of
clauses (ii) and (iii), would, indi-
-12-
25
vidually or in the aggregate, have a material adverse effect on the Standard
Business Condition or impair the consummation of the Combination. This Agreement
has been duly executed and delivered by such Standard Owner, and, assuming the
due execution and delivery hereof by APCOA, constitutes the legal, valid and
binding obligation of such Standard Owner, enforceable against such Standard
Owner in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting
the rights and remedies of creditors generally and to general principles of
equity (regardless of whether in equity or at law). The execution of the
Employment Agreement and the Consulting Agreement by APCOA, and all payments
that may become due thereunder, will, prior to Closing, be approved in a manner
satisfying the requirements of Section 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of
the Code with respect to the change of control of Standard Parking and its
affiliates that will occur as of the Closing Date.
Section 3.2. Capitalization. (a) All of the outstanding shares of
capital stock, partnership interests or other interests of each Standard Company
have been validly authorized and duly issued and are fully paid and
non-assessable. All of the outstanding shares of capital stock, partnership
interests or other interests of each Standard Transferred Company, (i) except as
set forth on Schedule 3.2, are free of preemptive rights and are owned as set
forth in Schedule 2.2 by such Standard Owner free and clear of all security
interests, liens, claims, pledges, options, rights of first refusal, agreements,
limitations on voting rights, charges and other legal or equitable encumbrances
of any nature whatsoever and (ii) are included in the Standard Interests. All of
the outstanding shares of capital stock, partnership interests or other
interests of each Standard Company (other than any Standard Transferred
Company), except as set forth on Schedule 3.2, are free of preemptive rights and
are owned as set forth in Schedule 3.2 by a Standard Transferred Company free
and clear of all security interests, liens, claims, pledges, options, rights of
first refusal, agreements, limitations on voting rights, charges and other legal
or equitable encumbrances of any nature whatsoever. Except pursuant to this
Agreement, and except as set forth on Schedule 3.2, there are no options,
warrants, calls, rights or agreements to which such Standard Owner or any
Standard Company is a party or by which any of them is bound obligating any
Standard Company to issue, deliver or sell, or cause to be issued, delivered or
sold, additional shares of capital stock, partnership interests or other equity
interests of any Standard Company, or securities convertible into or
exchangeable for such interests or obligating any Standard Company to grant,
extend or enter into any such option, warrant, call, right or agreement. Except
as set forth on Schedule 3.2, there are no outstanding contractual obligations
of such Standard Owner or any Standard Company (i) restricting the transfer of,
(ii) affecting the voting rights of, (iii) requiring the repurchase, redemption
or disposition of, (iv) requiring the registration for sale of or (v) granting
any preemptive or antidilutive right with respect to any shares of capital
stock, partnership interests or other interests on any Standard Company. All
outstanding shares of capital stock, partnership interests or other interests of
each Subsidiary of any Standard Transferred Company are duly authorized, validly
issued, fully paid, nonassessable and free of preemptive rights and owned by a
Standard Transferred Company or a Standard Company, free and clear of all
security interests, liens, claims, pledges, options, rights of first refusal,
agreements, limitations on voting rights, charges and other legal or equitable
encumbrances of any nature whatsoever. No Standard Company is the record or
beneficial owner of any capital stock of, or
-13-
26
joint venture or other investment or equity interest in, any person other than
(i) another Standard Company and (ii) the Excluded Assets.
(b) The Standard Interests listed on Schedule 2.2 collectively
represent all Standard Interests. Except as set forth on Schedule 3.2, no
Standard Owner or any Affiliate of Xxxxx X. Xxxxxxxxx or any member of his
family is engaged or owns an interest in any parking or parking-related business
other than which is a part of the Standard Business (or the Excluded Assets).
Upon consummation of the Combination at the Closing, as contemplated by this
Agreement, such Standard Owner shall deliver to APCOA good title to the Standard
Interests of such Standard Owner free and clear of all security interests,
liens, claims, pledges, options, rights of first refusal, agreements,
limitations on voting rights, charges and other legal or equitable encumbrances
of any nature whatsoever, other than those created by or through APCOA (if any).
Section 3.3. Financial Statements. (a) Attached as Schedule 3.3(a)
are (i) true and complete copies of the audited balance sheets of the Standard
Business on a consolidated basis as of December 31, 1995 and December 31, 1996
and the audited income statements and statements of cash flows of the Standard
Business on a consolidated basis for the 12-month periods ending December 31,
1994, December 31, 1995 and December 31, 1996, and which in each case (other
than those for the 12-month period ended December 31, 1994) have been audited by
AMG, and are accompanied by an unqualified opinion of AMG, and (ii) true and
complete copies of the unaudited balance sheet of the Standard Business on a
consolidated basis as of October 31, 1997 and the unaudited income statement of
the Standard Business on a consolidated basis for the ten-month period ending
October 31, 1997 (collectively, the "Historical Standard Financial Statements").
In each case herein in which the Standard Business is referred to in the context
of a balance sheet, income statement, statement of cash flows or other financial
statement, such balance sheet, income statement, statement of cash flows or
other financial statement has been prepared without taking into account the
Excluded Assets or any results of operations related to the ownership thereof in
any way (but including results of operations that are not related to the
ownership of the Excluded Assets and that will continue following the
consummation of the Combination such as lease payments or management fees made
to the Standard Companies in respect of operations located on Excluded Assets),
and otherwise reflecting the Standard Business as the same will be conveyed in
the Combination.
(b) Each balance sheet included in the Historical Standard Financial
Statements may be hereinafter referred to as a "Historical Standard Balance
Sheet," and each income statement included in the Historical Standard Financial
Statements may be hereinafter referred to as a "Historical Standard Income
Statement" and each statement of cash flows included in the Historical Standard
Financial Statements may be hereinafter referred to as a "Historical Standard
Statement of Cash Flows."
(c) The Historical Standard Financial Statements (including, in each
case, any notes thereto) are accurate and complete in all material respects,
were prepared in accordance with generally accepted accounting principles
applied on a consistent basis during the periods involved (except as may be
indicated therein or in the notes thereto) and, in the case of any Historical
Standard Balance Sheet, fairly present the consolidated financial position of
the Standard Companies or the Standard Business, as the case may be, at the date
thereof or, in the case of any
-14-
27
Historical Standard Income Statement, and Historical Standard Statement of Cash
Flows, fairly present the consolidated results of operations of the Standard
Companies or the Standard Business, as the case may be, for the periods then
ended (subject, in the case of unaudited Historical Standard Financial
Statements, to any other adjustments described therein and normal year-end audit
adjustments), and without taking into account the Excluded Assets or any results
of operations related to the ownership thereof in any way (but including results
of operations that are not related to the ownership of the Excluded Assets and
that will continue following the consummation of the Combination, such as lease
payments or management fees made to the Standard Companies in respect of
operations located on Excluded Assets), and otherwise reflects the Standard
Business as the same will be conveyed in the Combination. No Standard Company
has, since January 1, 1996, made any change in the accounting practices or
policies applied in the preparation of the Historical Standard Financial
Statements. The books and records of the Standard Companies have been, and are
being, maintained in accordance with generally accepted accounting principles
and other applicable legal and accounting requirements.
(d) The Historical Standard Balance Sheets do not include any assets
which were not included in the Standard Business (including the Excluded Assets)
and owned by a Standard Company at the relevant date, and the Historical
Standard Income Statements and Historical Standard Statement of Cash Flows do
not reflect the operations of any entity or business which were not included in
the Standard Business (including the Excluded Assets and the operations related
thereto) and owned by a Standard Company during the relevant period. Schedule
3.3(d) contains a true and complete list of all transactions with Affiliates of
Standard Owners involving the Standard Business for the periods covered by the
Historical Standard Financial Statements. Except as specified in Schedule
3.3(d), all transactions involving Affiliates of Standard Owners have been
accounted for on the Historical Standard Financial Statements.
(e) Each Standard Company conducts business the revenues of which
(excluding revenues derived from bank accounts, securities and similar
investments (such as interests in any Standard Company)) were material to the
Standard Business for FY 1997.
Section 3.4. Undisclosed Liabilities. Except as reflected, reserved
against or otherwise disclosed in the Historical Standard Balance Sheet as of
October 31, 1997, and except as set forth on Schedule 3.4, and except, as of the
Closing Date, for the Permitted Debt, there are no liabilities, debts (including
obligations in respect of capital leases), or obligations of or claims against
any Standard Company or otherwise relating to or arising in connection with the
Standard Business (of any nature whether or not required to be disclosed
pursuant to generally accepted accounting principles) which would individually
or in the aggregate reasonably be expected to have a material adverse effect on
the Standard Business Condition or that would have been required to be reflected
on such balance sheet or in the related notes in accordance with United States
generally accepted accounting principles consistently applied by such Standard
Company.
Section 3.5. Properties. (a) Except for, as of the date hereof,
Excluded Assets, no real property is owned by the Standard Business. Schedule
3.5(a) describes all leases for real property leased by any Standard Company as
lessee or lessor other than Management Contracts (the "Standard Leased Real
Property"), such description including an identification of the lease
-15-
28
agreement therefor and any and all amendments, modifications, side letters and
other agreements relating thereto, the names of the lessor and lessee
thereunder, the title and date thereof, the address of the premises leased
thereunder, and the term, including any extension options, if not apparent from
the lease agreement. All leases with respect to the Standard Leased Real
Property ("Standard Leases") are in effect in accordance with their terms and
create a valid and binding interest in the Standard Leased Real Property in
favor of a Standard Company and, except as set forth in Schedule 3.5(a), all
rents and other amounts (including taxes, insurance and utilities) required to
be paid under such Standard Leases, which have become due, have been paid. To
the actual knowledge of Standard Owners and the Standard Companies, except as
set forth in Schedule 3.5(a), there are no condemnation proceedings, special
assessments, impact fees or similar charges pending or, to the actual knowledge
of Standard Owners and the Standard Companies, threatened against the Standard
Leased Real Property, and Standard Owners have not received or been served with
any notice with respect to any of the foregoing. To the actual knowledge of
Standard Owners and the Standard Companies, the current use by the Standard
Companies of the Standard Leased Real Property complies in all respects with all
applicable zoning laws and building and use restrictions (including all
agreements of the Standard Companies applicable thereto) and condominium
restrictions, except as could not be reasonably expected, individually or in the
aggregate, to have a material adverse effect with respect to the Standard
Business Condition. Standard Owners and the Standard Companies have no actual
knowledge of any proposed change in the zoning or building ordinances affecting
the Standard Leased Real Property.
(b) Except as disclosed in Schedule 3.5(b), no lease of Standard
Leased Real Property requires a Standard Company to make any structural repairs
or maintenance beyond routine maintenance. To the actual knowledge of Standard
Owners and the Standard Companies, except as disclosed in Schedule 3.5(b), all
buildings, structures, improvements and fixtures on, under, over or within
Standard Leased Real Property, and all other aspects of each Standard Leased
Real Property: (i) are in good operating condition and repair (subject to normal
wear and tear) and are structurally sound and free of any material defects; (ii)
are suitable, sufficient and appropriate in all respects for their current uses,
except for such failures as, together with all other such failures, could not
reasonably be expected to have a material adverse effect on the Standard
Business Condition; (iii) comply with all applicable codes and rules of national
and local associations and boards of insurance underwriters; (iv) are within the
boundary lines of their respective Standard Leased Real Property; and (v)
consist of sufficient land, parking areas, sidewalks, driveways and other
improvements to permit the continued use of such facilities in the manner and
for the purposes to which they are presently devoted. There are no outstanding
or, to the actual knowledge of Standard Owners and the Standard Companies,
threatened requirements by any insurance company which has issued an insurance
policy covering any Standard Leased Real Property, or by any board of fire
underwriters or other body exercising similar functions, requiring any material
repairs or work to be done on any Standard Leased Real Property.
Section 3.6. Personal Property. Schedule 3.6 sets forth a list of
all personal property (including fixed assets) owned by a Standard Company with
an initial purchase price or book value in excess of $25,000 and all
Encumbrances thereon. Each Standard Company has good and marketable title to
such property free and clear of Encumbrances, except Permitted Encumbrances and
except for those Encumbrances set forth in Schedule 3.6. All such personal
-16-
29
property is in good operating condition and repair in all material respects,
ordinary wear and tear excepted, and is sufficient for the operation of the
Standard Business consistent with past practice.
Section 3.7. Absence of Certain Changes. Since December 31, 1996,
there has been no material adverse change in, and there has not been any
occurrence which, when taken together with all other such changes or
occurrences, would reasonably be expected to have a material adverse effect on
the Standard Business Condition. Since October 31, 1997, except as set forth on
Schedule 3.7, no Standard Company has taken any action which would have been
prohibited by the provisions of Section 5.4 had this Agreement been in effect at
the time of such action.
Section 3.8. Litigation; Orders. Except for litigation in the
ordinary course of business which is fully covered by insurance without
significant deductibles (none of which is individually or in the aggregate
material) or as disclosed in Schedule 3.8, (i) there are no lawsuits, actions,
administrative or arbitration or other proceedings or Government Authority
investigations pending or, to the actual knowledge of Standard Owners and the
Standard Companies, threatened against any Standard Company or respecting any
Standard Interests by any person or Government Authority and (ii) there are no
judgments or outstanding orders, injunctions, decrees, stipulations or awards
(whether rendered by a court or administrative agency, or by arbitration)
against any Standard Company or any of the properties of any Standard Company or
respecting any Standard Interests, in each of clauses (i) or (ii) that would
reasonably be expected to, individually or in the aggregate, have a material
adverse effect on the Standard Business Condition or that would impair the
consummation of the Combination.
