EXHIBIT 10.34
AMENDED AND RESTATED DEALER MANAGER AND CONSENT SOLICITATION AGREEMENT
December 19, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Ladies and Gentlemen:
This Amended and Restated Dealer Manager Agreement was originally executed on
November 20, 2001, was amended and restated in its entirety on the date hereof
only to reflect changes to (1) the fee paid to the Dealer Manager and (2) the
payment of certain expenses by the Company.
1. THE EXCHANGE OFFER AND CONSENT SOLICITATION. APCOA/Standard Parking, Inc.,
a Delaware corporation ("Purchaser"), is making an exchange offer
(hereinafter referred to, together with any amendments, supplements or
extensions thereof, as the "Exchange Offer") to issue $50.00 million (with
a minimum of $45.50 million and a maximum of $65.00 million) of its new 14%
Senior Subordinated Second Lien Notes due 2006 (the "New Bonds") and shares
of its new 18% Senior Convertible Redeemable Preferred Stock (the
"Preferred Stock") in exchange for $41.43 million (with a minimum of $35.00
million and a maximum of $62.86 million) of the Purchaser's outstanding 9
1/4% Senior Subordinated Notes due 2008 (the "Old Bonds" and, together with
the New Bonds, the "Bonds") and a payment to the Purchaser of $506.90 in
cash for each $1,000 principal amount of Old Bonds tendered in exchange for
New Bonds (subject to adjustment) and such other amounts of Old Bonds as
may be tendered for exchange with the Preferred Stock, on the terms and
subject to the conditions set forth in the Offering Circular and Consent
Solicitation Statement (the "Offering Circular") and Consent and Letter of
Transmittal (the "Consent and Letter of Transmittal") attached hereto as
Exhibits A and B, respectively, as the same may be amended or supplemented
from time to time. The New Bonds will be guaranteed (the "Subsidiary
Guarantees") by the subsidiaries of the Company named on the signature
pages hereto (each, a "Guarantor" and, collectively, the "Guarantors").
Concurrently with the Exchange Offer, the Purchaser intends to solicit (the
"Solicitation") the consents (the "Consents") of the holders of the Old
Bonds to certain proposed amendments (the "Proposed Amendments") to the
indenture pursuant to which the Old Bonds were issued (the "Old
Indenture"). The Proposed Amendments, to the extent that the requisite
Consents are received, shall become effective upon the execution of a
supplemental indenture (the "Supplemental Indenture") in respect of the Old
Indenture
by the Purchaser and the several guarantors of the Old Bonds, but will not
become operative until the consummation of the Exchange Offer.
The New Bonds and the Preferred Stock will be offered and exchanged
pursuant to one or more exemptions from the registration requirements of
the Securities Act of 1933, as amended (the "Act"). Accordingly, the New
Bonds and the Preferred Stock will be offered to and exchanged with only
holders of the Old Bonds who are either (i) "Qualified Institutional Buyers
" (as defined in Rule 144A under the Act), (ii) "Institutional Accredited
Investors" (as defined in Rule 501(a) (1), (2), (3) or (7) under the Act)
("IAIs") or (iii) non-U.S. Persons who will exchange their Old Securities
outside the United States (within the meaning of Regulation S under the
Act) (each of the holders in immediately preceding clauses (i) through
(iii), the "Holders").
Holders of the New Bonds will have the registration rights set forth in the
registration rights agreement (the "Registration Rights Agreement"), to be
dated the date of consummation of the Exchange Offer, for so long as such
New Bonds constitute "Transfer Restricted Securities" (as defined in the
Registration Rights Agreement). Pursuant to the Registration Rights
Agreement, the Company and the New Guarantors will agree to file with the
Securities and Exchange Commission (the "Commission"), under the
circumstances set forth therein, (i) a registration statement under the Act
(the "Exchange Registered Statement") relating to the Company's new 14%
Senior Subordinated Second Lien Notes due 2006 (the "New Registered Bonds")
to be offered in exchange for the New Bonds (such offer to exchange being
referred to as the "Registered Exchange Offer") and the Subsidiary
Guarantees thereof and (ii), under certain circumstances, a shelf
registration statement pursuant to Rule 415 under the Act (the "Shelf
Registration Statement" and, together with the Exchange Registration
Statement, the "Registration Statements"), relating to the resale by
certain holders of the New Bonds, and to use their respective reasonable
best efforts to cause such Registration Statements to be declared and
remain effective and usable for the periods specified in the Registration
Rights Agreement and to consummate the Registered Exchange Offer.
2. APPOINTMENT AS DEALER MANAGER AND SOLICITATION AGENT. Purchaser hereby
appoints you as its sole Dealer Manager and Solicitation Agent (the "Dealer
Manager and Solicitation Agent") and authorizes you to act as such in
connection with the Exchange Offer and the Solicitation. On the basis of
the representations, warranties and covenants of Purchaser contained
herein, as Dealer Manager and Solicitation Agent, you agree, in accordance
with your customary practice, to perform those services in connection with
the Exchange Offer and the Solicitation as are customarily performed by
investment banks in connection with exchange offers and consent
solicitations of a like nature, including, but not limited to, using
reasonable best efforts to solicit tenders of Old Bonds, pursuant to the
Exchange Offer and Consents to the Proposed Amendments pursuant to the
Solicitation, and communicating generally regarding the Exchange Offer and
the Solicitation with brokers, dealers, commercial banks and trust
companies and other holders of Old Bonds. In such capacity, you shall act
as an independent contractor, and each of your duties arising out of your
engagement pursuant to this Agreement shall be owed solely to Purchaser.
Purchaser further authorizes you to communicate with Wilmington Trust
Company, in its capacity as Trustee for the New Bonds (the "Trustee"), and
in its capacity as exchange
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agent (the "Exchange Agent"), and with Mackenzie Partners, Inc., in its
capacity as information agent (the "Information Agent"), with respect to
matters relating to the Exchange Offer and Solicitation. Purchaser has
instructed the Exchange Agent to advise you at least daily as to the number
of Bonds that have been tendered pursuant to the Exchange Offer, the number
of Consents that have been delivered pursuant to the Solicitation, and as
to such other matters in connection with the Exchange Offer and the
Solicitation as you may request.
3. NO LIABILITY FOR ACTS OF BROKERS, DEALERS, BANKS AND TRUST COMPANIES.
Neither you nor any of your affiliates shall have any liability to
Purchaser or any other person for any losses, claims, damages, liabilities
and expenses (each, a "Loss" and collectively, the "Losses") arising from
any act or omission on the part of any broker or dealer (other than Credit
Suisse First Boston Corporation in its capacity as broker or dealer) in
securities (a "Dealer"), bank or trust company, or any other person, and
neither you nor any of your affiliates shall be liable for any Losses
arising from your own acts or omissions in performing your obligations as
Dealer Manager and Solicitation Agent or as a Dealer hereunder or otherwise
in connection with the Exchange Offer or the Solicitation, except for any
such Losses which are finally judicially determined to have resulted
primarily from your bad faith, willful misconduct or gross negligence in
performing the services that are the subject of this Agreement. In
soliciting or obtaining tenders or delivery of Consents, no Dealer (other
than you), bank or trust company is to be deemed to be acting as your agent
or the agent of Purchaser or any of its affiliates, and you, as Dealer
Manager and Solicitation Agent, are not to be deemed the agent of any
Dealer (other than you), bank or trust company or the agent or fiduciary of
Purchaser or any of its affiliates, security holders, creditors or of any
other person. In soliciting or obtaining tenders of Old Bonds or delivery
of Consents, you shall not be and shall not be deemed for any purpose to
act as a partner or joint venturer of or a member of a syndicate or group
with Purchaser or any of its affiliates in connection with the Exchange
Offer or the Solicitation, any exchange of the Old Bonds, any distribution
of the New Bonds or any distribution of the Preferred Stock, or otherwise,
and neither Purchaser nor any of its affiliates shall be deemed to act as
your agent. Purchaser shall have sole authority for the acceptance or
rejection of any and all tenders of Bonds or delivery of Consents.