Section 3.9. Intellectual Property. Schedule 3.9 lists all material
patents, trademarks, trade names, service marks, registered copyrights and
pending applications owned by any Standard Company or used in the Standard
Business as of the date hereof. The intellectual property listed on Schedule 3.9
is sufficient for the conduct of the Standard Business as conducted as of the
date hereof and to the actual knowledge of Standard Owners and the Standard
Companies, the Standard Companies have the right to use all such intellectual
property. Except as disclosed in Schedule 3.9, no claims which would,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the Standard Business Condition have been asserted by any
person (i) to the effect that the conduct of business by any Standard Company
infringes on any patents, trademarks, trade names, service marks or registered
copyrights, (ii) against the use by any Standard Company of any trademarks,
trade names, technology, know-how or processes necessary to the business of such
Standard Company or (iii) challenging the ownership, validity or effectiveness
of any of the patents, trademarks, trade names, service marks, registered
copyrights or applications therefor listed on Schedule 3.9.
Section 3.10. Licenses, Approvals, Other Authorizations, Consents,
Reports, Etc. (a) "Standard Licenses" means all material licenses, permits,
franchises and other authorizations of any Government Authority possessed by or
granted to any Standard Company. To the knowledge of Standard Owners and the
Standard Companies, except as disclosed in Schedule 3.10(a), all Standard
Licenses are in full force and effect except for those whose failure to be in
full force and effect would not reasonably be expected to, individually or in
the aggregate, have a
-17-
30
material adverse effect on the Standard Business Condition. Except as disclosed
in Schedule 3.10(a), no proceeding is pending, or, to the actual knowledge of
Standard Owners and the Standard Companies, threatened, seeking the revocation
or limitation of any such Standard License that, individually or in the
aggregate, would reasonably be expected to have a material adverse effect on the
Standard Business Condition.
(b) Schedule 3.10(b) lists all registrations, filings, applications,
notices, consents, approvals, orders, qualifications and waivers required to be
made, filed, given or obtained by any Standard Company with, to or from any
person (other than under Management Contracts), including any Government
Authority, in connection with the consummation of the Combination except for
those the failure to make, file, give or obtain which would not, individually or
in the aggregate, either have a material adverse effect on the Standard Business
Condition or impair the consummation of the Combination.
Section 3.11. Labor Matters. Except as described in Schedule 3.11,
no Standard Company has any written or oral contracts of employment with any
employee in a position of assistant vice president level or above and, except as
described in Schedule 3.11, no such contract provides for any severance
compensation or benefits or similar "change-of-control" provisions that would
give rise to a right or entitlement as a result of the consummation of the
transactions contemplated hereby or because of any change in his position,
authority, title, duties, reporting responsibilities, status, or other similar
matter, resulting from or arising after or in connection with such consummation.
Except as described in Schedule 3.11, no Standard Company has been in the past
five years or is presently a party to any collective bargaining agreement,
subject to a legal duty to bargain with any labor organization on behalf of its
employees or the object of any attempt to organize employees for collective
bargaining or similar purposes or is presently operating under an expired
collective bargaining agreement. Schedule 3.11 contains a complete and accurate
list as of the date hereof of all employees in positions of assistant vice
president level or above of each Standard Company by department and location and
their titles, salaries and all other forms of compensation, dates of hire, and
indicating which of such employees have severance arrangements or are covered by
change-of-control provisions applicable to such employees. No Standard Company
is a party to or subject to any pending or, to the knowledge of Standard Owners
and the Standard Companies, threatened labor dispute (including a strike, work
stoppage, organizing attempt, picketing, boycott or similar activity). To the
knowledge of Standard Owners and the Standard Companies, each Standard Company
has complied in all material respects with all applicable federal, state, and
local laws, ordinances, rules and regulations and requirements relating to the
employment, payment and termination of labor, including the provisions thereof
relative to wages, hours, severance, vacation, collective bargaining, employee
benefits, and employee benefit plans, contributions, unemployment, withholding
taxes and occupational health and safety and equal opportunity and
non-discrimination laws (including the Americans with Disabilities Act). Each
Standard Company has made all deductions required by law to be made for
employees' wages, and salaries and either remitted the same to appropriate
Government Authorities or provided for the same in its accounts and is not
liable for any arrears of wages or any taxes or penalties for failure to comply
with the payment or repayment of any of the foregoing.
-18-
31
Section 3.12. Compliance with Laws. Except as may be indicated in
Schedule 3.12, the conduct of the Standard Business complies with all statutes,
laws, regulations, ordinances, rules, judgments, orders or decrees applicable
thereto, and has so complied at all time periods prior hereto, except for
violations or failures so to comply, if any, that, individually or in the
aggregate, would not reasonably be expected to have a material adverse effect on
the Standard Business Condition.
Section 3.13. Insurance. Schedule 3.13 lists all insurance policies
owned or held by any Standard Company which may cover the business or assets of
any Standard Company. All such policies are in full force and effect and have
not lapsed in coverage, all premiums with respect thereto covering all current
periods have been paid to the extent due, and no written notice of cancellation
or termination has been received with respect to any such policy. All claims
with respect to retroactive insurance premia rebated to any Standard Company for
FY 1996 have been closed and such rebates have become final.
Section 3.14. Material Contracts. Except as disclosed in Schedule
3.5(a), 3.11 or 3.14, no Standard Company is a party to any (i) employment or
consulting agreement having a remaining term of at least one year and requiring
payments of base salary in excess of $100,000 per year or aggregate payments of
base salary in excess of $300,000, (ii) sales representative or agency contract
which is not terminable on 12 months' (or less) notice, (iii) other than
Management Contracts, lease of real or personal property with an annual base
rental obligation of more than $25,000, or a total remaining rental obligation
of more than $100,000, (iv) joint venture or partnership agreement, except as
relates solely to the Excluded Assets, (v) contract or agreement as to the sale,
transfer or other disposition of any assets (other than the Excluded Assets or
de minimis assets), or as to any joint venture or partnership, or as to the
purchase of any assets or securities of any person (other than de minimis assets
or securities), (vi) agreement limiting in any way any Standard Company's
ability to compete with any person in any geographic location or any line of
business, or (vii) other than Management Contracts, other contract, agreement or
arrangement, entered into other than in the ordinary course of business,
requiring future payment or payments in excess of $25,000 per year or otherwise
material to the Standard Business. With respect to all contracts listed on
Schedule 3.14, except as disclosed on Schedule 3.14, such contracts are valid
and binding and no Standard Company is in material breach thereof or material
default thereunder and there does not exist under any provision thereof any
event that, with the giving of notice or the lapse of time or both, would
constitute such a breach or default, except for such failures to be valid and
binding and such breaches, defaults and events as to which requisite waivers or
consents have been or are obtained or which could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
Standard Business Condition. Schedule 3.14 lists all notes, mortgages,
indentures and other obligations and agreements and other instruments for or
relating to any lending or borrowing (including assumed debt) with a remaining
principal of $25,000 or more effected by any Standard Company or to which any
assets of any Standard Company are subject (except with respect to any such
lending or borrowing among Standard Companies).
Section 3.15. Management Contracts. Schedule 3.15 is a list of all
Management Contracts as of the date hereof except for those Management Contracts
for which certain
-19-
32
information regarding such Management Contracts is Special Evaluation Material
as defined in Schedule 5.1(a) ("Special Management Contracts"), together with,
as to each, the location name, the address, the start date (or, if not
available, the approximate start date), the end date, the renewals, the
operating profit for FY 1995 and 1996 and YTD 1997, a description of any change
of control or similar provision contained therein and a notation indicating
whether such Management Contract is written or oral and as to the Special
Management Contracts, the aggregate operating profit for FY 1995 and 1996 and
YTD 1997. With respect to each Management Contract, such Management Contract is
valid and binding and no Standard Company is in material breach thereof or
material default thereunder and there does not exist under any provision thereof
any event that, with the giving of notice or the lapse of time or both, would
constitute such a breach or default, and there is no threatened breach by a
party to a Management Contract and there are no circumstances known to any
Standard Owner or Standard Company which would cause a Management Contract to
become not valid or binding or would cause a breach or default in a Management
Contract except for such failures to be valid and binding and such breaches,
defaults and events as could not, individually or in the aggregate, reasonably
be expected to have a material adverse effect on the Standard Business
Condition. No Standard Company or Standard Owner has knowledge of any plan or
intention of JMB Realty Corporation or Equity Office Properties Trust or any of
their respective Affiliates to alter its relationship with the Standard
Business, except in each case, as could not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the Standard
Business Condition, and except in connection with ordinary-course dispositions
of portfolio properties by such persons.
Section 3.16. Brokers, Finders, Etc. Standard Owners have employed
no broker, finder, consultant or other intermediary in connection with the
Combination or the other matters contemplated hereby who would have a valid
claim for a fee or commission from APCOA or any Standard Company in connection
with the Combination or such transactions, other than Xxxxxxx, Xxxxx & Co., AMG
and Xxxxxx Xxxxxx & Zavis. Up to, but no more than, $2,000,000 of the actual
fees of such firms shall be a permitted liability of the Standard Companies at
the Closing (such amount, the "Standard Advisors Fee").
Section 3.17. Hazardous Materials. Except as set forth in Schedule
3.17, (i) there is no liability resulting from a violation of any applicable
Environmental Law and (ii) there are no claims pending or, to the knowledge of
Standard Owners, threatened, and none of Standard Owners or any Standard Company
has received notice, alleging that a Standard Company is or has been in
violation of any applicable Environmental Law. Schedule 3.17 contains a true and
accurate list of any Standard Leased Real Property or property under a
Management Contract on which any petroleum products (including gasoline and oil
but excluding cleaning solvents not customarily considered petroleum products)
or diesel fuel is presently stored (other than in the fuel tanks of vehicles
which are parked on such Standard Leased Real Property) or sold by any Standard
Company, or, to the actual knowledge of Standard Owners and the Standard
Companies, was stored or sold by any Standard Company. For the purpose of this
Agreement, "Environmental Law" shall mean any law, statute, regulation, court
order, consent decree or settlement agreement which imposes any liability for or
standards of conduct concerning the manufacture, processing, generation,
distribution, use, treatment, storage, disposal, cleanup, transport or handling
of hazardous materials, including the Comprehensive Environmental Response,
Compen-
-20-
33
sation and Liability Act of 1980, as amended, the Resource Conservation and
Recovery Act of 1976, as amended, any other so-called "Superfund" or "Superlien"
law and the Toxic Substances Control Act or any similar federal, state or local
statute.
Section 3.18. Knowledge Regarding Representations. No Standard
Owners or any Standard Company is aware of any inaccuracy or misstatement in, or
breach of, any representation or warranty of APCOA contained herein.
Section 3.19. Acquisition of Shares for Investment. Standard Owners
have such knowledge and experience in financial and business matters that they
are capable of evaluating the merits and risks of their acquisition of the
Standard APCOA Shares. Standard Owners confirm that APCOA has, or prior to the
Diligence Out Termination Date will have, made available to Standard Owners the
opportunity to ask questions of the officers and management employees of APCOA
and to acquire additional information about the business and financial condition
of APCOA. Standard Owners are acquiring the Standard APCOA Shares for investment
and not with a view toward or for sale in connection with any distribution
thereof, or with any present intention of distributing or selling such shares,
in violation of applicable securities laws. Standard Owners understand and agree
that the Standard APCOA Shares may not be sold, transferred, offered for sale,
pledged, hypothecated or otherwise disposed of without registration under the
Securities Act of 1933, as amended, except pursuant to an exemption from such
registration available under such Act, and without compliance with state, local
and foreign securities laws, in each case, to the extent applicable, and in
compliance with the Stockholders Agreement.
ARTICLE IV
Representations and Warranties of APCOA
APCOA hereby represents and warrants to each Standard Owner as
follows:
Section 4.1. Incorporation; Authorization; Etc. (a) APCOA is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization. APCOA (A) has all requisite corporate or
comparable power to own its properties and assets and to carry on its business
as it is now being conducted and (B) is in good standing and is duly qualified
to transact business in each domestic jurisdiction in which the nature of
property owned or leased by it or the conduct of its business requires it to be
so qualified, except where the failure to be in good standing or to be duly
qualified to transact business, would not, individually or in the aggregate,
have a material adverse effect on the APCOA Business Condition or otherwise
impair consummation of the Combination.
(b) APCOA has full corporate or comparable power to execute and
deliver this Agreement and to perform its obligations hereunder. The execution
and delivery of this Agreement and the performance of APCOA's obligations
hereunder have been duly and validly authorized by all necessary proceedings on
the part of APCOA and no other proceedings or actions on the part of APCOA, its
board of directors or stockholders are necessary therefor. Except as set forth
in Schedule 4.1(b), the execution, delivery and performance by APCOA of this
Agreement will not (i) violate any provision of APCOA's certificate of
incorporation or by-laws, (ii) except for Management Contracts or as disclosed
in Schedule 4.1(b), violate any provision
-21-
34
of, or be an event that is (or with the passage of time will result in) a
violation of, or result in the acceleration of or entitle any party to
accelerate (whether after the giving of notice or lapse of time or both) any
obligation under, or result in the imposition of any lien upon or the creation
of a security interest in the assets of APCOA pursuant to, any mortgage, lien,
lease, agreement, instrument, order, arbitration award, judgment, injunction or
decree to which APCOA is a party or by which it is bound, or (iii) except as
disclosed in Schedule 4.1(b) or 4.12, violate or conflict with any statute, rule
or regulation applicable to APCOA or any of its properties or assets or any
other material restriction of any kind or character to which APCOA is subject,
that, in the case of any of clauses (ii) and (iii), would, individually or in
the aggregate, have a material adverse effect on the APCOA Business Condition or
impair the consummation of the Combination. This Agreement has been duly
executed and delivered by APCOA, and, assuming the due execution and delivery
hereof by each Standard Owner, constitutes the legal, valid and binding
obligation of APCOA, enforceable against APCOA in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting the rights and remedies of creditors
generally and to general principles of equity (regardless of whether in equity
or at law. The execution of the Employment Agreement and the Consulting
Agreement by APCOA, and all payments that may become due thereunder, have been
approved in a manner that would satisfy the requirements of Section
280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code with respect to a change of
control of APCOA and its affiliates, assuming such change of control were to
take place immediately after the Closing Date.
Section 4.2.. As of the date hereof, the authorized capital stock of
APCOA consists of 3,000 shares of Common Stock, par value $1.00 per share
("APCOA Common Stock"), and 2,000 shares of Preferred Stock (of any class or
series), par value $.01 per share ("APCOA Preferred Stock"). At the date hereof,
26.3 shares of APCOA Common Stock were issued and outstanding, all of which were
validly issued, fully paid and nonassessable and owned as set forth in Schedule
4.2. As of the date hereof, except for this Agreement and except as set forth on
Schedule 4.1, there are no options, warrants, calls, rights or agreements to
which APCOA or any of its Subsidiaries is a party or by which any of them is
bound obligating APCOA or any of its Subsidiaries to issue, deliver or sell, or
cause to be issued, delivered or sold, additional shares of capital stock,
partnership interests or other equity interests of APCOA or any of its
Subsidiaries, or securities convertible into or exchangeable for such interest
or obligating Xxxxxxx or any of its Subsidiaries to grant, extend or enter into
any such option, warrant, call, right or agreement. As of the date hereof, there
are no outstanding contractual obligations of APCOA or any of its Subsidiaries
(i) restricting the transfer of, (ii) affecting the voting rights of, (iii)
requiring the repurchase, redemption or disposition of, (iv) requiring the
registration for sale of or (v) granting any preemptive or antidilutive right
with respect to, any shares of APCOA Common Stock or any capital stock,
partnership interests or other equity interests of any of its Subsidiaries. The
outstanding shares of capital stock, partnership interests or other equity
interests of each Subsidiary of APCOA are duly authorized, validly issued, fully
paid, nonassessable and free of preemptive rights and owned by APCOA or its
Subsidiary, free and clear of all security interests, liens, claims, pledges,
options, rights of first refusal, agreements, limitations on voting rights,
charges and other encumbrances of any nature whatsoever. Upon issuance in
accordance with the terms of this Agreement, the Standard APCOA Shares shall be
validly issued, fully paid and nonassessable shares of APCOA Common Stock.
-22-
35
Section 4.3. Financial Statements. (a) Attached as Schedule 4.3(a)
are (i) true and complete copies of the audited balance sheets of APCOA on a
consolidated basis as of December 31, 1994, December 31, 1995 and December 31,
1996 and the audited income statements and statements of cash flows of APCOA on
a consolidated basis for the 12-month periods ending December 31, 1994, December
31, 1995 and December 31, 1996 and (ii) true and complete copies of the
unaudited balance sheet of APCOA on a consolidated basis as of September 30,
1997 and the unaudited income statement of APCOA on a consolidated basis for the
nine-month period ending September 30, 1997 (collectively, the "APCOA Financial
Statements").
(b). Each balance sheet included in the APCOA Financial Statements
may be hereinafter referred to as a "APCOA Balance Sheet," and each income
statement included in the APCOA Financial Statements may be hereinafter referred
to as a "APCOA Income Statement" and each statement of cash flows included in
the APCOA Financial Statements may be hereinafter referred to as a "APCOA
Statement of Cash Flows."
(c) The APCOA Financial Statements (including any notes thereto) are
accurate and complete in all material respects, were prepared in accordance with
generally accepted accounting principles applied on a consistent basis during
the periods involved (except as may be indicated therein or in the notes
thereto) and, in the case of any APCOA Balance Sheet, fairly present the
consolidated financial position of APCOA at the date thereof or, in the case of
any APCOA Income Statement and APCOA Statement of Cash Flows, fairly present the
consolidated results of operations of APCOA for the periods then ended (subject,
in the case of unaudited APCOA Financial Statements, to any other adjustments
described therein and normal year-end audit adjustments). Except for the
restatement of depreciation and amortization expense related to the purchase of
APCOA by Xxxxxxx, APCOA has not, since January 1, 1996, made any change in the
accounting practices or policies applied in the preparation of the APCOA
Financial Statements. The books and records of APCOA have been, and are being,
maintained in accordance with generally accepted accounting principles and other
applicable legal and accounting requirements.
Section 4.4. Undisclosed Liabilities. Except as reflected, reserved
against or otherwise disclosed in the APCOA Balance Sheet as of September 30,
1997, and except as set forth on Schedule 4.4, and except, as of the Closing
Date, for obligations incurred in connection with the transactions contemplated
hereby and related expenses, there are no liabilities, debts (including
obligations in respect of capital leases), or obligations of or claims against
APCOA (of any nature whether or not required to be disclosed pursuant to
generally accepted accounting principles) which would individually or in the
aggregate reasonably be expected to have a material adverse effect on the APCOA
Business Condition or that would have been required to be reflected on such
balance sheet or in the related notes in accordance with United States generally
accepted accounting principles consistently applied by APCOA.
Section 4.5. Properties. (a) No real property is owned by APCOA.
Schedule 4.5(a) describes all leases for real property leased by APCOA or its
Subsidiary as lessee or lessor other than Management Contracts (the "APCOA
Leased Real Property"), such description including an identification of the
lease agreement therefor and any and all amendments, modifications, side letters
and other agreements relating thereto, the names of the lessor and lessee
there-
-23-
36
under, the title and date thereof, the address of the premises leased
thereunder, and the term, including any extension options, if not apparent from
the lease agreement. All leases with respect to the APCOA Leased Real Property
("APCOA Leases") are in effect in accordance with their terms and create a valid
and binding interest in the APCOA Leased Real Property in favor of APCOA or its
Subsidiary and, except as set forth in Schedule 4.5(a), all rents and other
amounts (including taxes, insurance and utilities) required to be paid by APCOA
or its Subsidiary under such APCOA Leases, which have become due, have been
paid. To the actual knowledge of APCOA, except as set forth in Schedule 4.5(a),
there are no condemnation proceedings, special assessments, impact fees or
similar charges pending or, to the actual knowledge of APCOA, threatened against
the APCOA Leased Real Property, and APCOA and its Subsidiaries have not received
or been served with any notice with respect to any of the foregoing. To the
actual knowledge of APCOA, the current use by APCOA and its Subsidiaries of the
APCOA Leased Real Property complies in all respects with all applicable zoning
laws and building and use restrictions (including all agreements of APCOA and
its Subsidiaries applicable thereto) and condominium restrictions, except as
could not be reasonably expected, individually or on the aggregate, to have a
material adverse effect with respect to the APCOA Business Condition. APCOA has
no actual knowledge of any proposed change in the zoning or building ordinances
affecting the APCOA Leased Real Property.
(b) Except as disclosed in Schedule 4.5(b), no lease of APCOA Leased
Real Property requires APCOA or its Subsidiary to make any structural repairs or
maintenance beyond routine maintenance. To the actual knowledge of APCOA, except
as disclosed in Schedule 4.5(b), all buildings, structures, improvements and
fixtures on, under, over or within APCOA Leased Real Property, and all other
aspects of each APCOA Leased Real Property: (i) are in good operating condition
and repair (subject to normal wear and tear) and are structurally sound and free
of any material defects; (ii) are suitable, sufficient and appropriate in all
respects for their current uses, except for such failures as, together with all
other such failures, could not reasonably be expected to have a material adverse
effect on the APCOA Business Condition; (iii) comply with all applicable codes
and rules of national and local associations and boards of insurance
underwriters; (iv) are within the boundary lines of their respective APCOA
Leased Real Property; and (v) consist of sufficient land, parking areas,
sidewalks, driveways and other improvements to permit the continued use of such
facilities in the manner and for the purposes to which they are presently
devoted. There are no outstanding or, to the actual knowledge of APCOA,
threatened requirements by any insurance company which has issued an insurance
policy covering any APCOA Leased Real Property, or by any board of fire
underwriters or other body exercising similar functions, requiring any material
repairs or work to be done on any APCOA Leased Real Property.
Section 4.6. Personal Property. Schedule 4.6 sets forth a list of
all personal property (including fixed assets) owned by APCOA with an initial
purchase price or book value in excess of $25,000 and all Encumbrances thereon.
APCOA has good and marketable title to such property free and clear of
Encumbrances, except Permitted Encumbrances and except for those Encumbrances
set forth in Schedule 4.6. All such personal property is in good operating
condition and repair in all material respects, ordinary wear and tear excepted,
and is sufficient for the operation of APCOA's business consistent with past
practice.
-24-
37
Section 4.7. Absence of Certain Changes. Since December 31, 1996,
there has been no material adverse change in, and there has not been any
occurrence which, when taken together with all other such changes or
occurrences, would reasonably be expected to have a material adverse effect on
the APCOA Business Condition. Since September 30, 1997, except as set forth on
Schedule 4.7, APCOA has not taken any action which would have been prohibited by
the provisions of Section 5.4 had this Agreement been in effect at the time of
such action.
Section 4.8. Litigation; Orders. Except for litigation in the
ordinary course of business covered by customary insurance reserves which would
not, individually or in the aggregate, have a material adverse effect on the
APCOA Business Condition and except as disclosed in Schedule 4.8, (i) there are
no lawsuits, actions, administrative or arbitration or other proceedings or
Government Authority investigations pending or, to the actual knowledge of
APCOA, threatened against APCOA by any person or Government Authority and (ii)
there are no judgments or outstanding orders, injunctions, decrees, stipulations
or awards (whether rendered by a court or administrative agency, or by
arbitration) against APCOA or any of the properties of APCOA, in each of clauses
(i) or (ii) that would reasonably be expected to, individually or in the
aggregate, have a material adverse effect on the APCOA Business Condition or
that would impair the consummation of the Combination.
Section 4.9. Intellectual Property. Schedule 4.9 lists all material
patents, trademarks, trade names, service marks, registered copyrights and
pending applications owned by APCOA or used by APCOA as of the date hereof. The
intellectual property listed on Schedule 4.9 is sufficient for the conduct of
APCOA's business as conducted as of the date hereof and to the actual knowledge
of APCOA, APCOA have the right to use all such intellectual property. Except as
disclosed in Schedule 4.9, no claims which would, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the APCOA
Business Condition have been asserted by any person (i) to the effect that the
conduct of business by APCOA infringes on any patents, trademarks, trade names,
service marks or registered copyrights, (ii) against the use by APCOA of any
trademarks, trade names, technology, know-how or processes necessary to the
business of APCOA or (iii) challenging the ownership, validity or effectiveness
of any of the patents, trademarks, trade names, service marks, registered
copyrights or applications therefor listed on Schedule 4.9.
Section 4.10. Licenses, Approvals, Other Authorizations, Consents,
Reports, Etc. (a) "APCOA Licenses" means all material licenses, permits,
franchises and other authorizations of any Government Authority possessed by or
granted to APCOA. To the knowledge of APCOA, except as disclosed in Schedule
4.10(a), all APCOA Licenses are in full force and effect except for those whose
failure to be in full force and effect would not reasonably be expected to,
individually or in the aggregate, have a material adverse effect on the APCOA
Business Condition. Except as disclosed in Schedule 4.10(a), no proceeding is
pending, or, to the actual knowledge of APCOA, threatened, seeking the
revocation or limitation of any such APCOA License that, individually or in the
aggregate, would reasonably be expected to have a material adverse effect on the
APCOA Business Condition.
(b) Schedule 4.10(b) lists all registrations, filings, applications,
notices, consents, approvals, orders, qualifications and waivers required to be
made, filed, given or obtained
-25-
38
by APCOA with, to or from any person (other than under Management Contracts),
including any Government Authority, in connection with the consummation of the
Combination except for those the failure to make, file, give or obtain which
would not, individually or in the aggregate, either have a material adverse
effect on the APCOA Business Condition or impair the consummation of the
Combination.
Section 4.11. Labor Matters. Except as described in Schedule 4.11,
APCOA has no written or oral contracts of employment with any employee in a
position of regional manager level or above and, except as described in Schedule
4.11, APCOA has not been in the past five years or is presently a party to any
collective bargaining agreement, subject to a legal duty to bargain with any
labor organization on behalf of its employees or the object of any attempt to
organize employees for collective bargaining or similar purposes or is presently
operating under an expired collective bargaining agreement. Schedule 4.11
contains a complete and accurate list as of the date hereof of all employees in
positions of regional manager level or above of APCOA by department and location
and their titles, salaries and all other forms of compensation, dates of hire,
and indicating which of such employees have severance arrangements or are
covered by change-of-control provisions applicable to such employees. APCOA is
not a party to or subject to any pending or, to the knowledge of APCOA,
threatened labor dispute (including a strike, work stoppage, organizing attempt,
picketing, boycott or similar activity). To the knowledge of APCOA, APCOA has
complied in all material respects with all applicable federal, state, and local
laws, ordinances, rules and regulations and requirements relating to the
employment, payment and termination of labor, including the provisions thereof
relative to wages, hours, severance, vacation, collective bargaining, employee
benefits, and employee benefit plans, contributions, unemployment, withholding
taxes and occupational health and safety and equal opportunity and
non-discrimination laws (including the Americans with Disabilities Act). APCOA
has made all deductions required by law to be made for employees' wages, and
salaries and either remitted the same to appropriate Government Authorities or
provided for the same in its accounts and is not liable for any arrears of wages
or any taxes or penalties for failure to comply with the payment or repayment of
any of the foregoing.
Section 4.12. Compliance with Laws. Except as may be indicated in
Schedule 4.12, the conduct of APCOA's business complies with all statutes, laws,
regulations, ordinances, rules, judgments, orders or decrees applicable thereto,
and has so complied at all time periods prior hereto, except for violations or
failures so to comply, if any, that, individually or in the aggregate, would not
reasonably be expected to have a material adverse effect on the APCOA Business
Condition.
Section 4.13. Insurance. Schedule 4.13 lists all insurance policies
owned or held by APCOA which may cover the business or assets of APCOA. All such
policies are in full force and effect and have not lapsed in coverage, all
premiums with respect thereto covering all current periods have been paid to the
extent due, and no written notice of cancellation or termination has been
received with respect to any such policy.
Section 4.14. Material Contracts. Except as disclosed in Schedule
4.5(a), 4.11 or 4.14, APCOA is not a party to any (i) employment or consulting
agreement having a remaining term of at least one year and requiring payments of
base salary in excess of $100,000 per year
-26-
39
or aggregate payments of base salary in excess of $300,000, (ii) sales
representative or agency contract which is not terminable on 12 months' (or
less) notice, (iii) other than Management Contracts, lease of real or personal
property with an annual base rental obligation of more than $25,000, or a total
remaining rental obligation of more than $100,000, (iv) joint venture or
partnership agreement, (v) contract or agreement as to the sale, transfer or
other disposition of any assets (other than de minimis assets), or as to any
joint venture or partnership, or as to the purchase of any assets or securities
of any person (other than de minimis assets or securities), (vi) agreement
limiting in any way APCOA's ability to compete with any person in any geographic
location or any line of business, or (vii) other than Management Contracts,
other contract, agreement or arrangement, entered into other than in the
ordinary course of business, requiring future payment or payments in excess of
$25,000 per year or otherwise material to the APCOA's business. With respect to
all contracts listed on Schedule 4.14, except as disclosed on Schedule 4.14,
such contracts are valid and binding and APCOA is not in material breach thereof
or material default thereunder and there does not exist under any provision
thereof any event that, with the giving of notice or the lapse of time or both,
would constitute such a breach or default, except for such failures to be valid
and binding and such breaches, defaults and events as to which requisite waivers
or consents have been or are obtained or which could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the APCOA
Business Condition. Schedule 4.14 lists all notes, mortgages, indentures and
other obligations and agreements and other instruments for or relating to any
lending or borrowing (including assumed debt) with a remaining principal of
$25,000 or more effected by APCOA or to which any assets of APCOA are subject
(except with respect to any such lending or borrowing on an inter-company
basis).
Section 4.15. Management Contracts. Schedule 4.15 is a list of all
Management Contracts as of the date hereof except for those Management Contracts
for which certain information regarding such Management Contracts is Special
Evaluation Material as defined in Schedule 5.1(a) ("Special Management
Contracts"), together with, as to each, the location name, the address, the
start date (or, if not available, the approximate start date), the end date, the
renewals, the operating profit for FY 1995 and 1996 and YTD 1997, a description
of any change of control or similar provision contained therein and a notation
indicating whether such Management Contract is written or oral and as to the
APCOA Special Management Contracts, the aggregate operating profit for FY 1995
and 1996 and YTD 1997. With respect to each Management Contract, such Management
Contract is valid and binding and APCOA is not in material breach thereof or
material default thereunder and there does not exist under any provision thereof
any event that, with the giving of notice or the lapse of time or both, would
constitute such a breach or default, and there is no threatened breach by a
party to a Management Contract and there are no circumstances known to APCOA
which would cause a Management Contract to become not valid or binding or would
cause a breach or default in a Management Contract except for such failures to
be valid and binding and such breaches, defaults and events as could not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the APCOA Business Condition.
Section 4.16. Brokers, Finders, Etc. APCOA has not employed any
broker, finder, consultant or other intermediary in connection with the
Combination or the other matters
-27-
40
contemplated hereby who would have a valid claim for a fee or commission from
any Standard Owner in connection with the Combination or such transactions.
Section 4.17. Hazardous Materials. Except as set forth in Schedule
4.17, (i) there is no liability resulting from a violation of any applicable
Environmental Law and (ii) there are no claims pending or, to the knowledge of
APCOA, threatened, and APCOA has not received any notice, alleging that APCOA is
or has been in violation of any applicable Environmental Law. Schedule 4.17
contains a true and accurate list of any APCOA Leased Real Property or property
under a Management Contract on which any petroleum products (including gasoline
and oil but excluding cleaning solvents not customarily considered petroleum
products) or diesel fuel is presently stored (other than in the fuel tanks of
vehicles which are parked on such APCOA Leased Real Property) or sold by APCOA,
or, to the actual knowledge of APCOA, was stored or sold by APCOA.
Section 4.18. Knowledge Regarding Representations. APCOA is not
aware of any inaccuracy or misstatement in, or breach of, any representation or
warranty of Standard Owners or the Standard Companies contained herein.
ARTICLE V
Covenants of Standard Owners and APCOA
Section 5.1. Investigation of Business; Access to Properties and
Records, Etc. (a) Subject to the Amended and Restated Due Diligence Agreement
dated as of November 24, 1997 (the "Due Diligence Agreement"), after the date
hereof, each Party shall cause to be afforded to the other Party and its
representatives reasonable access to its respective offices, properties, books
and records during normal business hours, in order that the other Party may have
full opportunity to make such investigations as it desires of the affairs of the
Company, provided that such investigation shall only be upon reasonable notice
and shall not unreasonably disrupt personnel and operations. All requests for
access to the offices, properties, books, and records of a Party shall be made
to such representatives of such Party as such Party shall designate, who shall
be solely responsible for coordinating all such requests and all access
permitted hereunder. It is further agreed that neither Party nor its
representatives shall contact any of the employees, customers, suppliers, joint
venture partners or other associates or Affiliates of the other Party in
connection with the transactions contemplated hereby, whether in person or by
telephone, mail or other means of communication, without the specific prior
written authorization of such representatives of the other Party. All notices
and applications to, filings with, and other contacts with any Government
Authority relating to the transactions contemplated hereby shall be made by
either Party only after prior consultation with and approval by the other Party,
which approval shall not be unreasonably withheld. If either Party discovers any
breach of any representation or warranty contained in this Agreement or any
circumstance or condition that upon Closing would constitute such a breach, such
Party covenants that it shall promptly so inform the other Party of such event
in writing.
(b) Any information provided to either Party or its representatives
pursuant to this Agreement or in connection with the transactions contemplated
hereby shall be held by such Party and its representatives in accordance with
and subject to the terms set forth under "Confi-
-28-
41
dentiality" in that certain letter agreement, dated October 30, 1997, by and
among Standard Owners and certain of their Affiliates, APCOA and Xxxxxxx (the
"Letter Agreement"), and in accordance with the Due Diligence Agreement.
Section 5.2. Efforts; Obtaining Consents; Antitrust Laws. (a)
Subject to the terms and conditions herein provided, each Party shall use its
reasonable efforts to take or cause to be taken all actions and to do or cause
to be done all things necessary, proper or advisable to consummate and make
effective as promptly as practicable the transactions contemplated hereby, and
to cooperate with the other in connection with the foregoing, including using
all reasonable efforts (i) to seek all necessary waivers, consents and approvals
from other Parties to material loan agreements, leases and other contracts and
such estoppel certificates from landlords and other third parties as APCOA may
reasonably request (except that Standard Owners and the Standard Companies shall
not be obligated to seek waivers, consents, approvals or estoppel certificates
which respect to any Management Contracts (it being further understood and
agreed, however, that this exception shall not be construed in derogation of any
representation, warranty or condition contained herein)), (ii) to seek all
consents, approvals and authorizations that are required to be obtained under
any federal, state, local or foreign law or regulation, (iii) to lift or rescind
any injunction or restraining order or other order adversely affecting the
ability of the Parties hereto to consummate the transactions contemplated
hereby, (iv) to effect all necessary registrations and filings including filings
under the HSR Act and submissions of information requested by any Government
Authority and (v) to fulfill all conditions set forth in Articles VIII and IX.
Each Party further shall, with respect to any threatened or pending preliminary
or permanent injunction or other order, decree or ruling or statute, rule,
regulation or executive order that would adversely affect the ability of the
Parties hereto to consummate the transactions contemplated hereby, use all
reasonable efforts to prevent the entry, enactment or promulgation thereof, as
the case may be. Without limiting the generality of the foregoing, APCOA shall
use its reasonable efforts to obtain financing having terms no more onerous than
as described in Section 8.5.
(b) Each Party hereto shall promptly inform the other of any
material communication from the Federal Trade Commission, the United States
Department of Justice or any other Government Authority regarding any of the
transactions contemplated hereby. If either Party or any Affiliate thereof
receives a request for additional information or documentary material from any
such Government Authority with respect to the transactions contemplated hereby,
then such Party will endeavor in good faith to make or cause to be made, as soon
as reasonably practicable and after consultation with the other Party, an
appropriate response in compliance with such request.
Section 5.3. Further Assurances. Each Party agrees that, from time
to time, whether before, at or after the Closing Date, it shall, and shall cause
its Affiliates to, execute and deliver such further instruments of conveyance
and transfer and take such other action as may be necessary to carry out the
purposes and intents hereof.
Section 5.4. Conduct of Business. (a) From the date hereof to the
Closing, except as disclosed on Schedule 5.4(a) or otherwise provided for in
this Agreement, and, except as
-29-
42
consented to or approved by APCOA in its reasonable discretion, Standard Owners
agree that, in respect of the Standard Companies and their respective
Subsidiaries:
(i) such parties shall operate their respective businesses in
the ordinary course in all material respects and shall use reasonable efforts to
preserve their respective businesses intact, to keep available the services of
employees and to preserve the goodwill of customers and others having business
relations with such parties;
(ii) such parties shall not (A) create, incur or assume any
long-term or short-term debt (including obligations in respect of capital
leases), except Permitted Debt or inter- and intra-company loans and advances
among Standard Companies, (B) assume, guarantee, endorse or otherwise become
liable or responsible (whether directly, contingently or otherwise) for the
obligations of any person other than such parties, or (C) make any loans,
advances or capital contributions to or investments in any person other than
such parties (except for customary loans or advances to employees);
(iii) unless required by the Employee Benefit Plans or law,
such parties shall not (A) increase in any manner the base compensation of, or
enter into any new bonus or incentive agreement or arrangement with, any of its
directors, officers or other key employees, other than in accordance with past
practice, (B) pay or enter into any agreement to pay any pension, retirement
allowance or similar employee benefit to any such director, officer or key
employee, whether past or present, (C) enter into any new employment, severance,
consulting, or other compensation agreement with any existing director, officer
or key employee or (D) commit to any additional pension, profit-sharing,
deferred compensation, group insurance, severance pay, retirement or other
employee benefit plan, fund or similar arrangement or amend or commit itself to
amend any of such plans, funds or similar arrangements;
(iv) such parties shall not (A) sell, transfer or otherwise
dispose of any assets (other than the Excluded Assets or de minimis assets), (B)
create any new security interest, lien or encumbrance on properties or assets,
(C) enter into any joint venture or partnership, or (D) purchase any assets or
securities of any person (other than de minimis assets or securities), it being
expressly understood and agreed that the proposed acquisition of Century shall
be prohibited hereby unless APCOA shall first have approved such acquisition, in
its sole discretion; and
(v) no such party shall agree to take any action prohibited by
this Section.
(b) From the date hereof to the Closing, except as disclosed on
Schedule 5.4(b) or otherwise provided for in this Agreement, and, except as
consented to or approved by Standard Owners in their reasonable discretion,
APCOA agrees that, in respect of it and its Subsidiaries:
(i) APCOA shall operate its businesses in the ordinary course
in all material respects and shall use reasonable efforts to preserve its
business intact, to keep available the services of employees and to preserve the
goodwill of customers and others having business relations with it;
-30-
43
(ii) APCOA shall not (A) make distributions or pay dividends
on APCOA capital stock except as contemplated or permitted by this Agreement and
except for dividends in kind on outstanding APCOA Preferred Stock or (B) issue
any shares of APCOA Common Stock in a transaction which would require (X)
Standard Owners' consent or (Y) give rise to the exercise of preemptive rights
by Standard Owners pursuant to the Stockholders Agreement were such Stockholders
Agreement in effect at such time unless, in the case of (Y), such preemptive
rights are extended to Standard Owners in connection with the consummation of
the Combination;
(iii) APCOA shall not engage in any transaction with
Affiliates which would be prohibited pursuant to the Stockholders Agreement were
such Stockholders Agreement in effect at such time; and
(iv) APCOA shall not agree to take any action prohibited by
this Section.
(c) Notwithstanding the foregoing, nothing in this Agreement shall
be construed or interpreted to prevent the consummation of the following
transactions, at or prior to the Closing, which transactions shall be expressly
permitted and authorized:
(i) Standard Owners shall be able to cause the distribution by
the Standard Companies to Standard Owners of an amount in cash equal to the
Estimated Distribution Amount, computed and derived from financial records
prepared in accordance with generally accepted accounting principles
consistently applied, and in accordance with past practice, as to the
calculation of such distributions, and based on operations in accordance with
past practice.
(ii) APCOA shall be able to take action such that (1) all
intercompany obligations between APCOA and Xxxxxxx or its Affiliates (all of
which are summarized on Schedule 5.4(c)) shall be canceled or modified as set
forth on such Schedule, (2) upon Closing, the APCOA Preferred Stock shall be
eliminated, and (3) APCOA shall make a net cash payment of $8,000,000 to Xxxxxxx
in respect of the foregoing (it being understood and agreed that, if any of such
$8,000,000 is required not to be paid by APCOA in order to satisfy the condition
set forth in Section 8.5, with respect to the amount which cannot be paid,
Xxxxxxx (or its designated Affiliate) shall be entitled to retain or create a
non-convertible security of APCOA senior to APCOA Common Stock, which security
shall be repayable to Xxxxxxx (or its designated Affiliate) at any time as may
be permitted by applicable financing arrangements and at an interest rate or
dividend rate not to exceed the lesser of (x) 13.0% per annum and (y) a rate per
annum that is 250 basis points in excess of the rate on any subordinated
financing that may be incurred to finance the transactions contemplated hereby).
(iii) The Standard Owners shall, prior to the Closing, cause
all interests in Standard Parking/Marina, L.L.C. held by any Standard Company to
be conveyed to an entity which is not a Standard Company.
Section 5.5. Public Announcements. From the date hereof until the
Due Diligence Out Termination Date, except as required by law, no public
announcements with respect to
-31-
44
the existence of this Agreement, the terms hereof or the transactions
contemplated hereby shall be made without the prior written consent of the
Parties or as required by law. The Parties shall consult with each other before
issuing any press release or other public announcement with respect to the
transactions contemplated hereby and shall not issue any such press release or
public announcement prior to such consultation.
Section 5.6. Financial Statements. (a) Not later than February 6,
1998, Standard Owners shall deliver to APCOA an audited balance sheet of the
Standard Business on a consolidated basis as of December 31, 1997 and an audited
income statement and statement of cash flows of the Standard Business on a
consolidated basis for the 12-month period ending December 31, 1997, in each
case accompanied by an unqualified opinion of AMG (collectively, the "Audited
1997 Standard Financial Statements" and, together with the Historical Standard
Financial Statements, the "Audited Standard Financial Statements"), which in
each case do not take into account the Excluded Assets or any results of
operations related to the ownership thereof in any way (but including results of
operations that are not related to the ownership of the Excluded Assets and that
will continue following the consummation of the Combination, such as lease
payments or management fees made to the Standard Companies in respect of
operations located on Excluded Assets), and otherwise reflecting the Standard
Business as the same will be conveyed in the Combination. From and after
delivery of the Audited 1997 Standard Financial Statements, all representations
and warranties in Section 3.3 as to the Historical Standard Financial Statements
and each Historical Standard Balance Sheet, Historical Standard Income Statement
and Historical Standard Statement of Cash Flows shall thereafter relate also and
in addition to the Audited 1997 Standard Financial Statements and each balance
sheet, income statement and statement of cash flows included therein.
(b) Not later than February 6, 1998, APCOA shall deliver to Standard
Owners an audited balance sheet of APCOA on a consolidated basis as of December
31, 1997 and an audited income statement and statement of cash flows of APCOA on
a consolidated basis for the 12-month period ending December 31, 1997, in each
case accompanied by an unqualified opinion of Ernst & Young LLP (collectively,
the "Audited 1997 APCOA Financial Statements"). From and after delivery of the
Audited 1997 APCOA Financial Statements, all representations and warranties in
Section 4.3 as to the APCOA Financial Statements shall thereafter relate also
and in addition to the Audited 1997 APCOA Financial Statements and each balance
sheet, income statement and statement of cash flows included therein.
(c) Time shall be of the essence with respect to the deliveries of
financial statements contemplated by this Section 5.6.
Section 5.7. Schedules. Each of APCOA and Standard Owners
acknowledge that for business and legal reasons, APCOA and Standard Owners have
not been able to compile the Schedules contemplated hereby prior to the date of
this Agreement. Each of APCOA and Standard Owners covenants that it shall
deliver to the other these Schedules (and make available for review and copying
all documents referred to therein) within seven (7) days after the execution and
delivery of this Agreement (the earlier of (x) such seventh (7th) day and (y)
the actual date of the delivery of the last of all APCOA or Standard Owners
Schedules being the "Schedules Date").
-32-
45
ARTICLE VI
Employee Benefits
Section 6.1. Employee Benefit Plans. (a) Schedule 6.1(a) lists all
material compensation and benefit plans, contracts and arrangements (other than
routine administrative procedures or Government Authority-required programs, but
including all pension, profit sharing, savings and thrift, incentive or deferred
compensation, severance pay and medical, disability and life insurance plans)
for the benefit of any current employees (whether active or on leave of absence)
of any Standard Company ("Current Employees") or former employees of any
Standard Company ("Former Employees" and, together with Current Employees,
"Employees") or their respective dependents (collectively, "Employee Benefit
Plans"). Schedule 6.1(a) also specifies which Employee Benefit Plans are
maintained solely by a Standard Company ("Company Employee Benefit Plans").
(b) All Employee Benefit Plans that are "employee benefit plans," as
defined in Section 3(3) of ERISA, are in compliance in all material respects
with and have been administered in material compliance with all applicable
requirements of law, including the Code and ERISA, and all contributions
required to be made to each such plan under the terms of such Employee Benefit
Plan, ERISA or the Code prior to the Closing Date have been or will be, as the
case may be, timely made.
(c) With respect to any Employee Benefit Plan which is intended to
qualify under Section 401(a) of the Code ("Pension Plan"), a favorable
determination letter as to qualification under Section 401(a) of the Code has
been issued and the related trust has been determined to be exempt from taxation
under Section 501(a) of the Code and, to the knowledge of Standard Owners and
any Standard Company, any amendment made to any Pension Plan subsequent to the
date of such determination letter has not adversely affected the qualified
status of any such plan. Each Standard Company shall have performed all material
obligations required to be performed by them under, and are not in default under
or in violation of, the terms of any of the Employee Benefit Plans in any
material respect. To the knowledge of Standard Owners and any Standard Company,
none of Standard Owners, any Standard Company or any other "disqualified person"
(as defined in Section 4975 of the Code) has engaged in any non-exempt
"prohibited transaction" (as such term is defined in Section 4975 of the Code)
that could subject any Pension Plan (or its related trust), any Standard Company
or any officer, director or employee of any Standard Company to a material tax
or penalty imposed under Section 4975 of the Code.
(d) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will (i) materially
increase any benefits otherwise payable under any Employee Benefit Plan or (ii)
result in the acceleration of the time of payment or vesting of any such
benefits to any material extent.
(e) No Employee Benefit Plan, other than a "multiemployer plan"
within the meaning of Section 4001(a)(3) of ERISA (a "Multiemployer Plan"), is
subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code.
There does not now exist, nor do any circumstances now exist that could result
in, any liability on the part of any Standard Company or any ERISA Affiliate of
a Standard Company (i) under Title IV of ERISA, (ii) under Xxxxxxx
-00-
00
000 xx XXXXX, (xxx) under Sections 412 and 4971 of the Code, or (iv) for failure
to comply with the continuation coverage requirements of section 601 et seq. of
ERISA and section 4980B of the Code, in each case other than liabilities
relating to the Multiemployer Plans listed on Schedule 6.1(f). Without limiting
the generality of the foregoing, no Standard Company and no ERISA Affiliate of a
Standard Company has engaged in any transaction described in Section 4204 of
ERISA or, to the knowledge of Standard Owners and the Standard Companies, any
transaction described in Section 4069 or 4212 of ERISA.
(f) The Employee Benefit Plans listed on Schedule 6.1(f) are the
only Employee Benefit Plans that are Multiemployer Plans to which any Standard
Company or any ERISA Affiliate of a Standard Company contributes, has an
obligation to contribute, or has at any time since January 1, 1991, contributed
or been obligated to contribute. With respect to each such Multiemployer Plan:
(i) neither any Standard Company nor any ERISA Affiliate of a Standard Company
has incurred any liability to a Multiemployer Plan as a result of a complete or
partial withdrawal from such Multiemployer Plan, as those terms are defined in
Part I of Subtitle E of Title IV of ERISA (any such liability, a "Withdrawal
Liability") that has not been satisfied in full; (ii) if any Standard Company or
any ERISA Affiliate of a Standard Company were to experience a withdrawal or
partial withdrawal from such plan, no Withdrawal Liability would be incurred;
and (iii) no Standard Company and no ERISA Affiliate of a Standard Company has
any knowledge that any such plan is in reorganization, has been terminated, or
may reasonably be expected to be in reorganization or to be terminated within
the reasonably foreseeable future.
(g) No Standard Company has any liability for life, health, medical,
disability or other welfare benefits to former employees or beneficiaries or
dependents thereof, except for health continuation coverage as required by
Section 4980B of the Code or Part 6 of Title I of ERISA or conversion coverage
available under a group insurance contract.
ARTICLE VII
Tax Matters
Section 7.1. Standard Tax Returns. (a) All federal, state, local,
foreign and other Returns, relating to any Standard Company or any combined,
consolidated, affiliated or unitary tax group of which any Standard Company is
or has been a member (a "Standard Affiliated Group") and required to be filed
have been or will be timely filed. Such Returns are (or will, when filed, be)
true, correct and complete in all material respects. Except for Taxes the
non-payment of which would not, in the aggregate, be material, the following
Taxes have (or by the Closing Date will have) been duly and timely paid: (i) all
Taxes shown to be due on such Returns, (ii) all deficiencies and assessments of
Taxes of which written notice has been received by any Standard Company or any
Standard Affiliated Group that are payable by any Standard Company or chargeable
as a lien upon any assets of any Standard Company other than deficiencies or
assessments for Taxes that are being contested in good faith by appropriate
proceedings and have been reserved against in accordance with generally accepted
accounting principles and (iii) all other Taxes due and payable by any Standard
Company on or before the Closing Date for which neither filing of Returns nor
written notice of deficiency or assessment is required, of which Standard Owners
are aware, that are or may become payable by any Standard Company or chargeable
as a lien upon any assets of any Standard Company. Accruals and reserves have
been
-34-
47
made on the Historical Standard Balance Sheet as of October 31, 1997 that will
be adequate for the payment of all Taxes due and payable by any Standard Company
for all periods (or portions thereof) ending on or before October 31, 1997. All
Taxes required to be withheld by or on behalf of any Standard Company have been
so withheld, and such withheld Taxes have either been duly and timely paid to
the proper Government Authorities or set aside in accounts for such purpose.
(b) No agreement or other document extending, or having the effect
of extending, the period of assessment or collection of any Taxes for which any
Standard Company may be held liable, and no power of attorney with respect to
any such Taxes, has been executed or filed with the IRS or any other Taxing
Authority.
(c) Except as set forth on Schedule 7.1(c), no Standard Company is
or has been a member of any Standard Affiliated Group for purposes of filing
Returns or paying Taxes at any time.
(d) Standard Owners have made available to APCOA complete and
accurate copies of the Returns filed by each Standard Company or any member of
its Standard Affiliated Group with respect to all federal, state, local, foreign
and other income, profits, franchise, gross receipts and capital Taxes that are
or have been required to be filed for all periods for which the statute of
limitations for assessment or collection of such Taxes has not expired, and have
delivered to APCOA copies of all such Returns relating to income Taxes. No lien
for Taxes exists with respect to any of the assets of any Standard Company.
There are no Taxes for which any Standard Company could be held liable asserted
in writing by any Taxing Authority to be due. No unresolved issue has been
raised in writing by any Government Authority in the course of any audit with
respect to Taxes for which any Standard Company could be held liable. Except as
set forth on Schedule 7.1(d), the audits of such Returns with respect to federal
income Taxes have been completed, or the statute of limitations with respect to
federal income Taxes has expired, for all Tax periods through and including the
year ended December 31, 1993. Except as set forth in Schedule 7.1(d), no Returns
filed by any Standard Company or any member of its Standard Affiliated Group
with respect to federal income Taxes are currently under audit by the IRS.
Except as set forth on Schedule 7.1(d), no other Returns filed by any Standard
Company or any member of its Standard Affiliated Group or Taxes for which any
Standard Company could be held liable are currently under audit by any other
Taxing Authority, and no Taxing Authority has given notice in writing that it
will commence any such audit. Except as set forth on Schedule 7.1(d), no Taxing
Authority is now asserting against any Standard Company any deficiency or claim
for additional Taxes or any adjustment of Taxes, and there is no reasonable
basis for any such assertion of which Standard Owners or any Standard Company is
aware.
(e) No election has been made to have the provisions of Section
341(f) of the Code apply to any Standard Company.
(f) No Standard Company is a party to or bound by any tax sharing or
similar agreement or arrangement.
(g) No assets of any Standard Company are subject to any lease under
Section 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect
prior to the date of en-
-35-
48
actment of the Tax Equity and Fiscal Responsibility Act of 1982. No assets of
any Standard Company are subject to a lease under Section 7701(h) of the Code or
under any predecessor provision.
(h) There are no elections in effect made by or with respect to any
Standard Company pursuant to Section 338 or Section 336(e) of the Code or the
regulations thereunder.
(i) No Standard Company has agreed, or is required, to make any
adjustment under Section 481 of the Code (or any comparable provision of state,
local or foreign law) by reason of a change in accounting methods or otherwise.
(j) Each of Standard Parking, L.P., a Delaware limited partnership,
Standard Parking I, L.L.C., a Delaware limited liability company, Standard
Parking II, L.L.C., a Delaware limited liability company, and Standard Parking
of Canada, L.P., an Illinois limited partnership (and any predecessor of any of
the foregoing) is and at all times has been properly classified for federal,
state and local income tax purposes as a partnership and not as an association
taxable as a corporation.
(k) Each of (i) Standard Parking Corporation, an Illinois
corporation, (ii) Standard Auto Park, Inc., an Illinois corporation, (iii)
Standard Parking Corporation, MW, an Illinois corporation, (iv) Standard Parking
Corporation, IL, an Illinois corporation, and (v) Standard/Wabash Parking
Corporation, an Illinois corporation made a valid election under Subchapter S of
the Code to which all persons who were shareholders on the date of such election
gave their (and if necessary each shareholder's spouse gave his or her) consent
and such elections became effective for each such corporation's tax year
beginning, respectively, January 1, 1985, January 1, 1972, April 12, 1993 (on
which date such corporation was incorporated), April 12, 1993 (on which date
such corporation was incorporated), and January 1, 1987, and each such
corporation is, and has been since such date, an S corporation (as defined in
Section 1361 of the Code).
Section 7.2. APCOA Tax Returns. (a) All federal, state, local,
foreign and other Returns, relating to APCOA or any combined, consolidated,
affiliated or unitary tax group of which APCOA is or has been a member (an
"APCOA Affiliated Group") and required to be filed have been or will be timely
filed. Such Returns are (or will, when filed, be) true, correct and complete in
all material respects. Except for Taxes the non-payment of which would not, in
the aggregate, be material, the following Taxes have (or by the Closing Date
will have) been duly and timely paid: (i) all Taxes shown to be due on such
Returns, (ii) all deficiencies and assessments of Taxes of which written notice
has been received by APCOA or any APCOA Affiliated Group that are payable by
APCOA or chargeable as a lien upon any assets of APCOA other than deficiencies
or assessments for Taxes that are being contested in good faith by appropriate
proceedings and have been reserved against in accordance with generally accepted
accounting principles and (iii) all other Taxes due and payable by APCOA on or
before the Closing Date for which neither filing of Returns nor written notice
of deficiency or assessment is required, of which APCOA is aware, that are or
may become payable by APCOA or chargeable as a lien upon any assets of APCOA.
All Taxes required to be withheld by or on behalf of APCOA have
-36-
49
been so withheld, and such withheld Taxes have either been duly and timely paid
to the proper Government Authorities or set aside in accounts for such purpose.
(b) No agreement or other document extending, or having the effect
of extending, the period of assessment or collection of any Taxes for which
APCOA may be held liable, and no power of attorney with respect to any such
Taxes, has been executed or filed with the IRS or any other Taxing Authority.
(c) APCOA has made available to Standard Owners complete and
accurate copies of the Returns filed by APCOA or any member of the APCOA
Affiliated Group with respect to all federal, state, local, foreign and other
income, profits, franchise, gross receipts and capital Taxes that are or have
been required to be filed for all periods for which the statute of limitations
for assessment or collection of such Taxes has not expired, and has delivered to
Standard Owners copies of all such Returns relating to income Taxes. No lien for
Taxes exists with respect to any of the assets of APCOA. There are no Taxes for
which APCOA could be held liable asserted in writing by any Taxing Authority to
be due. No unresolved issue has been raised in writing by any Government
Authority in the course of any audit with respect to Taxes for which APCOA could
be held liable. Except as set forth on Schedule 7.2(c), the audits of such
Returns with respect to federal income Taxes have been completed, or the statute
of limitations with respect to federal income Taxes has expired, for all Tax
periods through and including the year ended December 31, 1991. Except as set
forth in Schedule 7.2(c), no Returns filed by APCOA or any member of the APCOA
Affiliated Group with respect to federal income Taxes are currently under audit
by the IRS. Except as set forth on Schedule 7.2(c), no other Returns filed by
APCOA or any member of the APCOA Affiliated Group or Taxes for which APCOA could
be held liable are currently under audit by any other Taxing Authority, and no
Taxing Authority has given notice in writing that it will commence any such
audit. Except as set forth on Schedule 7.2(c), no Taxing Authority is now
asserting against APCOA any deficiency or claim for additional Taxes or any
adjustment of Taxes, and there is no reasonable basis for any such assertion of
which APCOA is aware.
(d) No election has been made to have the provisions of Section
341(f) of the Code apply to APCOA.
(e) Except as set forth on Schedule 7.2, APCOA is not a party to or
bound by any tax sharing or similar agreement or arrangement (and the agreements
and arrangements set forth in such Schedule shall be amended prior to the
Closing as reasonably may be agreed by the Parties).
(f) No assets of APCOA are subject to any lease under Section
168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect prior
to the date of enactment of the Tax Equity and Fiscal Responsibility Act of
1982. No assets of APCOA are subject to a lease under Section 7701(h) of the
Code or under any predecessor provision.
(g) There are no elections in effect made by or with respect to
APCOA pursuant to Section 338 or Section 336(e) of the Code or the regulations
thereunder.
-37-
50
(h) APCOA has not agreed, nor is it required, to make any adjustment
under Section 481 of the Code (or any comparable provision of state, local or
foreign law) by reason of a change in accounting methods or otherwise.
(i) APCOA had net operating loss carryforwards for federal income
tax purposes of not less than $21.4 million as of December 31, 1996, which were
available for carryforward to APCOA's 1997 taxable year and to APCOA's future
taxable years within the applicable carryforward period provided by Section
172(b)(1) of the Code. The acquisition by Standard Owners of the Standard APCOA
Shares, taken together with other transactions occurring during the "testing
period" (as defined in Section 382(i) of the Code) of such acquisition of the
Standard APCOA Shares, will not constitute an "ownership change" of APCOA as
defined in Section 382(g) of the Code.
Section 7.3. Definitions. For purposes of this Article, the
following terms shall have the meanings ascribed to them below:
(a) "Returns" (a) XE means returns, declarations, statements,
reports, forms or other documents or information required to be filed with or
supplied to any Taxing Authority.
(b) "Taxes" XE means (i) all taxes (whether federal, state, county,
local or foreign) based upon or measured by income and any other tax whatsoever,
including gross receipts, profits, windfall profits, sales, use, occupation,
value added, ad valorem, transfer, franchise, withholding, payroll, employment,
excise, stamp, premium, capital stock, production, business and occupation,
disability, severance, or real or personal property taxes, fees, assessments or
charges of any kind whatsoever imposed by any Taxing Authority together with any
interest or penalties imposed with respect thereto and (ii) any obligations
under any agreements or arrangements with respect to any Taxes described in
clause (i) above.
(c) "Taxing Authority" XE means any Government Authority having
jurisdiction over the assessment, determination, collection, or other imposition
of Tax.
Section 7.4. Section 338(h)(10). At APCOA's request, Standard Owners
will join with APCOA in making an election (the "338 Election") under Section
338(h)(10) of the Code and/or any similar state law provision in any state or
states as APCOA shall designate, with respect to the acquisition of any Standard
Company taxed as an S corporation designated by APCOA. Any such request shall be
delivered to Standard Owners in writing not later than 20 days prior to the last
date on which the 338 Election can legally be made. If the 338 Election is made
with respect to one or more Standard Companies, the parties will allocate the
"MADSP" as computed under Treasury Regulations Section 1.338(h)(10)-1(f) (or
similar state law provision) among such Standard Companies' assets for Tax
purposes in accordance with the allocation set forth in Schedule 7.4. APCOA and
Standard Owners agree to act in accordance with the allocations set forth in
Schedule 7.4 in any relevant Returns or similar filings. Notwithstanding
anything contained herein to the contrary, Standard Owners shall be responsible
for, and shall indemnify and hold harmless APCOA and each APCOA Indemnitee from,
any and all Taxes (and related APCOA Damages) resulting from the deemed sale of
the Standard Companies' assets in the event the 338 Election is made (including
any Tax imposed upon "net recognized built-in
-38-
51
gain" XE "net recognized built-in gain under Section 1374 of the Code). Standard
Owners shall pay such Taxes, together with any related penalty or interest,
without set-off, deduction or other adjustment, directly to the relevant Taxing
Authority, on or prior to the time such Taxes are due and payable, as estimated
payments or otherwise.
Section 7.5. Section 754 Election. Following the Closing, at APCOA's
request, Standard Owners shall cause to be made an election under Section 754 of
the Code (and/or any similar state law provision in any state or states
designated by APCOA) for the partnership taxable year that includes the Closing
with respect to any Standard Company that is a partnership for federal (or, in
the case of any election under state law, state) income tax purposes and will
not seek to revoke any such election.
Section 7.6. Survival. The provisions of this Article VII shall
survive the Closing until the expiration of all applicable statutes of
limitations.
ARTICLE VIII
Conditions of APCOA's Obligation to Close
APCOA's obligation to consummate the Combination shall be subject to
the satisfaction or waiver by APCOA, on or prior to the Closing Date, of all of
the following conditions:
Section 8.1. Representations, Warranties and Covenants of Standard
Owners. The representations and warranties of Standard Owners contained in this
Agreement, in the aggregate, shall be true and correct in all material respects
on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date except for
representations and warranties that speak as of a specific date or time other
than the Closing Date (which need only be true and correct in all material
respects as of such date or time) and the covenants and agreements of Standard
Owners to be performed on or before the Closing Date in accordance with this
Agreement shall have been duly performed in all material respects.
Section 8.2. Filings; Consents; Waiting Periods. All registrations,
filings, applications, notices, consents, approvals, orders, qualifications and
waivers listed in Schedule 3.10(b) or 4.10(b) and indicated therein as being a
condition to the Closing for APCOA shall have been filed, made or obtained and
all waiting periods applicable under the HSR Act shall have expired or been
terminated.
Section 8.3. No Injunction. At the Closing Date, there shall be no
injunction, restraining order or decree of any nature of any court or Government
Authority of competent jurisdiction that is in effect that restrains or
prohibits the consummation of the Combination.
Section 8.4. Other Agreements. Each of the Stockholders Agreement,
the Employment Agreement, the Consulting Agreement and the Escrow Agreement
shall have been duly executed and delivered by the parties thereto (other than
APCOA, but including the spouse of each party thereto). Each employee of any
Standard Company who would otherwise be entitled to any severance compensation
or benefits or similar "change-of-control" benefits as a result of the
consummation of the transactions contemplated hereby or because of any change in
his
-39-
52
position, authority, title, duties, reporting responsibilities, status, or other
similar matter, resulting from or arising after or in connection with such
consummation shall, to the extent of such entitlement, have waived such
entitlement. Binding written confirmation from the applicable insurance carrier
or broker that all retroactive insurance premia rebated to any Standard Company
for FY 1996 have been closed shall have been provided to APCOA, or the amount of
any retroactive insurance premia received but as to which binding written
confirmation of finality from the applicable insurance carrier or broker has not
been obtained shall have been contributed to the Standard Companies by the
Standard Owners.
Section 8.5. Financing. APCOA shall have received financing adequate
for consummation of the Combination and related transactions, on terms
reasonably satisfactory to APCOA (it being understood and agreed that this
condition shall be deemed to have been satisfied if APCOA shall have received
financing in an aggregate principal amount of $80 million or more with an
interest rate of 13% per annum or less and with a term of seven years or more
and carrying "equity kickers" (if any) in the form of warrants in an aggregate
amount not exceeding 3% of the fully diluted equity of APCOA and otherwise on
customary and reasonable terms).
ARTICLE IX
Conditions to Standard Owners'
Obligation to Close
Standard Owners' obligation to consummate the Combination is subject
to the satisfaction or waiver by Standard Owners, on or prior to the Closing
Date, of all of the following conditions:
Section 9.1. Representations, Warranties and Covenants of APCOA. The
representations and warranties of APCOA contained in this Agreement, in the
aggregate, shall be true and correct in all material respects on and as of the
Closing Date with the same effect as though such representations and warranties
had been made on and as of such date except for representations and warranties
that speak as of a specific date or time other than the Closing Date (which need
only be true and correct in all material respects as of such date or time) and
the covenants and agreements of APCOA to be performed on or before the Closing
Date in accordance with this Agreement shall have been duly performed in all
material respects.
Section 9.2. Filings; Consents; Waiting Periods. All registrations,
filings, applications, notices, consents, approvals, orders, qualifications and
waivers listed in Schedules 3.10(b) or 4.10(b) and indicated therein as being a
condition to the Closing for Standard Owners shall have been filed, made or
obtained and all applicable waiting periods under the HSR Act shall have expired
or been terminated.
Section 9.3. No Injunction. At the Closing Date, there shall be no
injunction, restraining order or decree of any nature of any court or Government
Authority of competent jurisdiction that is in effect that restrains or
prohibits the consummation of the Combination.
Section 9.4. Other Agreements. Each of the Stockholders Agreement,
the Employment Agreement, the Escrow Agreement and the Consulting Agreement
shall have been
-40-
53
duly executed and delivered by the parties thereto (other than any Standard
Owners who are party thereto).
ARTICLE X
Escrow
Section 10.1. Escrowed Amount. Upon the Closing, APCOA shall
deliver, or shall cause to be delivered, directly to the escrow agent under the
Escrow Agreement (the "Escrow Agent"), such amount of the cash portion of the
Purchase Price (collectively with all interest and earnings thereon, the
"Escrowed Amount"), to be held in an escrow account pursuant to the terms set
forth herein and in an escrow agreement, substantially in the form attached as
Exhibit B (the "Escrow Agreement"), which, together with the amount of an
unconditional, personal guarantee from Xxxxx X. Xxxxxxxxx (in form to be agreed)
for an amount of up to $5 million (the "Guarantee"), totals $10,000,000. The
Escrowed Amount and the Guarantee shall be available to satisfy any obligations
of Standard Owners pursuant hereto, including under Section 2.4 or Article XI
(it being understood and agreed, however, that Standard Owners shall promptly
replenish any amount drawn against the Escrowed Amount, and any such amount
shall not reduce the aggregate liability under the Guarantee, in respect of any
obligation other than the indemnification obligations of Article XI (other than
in respect of a breach of the representations and warranties contained in
Sections 3.1(a)(i) and 3.2), so that the full Escrowed Amount and Guarantee
shall be available to satisfy such indemnification obligations). Payments to
APCOA from the Escrowed Amount or under the Guarantee shall be treated as
reductions in the Purchase Price. The Escrowed Amount and payments on the
Guarantee, or portions thereof, shall be paid to APCOA, or, in the case of the
Escrowed Amount, to Standard Owners, from time to time as provided for and in
accordance with Articles X and XI and in the Guarantee and the Escrow Agreement.
Section 10.2. Designee. Standard Owners will, at the Closing, as
contemplated by the Escrow Agreement, designate a committee of representatives
to act on behalf of Standard Owners and their successors under the Escrow
Agreement with the powers and authorities provided therein and is authorized to
act on behalf of all Standard Owners and for all purposes under the Escrow
Agreement, including settling any claims that may arise following the Closing
under the indemnification provisions of Article XI.
ARTICLE XI
Survival; Indemnification
Section 11.1. Survival of Standard Owners' Representations. The
representations, warranties, covenants and agreements made by Standard Owners in
this Agreement or pursuant hereto shall survive the Closing for a period of two
years thereafter (except for those contained in Sections 3.1 and 3.2, which
shall survive forever, and in Sections 3.17, 6.1 and 7.1, which shall survive
until the expiration of all applicable statutes of limitations), provided that,
in the event of an initial public offering ("IPO") of shares of APCOA Common
Stock within two years of the Closing, such survival shall terminate on the
later of (x) the consummation of such IPO and (y) the 15-month anniversary of
the Closing, and provided further that such limitation shall not affect any
claim for indemnification written notice of which was provided to Standard
-41-
54
Owners prior to the expiration of the applicable time limitation (the period of
survival, the "Standard Owners' Warranty Period") and in addition shall survive
and shall be unaffected by (and shall not be deemed waived by) any
investigation, audit, appraisal or inspection at any time made by or on behalf
of APCOA. Any claims for indemnification made by APCOA in accordance with this
Section prior to the expiration of the Standard Owners' Warranty Period shall
survive and shall not be extinguished by the expiration of such period.
Section 11.2. Indemnification by Standard Owners. (a) Subject to the
limitations of Section 11.1 and this Section 11.2, Standard Owners, on a several
basis, as set forth on Schedule 11.2(a), agree to indemnify, defend and hold
harmless APCOA, its officers, directors, employees, agents, advisors,
representatives and Affiliates, including the Standard Companies, and each of
their respective successors and assigns (collectively, "APCOA Indemnitees") from
and against any and all demands, claims, complaints, Actions or causes of
action, suits, proceedings, investigations, arbitrations, assessments, losses,
damages, liabilities, costs and expenses, including interest, penalties and
reasonable attorneys' and accounting fees and disbursements (including those
relating to the enforcement of this indemnity) ("APCOA Damages"), asserted
against, imposed upon or incurred by any APCOA Indemnitee, directly or
indirectly, by reason of, relating to or resulting from (i) any nonfulfillment
of any covenant or agreement on the part of Standard Owners contained herein or
(ii) any breach of representation or warranty on the part of Standard Owners
contained herein or any Schedule or certificate, document or other instrument
delivered in connection herewith, provided that notice of any claim for
indemnification shall be submitted by the relevant APCOA Indemnitee prior to the
expiration of the Standard Owners' Warranty Period and reasonably promptly after
the occurrence or discovery of the matter giving rise to the claim for
indemnification (provided that, if such notice is actually served within
Standard Owners' Warranty Period, the failure to so reasonably promptly notify
Standard Owners shall not release Standard Owners from any liability which they
may have for indemnification except and only to the extent that the failure to
so reasonably promptly notify prejudices Standard Owners).
(b) Standard Owners shall not be obligated to make any
indemnification with respect to APCOA Damages pursuant to Section 11.2(a) unless
and until the aggregated amount of APCOA Damages sustained by APCOA Indemnitees
as a whole exceeds $2,000,000 (the "Basket"), provided that, once such Basket
has been satisfied, any indemnification with respect to APCOA Damages shall be
made by Standard Owners to the extent of any excess over the Basket, and
provided further that, for purposes of determining whether any breach has
occurred respecting a claim for indemnification or measuring APCOA Damages
hereunder, any requirement or qualification in any representation, warranty,
covenant or agreement of Standard Owners contained in this Agreement that an
event or fact be material or have a material adverse effect or similar language,
or qualification by such terms or by knowledge or similar language, shall be
ignored (other than with respect to the last sentence of Section 3.15, as to
which the knowledge qualification in this clause shall not apply) and all
representations, warranties, covenants and agreements shall be deemed to have
been made without any qualification by materiality, material adverse effect,
knowledge or similar language. In addition, the aggregate liability of the
Standard Owners in respect of their indemnification obligations set forth in the
foregoing paragraph (a) arising from the breach of any representation or
warranty (other than those contained in Sec-
-42-
55
tions 3.1(a)(i) and 3.2, as to which this limit shall not be applicable) shall
not exceed the aggregate amount available under the Escrow Agreement and the
Guarantee. With respect to a breach by a Standard Owner of a representation and
warranty made by such Standard Owner in Sections 3.1(a)(i) or 3.2, APCOA may
recover APCOA Damages from such Standard Owner (i) first, from such Standard
Owner's interest in the Escrowed Amount or Guarantee, as applicable, and (ii)
upon exhaustion of such Standard Owner's interest in the Escrowed Amount or
Guarantee, as applicable, directly from such Standard Owner.
(c) Each Standard Owner shall severally indemnify and hold harmless
APCOA and each APCOA Indemnitee against all Taxes (and related APCOA Damages)
relating to the Standard Companies for any period (or portion thereof) ending on
or prior to the Closing Date, except to the extent that such Taxes are reflected
as liabilities on the face of the Historical Standard Balance Sheet as of
October 31, 1997 (or, if a later dated Historical Standard Balance Sheet is
delivered to APCOA prior to the date that is two days prior to the Due Diligence
Out Termination Date, except to the extent that such Taxes are reflected as
liabilities on the face of such Historical Standard Balance Sheet) or incurred
in the ordinary course of business consistent with past practice and this
Agreement since such date, and, notwithstanding any other provisions in this
Agreement, such indemnification pursuant to this Section shall not be subject to
the Basket nor to any maximum amount.
(d) Xxxxx X. Xxxxxxxxx, and each Standard Owner severally, shall
indemnify and hold harmless APCOA and each APCOA Indemnitee against all APCOA
Damages relating to or arising out of the Excluded Assets, and, notwithstanding
any other provisions in this Agreement, such indemnification pursuant to this
Section shall not be subject to the Basket nor to any maximum amount.
Section 11.3. Survival of APCOA's Representations. The
representations, warranties, covenants and agreements made by APCOA in this
Agreement or pursuant hereto shall survive the Closing for a period of two years
thereafter (except for those contained in Sections 4.1 and 4.2 hereof, which
shall survive forever, and in Sections 4.17 and 7.2 hereof, which shall survive
until the expiration of all applicable statutes of limitations), provided that,
in the event of an IPO of shares of APCOA Common Stock within two years of the
Closing, such survival shall terminate on the later of (x) the consummation of
such IPO and (y) the 15-month anniversary of the Closing, and provided further
that such limitation shall not affect any claim for indemnification written
notice of which was provided to APCOA prior to the expiration of the applicable
time limitation (the period of survival, "APCOA's Warranty Period") and in
addition shall survive and shall be unaffected by (and shall not be deemed
waived by) any investigation, audit, appraisal or inspection at any time made by
or on behalf of Standard Owners. Any claims for indemnification made by Standard
Owners in accordance with this Section prior to the expiration of APCOA's
Warranty Period shall survive and shall not be extinguished by the expiration of
such period.
Section 11.4. Indemnification by APCOA. (a) Subject to the
limitations of Section 11.3 and this Section 11.4, APCOA agrees to indemnify,
defend and hold harmless Standard Owners, its officers, directors, employees,
agents, advisors, representatives and Affiliates (collectively, "Standard Owners
Indemnitees") from and against any and all demands, claims,
-43-
56
complaints, Actions or causes of action, suits, proceedings, investigations,
arbitrations, assessments, losses, damages, liabilities, costs and expenses,
including interest, penalties and reasonable attorneys' and accounting fees and
disbursements (including those relating to the enforcement of this indemnity)
("Standard Owners Damages"), asserted against, imposed upon or incurred by any
Standard Owner Indemnitee, directly or indirectly, by reason of, relating to or
resulting from (i) any nonfulfillment of any covenant or agreement on the part
of APCOA contained herein or (ii) any breach of representation or warranty on
the part of APCOA contained herein or any Schedule hereto or certificate,
document or other instrument delivered in connection herewith, provided that
notice of any claim for indemnification shall be submitted by the relevant
Standard Owner Indemnitee prior to the expiration of APCOA's Warranty Period and
reasonably promptly after the occurrence or discovery of the matter giving rise
to the claim for indemnification (provided that, if such notice is actually
served within APCOA's Warranty Period, the failure to so reasonably promptly
notify APCOA shall not release APCOA from any liability which they may have for
indemnification except and only to the extent that the failure to so reasonably
promptly notify prejudices APCOA).
(b) APCOA shall not be obligated to make any indemnification with
respect to Standard Owners Damages pursuant to Section 11.4(a) unless and until
the aggregated amount of Standard Owners Damages sustained by Standard Owners
Indemnitees as a whole (or not covered by insurance) exceeds the Basket,
provided that, once such Basket has been satisfied, any indemnification with
respect to Standard Owners Damages shall be made by APCOA to the extent of any
excess over the Basket, and provided further that, for purposes of determining
whether any breach has occurred respecting a claim for indemnification or
measuring Standard Owners Damages hereunder, any requirement or qualification in
any representation, warranty, covenant or agreement of APCOA contained in this
Agreement that an event or fact be material or have a material adverse effect or
similar language, or qualification by such terms or by knowledge or similar
language, shall be ignored and all representations, warranties, covenants and
agreements shall be deemed to have been made without any qualification by
materiality, material adverse effect, knowledge or similar language. In
addition, the aggregate liability of APCOA in respect of its indemnification
obligations set forth in the foregoing paragraph (a) arising from the breach of
any representation or warranty (other than those contained in Sections 4.1 and
4.2, as to which this limit shall not be applicable) shall not exceed an amount
equal to $10,000,000.
Section 11.5. Conditions of Indemnification. The obligations and
liabilities of the Parties with respect to the indemnities provided in this
Article XI resulting from any claim or other assertion of liability by third
parties (collectively, "Claims"), shall be subject to the following terms and
conditions:
(a) The APCOA Indemnitee or Standard Owner Indemnitee seeking
indemnification (the "Indemnified Party") shall give the relevant indemnitor or
indemnitors (the "Indemnifying Party") written notice of any such Claim within
the time period provided in Section 11.4.
(b) The Indemnifying Party shall have the right to undertake, by
counsel or other representatives of its own choosing, the defense of such Claim.
-44-
57
(c) In the event that the Indemnifying Party shall elect not to
undertake such defense, or within a reasonable time after notice of any such
Claim from the Indemnified Party shall fail to defend, the Indemnified Party
(upon further written notice to the Indemnifying Party) shall have the right to
undertake the defense, compromise or settlement of such Claim, by counsel or
other representatives of its own choosing, on behalf of and for the account and
risk of the Indemnifying Party.
(d) Anything in this Section 11.5 to the contrary notwithstanding:
(i) an Indemnified Party shall have the right, at its own cost
and expense, to have its own counsel to protect its own interests and
participate in the defense, compromise or settlement of any Claim;
(ii) an Indemnifying Party shall not, without the Indemnified
Party's written consent, settle or compromise any Claim or consent to entry of
any judgment which includes any non-monetary performance as a term thereof and
which does not include as an unconditional term thereof the giving by the
claimant or the plaintiff to the Indemnified Party of a release from all
liability in respect of such Claim; and
(iii) the Indemnified Party, by counsel or other
representative of its own choosing and at its sole cost and expense, shall have
the right to consult with the Indemnifying Party and its counsel or other
representatives concerning such Claim and the Indemnifying Party and the
Indemnified Party and their respective counsel shall cooperate with respect to
such Claim.
Section 11.6. Indemnification Sole Remedy. Each Party hereby
acknowledges and agrees that its sole and exclusive remedy with respect to any
and all monetary claims arising from any breach of any representation, warranty,
covenant or agreement set forth herein shall be pursuant to the indemnification
provisions set forth in this Article.
ARTICLE XII
Termination
Section 12.1. Termination. This Agreement may be terminated at any
time prior to the Closing:
(a) by mutual consent of the Parties; or
(b) by either Party, during the period ending on the earlier of the
30th day following the Schedules Date or such earlier time, at least 2 business
days following the Schedules Date, following notice to such effect by APCOA (the
earlier of such dates, the "Due Diligence Out Termination Date"), if, as a
result of the due diligence investigation being conducted by such Party any
matter comes to the attention of such Party that makes it inadvisable to proceed
with the transactions contemplated hereby, provided that the Party seeking to
terminate this Agreement under this clause (b) is not then in material breach of
this Agreement; or
-45-
58
(c) by APCOA on April 10, 1998, if the Closing shall not have
occurred by such date, provided that APCOA may not terminate this Agreement
under this clause (c) if it is then in material breach of this Agreement and
provided further that the right to terminate this Agreement under this clause
(c) shall not be available to APCOA if it has failed to fulfill any obligation
under this Agreement, and which failure has been the cause of, or resulted in,
the failure of the Closing to occur on or before such date; or
(d) by either Party, on or after April 30, 1998, if the Closing
shall not have occurred by such date, provided that the Party seeking to
terminate this Agreement under this clause (d) is not then in material breach of
this Agreement and provided further that the right to terminate this Agreement
under this clause (d) shall not be available to any Party whose failure to
fulfill any obligation under this Agreement has been the cause of, or resulted
in, the failure of the Closing to occur on or before such date; or
(e) by either Party, if any court of competent jurisdiction or other
Government Authority shall have issued an order, decree or ruling enjoining or
otherwise prohibiting the transactions contemplated by this Agreement (unless
such order, decree or ruling has been withdrawn, reversed or otherwise made
inapplicable), provided that the Party seeking to terminate this Agreement under
this clause (e) is not then in material breach of this Agreement and provided
further that the right to terminate this Agreement under this clause (e) shall
not be available to any Party who shall not have used best efforts to avoid the
issuance of such order, decree or ruling; or
(f) by APCOA, if there has been a violation or breach by Standard
Owners of any agreement, representation or warranty of Standard Owners contained
in this Agreement which (i) if curable, has not been cured by Standard Owners
within 15 days after receipt of notice from APCOA or (ii) has rendered the
satisfaction of any condition to the obligations of APCOA impossible and such
violation or breach has not been waived by APCOA, provided that APCOA is not
then in material breach of this Agreement; or
(g) by Standard Owners, if there has been a violation or breach by
APCOA of any agreement, representation or warranty of APCOA contained in this
Agreement which (i) if curable, has not been cured by APCOA within 15 days after
receipt of notice from Standard Owners or (ii) has rendered the satisfaction of
any condition to the obligation of Standard Owners impossible and such violation
or breach has not been waived by Standard Owners, provided that Standard Owners
are not then in material breach of this Agreement.
Section 12.2. Procedure and Effect of Termination. In the event of
termination of this Agreement pursuant to Section 12.1, written notice thereof
shall forthwith be given by the terminating Party to the other Party hereto, and
this Agreement shall thereupon terminate and become void and have no effect, and
the transactions contemplated hereby shall be abandoned without further action
by the Parties hereto, except that the provisions of Sections 5.1(b) and Article
XIII shall survive the termination of this Agreement, provided that such
termination shall not relieve any Party hereto of any liability for any breach
of this Agreement, and provided further that, in the event that either Party
terminates this Agreement pursuant to Section 12.1(d) and at the time of such
termination all conditions to the consummation of the Combination set forth
-46-
59
in Articles VIII and IX are satisfied or satisfiable other than the condition
set forth in Section 8.5 (and such condition is unsatisfied or unsatisfiable
other than as a result of any breach by Standard Owners or any Standard
Company), upon such termination, APCOA shall pay to Standard Owners by wire
transfer to the account or accounts specified by Standard Owners in writing the
sum of $2,500,000 in immediately available funds as liquidated damages hereunder
and APCOA shall be released from all obligations arising in connection with this
Agreement. If this Agreement shall be terminated, all filings, applications and
other submissions made in accordance with this Agreement shall, to the extent
practicable, be withdrawn from the persons to which they were made.
ARTICLE XIII
Miscellaneous
Section 13.1. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed by
each of the Parties and delivered to the other Party. Copies of executed
counterparts transmitted by telecopy shall be considered original executed
counterparts for purposes of this Section.
Section 13.2. Governing Law; Jurisdiction and Forum. (a) This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware without reference to the choice of law principles thereof.
(b) The Parties hereto agree that the appropriate and exclusive
forum for any disputes between any of the Parties hereto arising out of this
Agreement or the transactions contemplated hereby shall be any state or federal
court in the State of Delaware. The Parties hereto further agree that neither
Party shall bring suit with respect to any disputes arising out of this
Agreement or the transactions contemplated hereby, except as expressly set forth
below for the execution or enforcement of judgment, in any court or jurisdiction
other than the above specified court. The foregoing shall not limit the rights
of any Party to obtain execution of judgment in any other jurisdiction. The
Parties further agree, to the extent permitted by law, that a final and
unappealable judgment against any of them in any action or proceeding
contemplated above shall be conclusive and may be enforced in any other
jurisdiction within or outside the United States by suit on the judgment, a
certified or exemplified copy of which shall be conclusive evidence of the fact
and amount of such judgment.
(c) By the execution and delivery of this Agreement, each Party (i)
irrevocably designates and appoints The Corporation Trust Company ("CTC") care
of CT Corporation System at its offices in Wilmington, Delaware, as its
authorized agent upon which process may be served in any Action or proceeding
arising out of or relating to this Agreement, (ii) submits to the personal
jurisdiction of any state or federal court in the State of Delaware in any such
Action or proceeding and (iii) agrees that service of process upon CTC shall be
deemed in every respect effective service of process upon such person in any
such Action or proceeding. Each Party further agrees to take any and all
actions, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment
-47-
60
of CTC in full force and effect so long as this Agreement shall be in effect.
The foregoing shall not limit the rights of any Party to serve process in any
other manner permitted by law.
(d) To the extent that any Party has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, such
person hereby irrevocably waives such immunity in respect of its obligations
with respect to this Agreement.
Section 13.3. Entire Agreement; Third-Party Beneficiary. This
Agreement (including agreements incorporated herein) and the Schedules and
Exhibits hereto contain the entire agreement between the Parties with respect to
the subject matter hereof and there are no agreements, understandings,
representations or warranties between the Parties other than those set forth or
referred to herein. Except for those provisions hereof respecting APCOA or
Standard Indemnitees, which are intended to benefit and to be enforceable by the
APCOA or Standard Indemnitees, this Agreement is not intended to confer upon any
person not a Party hereto (or their successors and assigns permitted hereby) any
rights or remedies hereunder.
Section 13.4. Expenses. Except as set forth in this Agreement,
whether or not the Combination is consummated, all advisory, legal and other
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the Party incurring such costs
and expenses, except for the Standard Advisors Fee, which to the extent the
Combination is consummated shall be borne as provided in Section 3.16 (it being
understood and agreed that all advisory, legal and other costs and expenses
incurred by APCOA or its Affiliates in connection with this Agreement and the
transactions contemplated hereby shall be borne by APCOA).
Section 13.5. Notices. All notices and other communications
hereunder shall be sufficiently given for all purposes hereunder if in writing
and delivered personally or sent by documented overnight delivery service or, to
the extent receipt is confirmed and a copy also sent thereafter by personal
delivery or documented overnight delivery service, telecopy, telefax or other
electronic transmission service to the appropriate address or number as set
forth below. Notices to APCOA shall be addressed to:
Xxxxxxx Industries, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Financial Officer
Telecopy Number: (000) 000-0000
-48-
61
with copies to:
APCOA, Inc.
0000 XxXxxxxx Xxxxxxxxxx Xxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: General Counsel
Telecopy Number: (000) 000-0000
and
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Telecopy Number: (000) 000-0000
or at such other address and to the attention of such other person as APCOA
may designate by written notice to Standard Owners. Notices to Standard
Owners shall be addressed to:
Standard Parking, L.P.
000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Telecopy Number: (000) 000-0000
with copies to:
Standard Parking, L.P.
000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telecopy Number: (000) 000-0000
Standard Parking, L.P.
000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Telecopy Number: (000) 000-0000
Standard Parking, L.P.
000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telecopy Number: (000) 000-0000
-49-
62
SP Associates c/o JMB Realty Corp.
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy Number: (000) 000-0000
Xxxxx Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Best, Esq.
Telecopy Number: (000) 000-0000
and
Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopy Number: (000) 000-0000
or at such other address and to the attention of such other person as Standard
Owners may designate by written notice to APCOA.
Section 13.6. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Parties hereto and their respective
successors and assigns, provided that no Party hereto may assign its rights or
delegate its obligations under this Agreement without the express prior written
consent of each other Party hereto.
Section 13.7. Headings; Definitions. The Section, Article and other
headings contained in this Agreement are inserted for convenience of reference
only and shall not affect the meaning or interpretation of this Agreement. All
references to Sections or Articles contained herein mean Sections or Articles of
this Agreement unless otherwise stated.
Section 13.8. Amendments and Waivers. This Agreement may not be
modified or amended except by an instrument or instruments in writing signed by
the Party against whom enforcement of any such modification or amendment is
sought. Either Party hereto may, only by an instrument in writing, waive
compliance by the other Party hereto with any term or provision hereof on the
part of such other Party hereto to be performed or complied with. The waiver by
any Party hereto of a breach of any term or provision hereof shall not be
construed as a waiver of any subsequent breach.
Section 13.9. Interpretation; Absence of Presumption. (a) For the
purposes hereof, (i) "to the knowledge of Standard Owners and the Standard
Companies" shall mean the actual knowledge of the persons listed on Schedule
13.9S after reasonable inquiry and "to the actual knowledge of Standard Owners
and the Standard Companies" shall mean the same but
-50-
63
without any obligation of inquiry and "to the knowledge of APCOA" shall have a
correlative meaning as to the persons listed on Schedule 13.9A, (ii) words in
the singular shall be held to include the plural and vice versa and words of one
gender shall be held to include the other gender as the context requires, (iii)
the terms "hereof," "herein," and "herewith" and words of similar import shall,
unless otherwise stated, be construed to refer to this Agreement as a whole
(including all of the Schedules and Exhibits hereto) and not to any particular
provision of this Agreement, and Article, Section, paragraph and Schedule and
Exhibit references are to the Articles, Sections, paragraphs, Schedules and
Exhibits to this Agreement unless otherwise specified, (iv) the word "including"
and words of similar import when used in this Agreement shall mean "including,
without limitation," unless the context otherwise requires or unless otherwise
specified, (v) the word "or" shall not be exclusive, and (vi) provisions shall
apply, when appropriate, to successive events and transactions.
(b) This Agreement shall be construed without regard to any
presumption or rule requiring construction or interpretation against the Party
drafting or causing any instrument to be drafted.
(c) It is understood and agreed that neither the specification of
any dollar amount in the representations and warranties contained in this
Agreement nor the inclusion of any specific item in Schedules to this Agreement
is intended to imply that such amounts or higher or lower amounts, or the items
so included or other items, are or are not material, and neither Party shall use
the fact of the setting of such amounts or the fact of the inclusion of any such
item in the Schedules to this Agreement in any dispute or controversy between
the Parties as to whether any obligation, item or matter is or is not material
for purposes hereof.
Section 13.10. Severability. Any provision hereof which is invalid
or unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions hereof.
-51-
64
IN WITNESS WHEREOF, this Agreement has been signed by or on behalf
of each of the Parties as of the day first above written.
/s/ Xxxxx X. Xxxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxxx
/s/ Xxxxxxx Xxxxxxxxx
by Xxxxx X. Xxxxxxxxx
Attorney in fact
------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
by Xxxxx X. Xxxxxxxxx
Attorney in fact
------------------------------
Xxxxxx X. Xxxxxxxxx
XXXXXX PARTNERS, L.P.
By Standard Parking Corp.
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
SP PARKING ASSOCIATES
By: SP Parking Managers, L.P.
By: Standard Managers, Inc.
By: /s/ Xxxxxxx Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
-52-
65
SP ASSOCIATES
By: SP Managers, L.P.
By: Standard Managers, Inc.
By: /s/ Xxxxxxx Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
APCOA, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman of the Board
-53-