4. THE EXCHANGE OFFER AND CONSENT SOLICITATION MATERIAL. Purchaser agrees to
furnish you, at its expense, with as many copies as you may reasonably
request of the Offering Circular, the Consent and Letter of Transmittal
(together with all exhibits, amendments and supplements thereto, the
"Offering Circular") to be used by the Purchaser in connection with the
Exchange Offer and the Solicitation and the transactions contemplated
thereby and any other documents used in connection therewith (including,
without limitation, press releases filed on Form 8-K), and other documents
filed or to be filed with the Commission or any other Federal or state
governmental or regulatory authorities or any court in connection with and
related to the Exchange Offer and Consent Solicitation (each an "Other
Agency" and collectively, the "Other Agencies") and any amendments or
supplements to any such statements and documents (the definitive forms of
all of the foregoing materials are hereinafter collectively referred to as
the "Exchange Offer and Consent Solicitation Material") to be used by
Purchaser or authorized by Purchaser for use in connection with the
Exchange Offer or the Solicitation, and you are authorized to use copies of
the Exchange Offer and Consent Solicitation Material in connection with the
Exchange Offer and Solicitation, but shall have no obligation to cause
copies of such Exchange Offer and Consent Solicitation
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Material to be transmitted generally to holders of Old Bonds. The Exchange
Offer and Consent Solicitation Material has been or will be prepared and
approved by, and is the sole responsibility of, Purchaser (except with
respect to any statements contained in the Exchange Offer and Consent
Solicitation Material than are made in reliance upon and in conformity with
information furnished or confirmed in writing by you to purchase expressly
for the use therein).
You hereby agree, as Dealer Manager and Solicitation Agent, that you will
not disseminate any written material for or in connection with the
solicitation of tenders of Old Bonds and delivery of Consents pursuant to
the Exchange Offer and Solicitation other than the Exchange Offer and
Consent Solicitation Material, and you agree that you will not make any
statements in connection with such solicitation, other than the statements
that are set forth in the Exchange Offer and Consent Solicitation Material
or as otherwise authorized by Purchaser, that authorization shall not be
unreasonably withheld.
Purchaser agrees that no Exchange Offer and Consent Solicitation Material
will be used in connection with the Exchange Offer and the Solicitation or
the transactions contemplated thereby or filed with the Commission or any
Other Agency with respect to the Exchange Offer and the Solicitation or the
transactions contemplated thereby without first obtaining your prior
approval, which approval shall not be unreasonably withheld. In the event
that (i) Purchaser uses or permits the use of any Exchange Offer and
Consent Solicitation Material in connection with the Exchange Offer and the
Solicitation or the transactions contemplated thereby or files any such
material with the Commission or any Other Agency without your prior
approval, (ii) any stop order or restraining order has been issued and not
thereafter stayed or vacated with respect to, or any proceeding, litigation
or investigation has been initiated by or before the Commission or any
Other Agency which is reasonably likely to have a material adverse effect
on Purchaser's ability to consummate the Exchange Offer and the
Solicitation, the exchange of Old Bonds for New Bonds and Preferred Stock
pursuant thereto, the obtaining and use of the funds to make such purchase,
the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby or thereby or (iii)
Purchaser shall have breached in any material respect any of the
representations, warranties or covenants, or failed to perform in any
material respect its obligations, under this Agreement, then you shall be
entitled to withdraw as Dealer Manager and Solicitation Agent in connection
with the Exchange Offer and the Solicitation without any liability or
penalty to you or any Indemnified Person (as hereinafter defined), and you
shall remain entitled to the indemnification provided in Section 12 hereof
and to receive the payment of all fees and expenses payable under this
Agreement that have accrued to the date of such withdrawal or would
otherwise be due to you on such date. If you withdraw as Dealer Manager and
Solicitation Agent pursuant to this paragraph, the fees accrued and
reimbursement for your expenses through the date of such withdrawal shall
be paid to you promptly after such date.
5. COMPENSATION. Purchaser agrees to pay you, as compensation for your
services as Dealer Manager and Solicitation Agent in connection with the
Exchange Offer and Consent Solicitation, a fee of $3.0 million
($3,000,000.00) payable promptly after consummation of the Exchange Offer.
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6. EXPENSES OF DEALER MANAGER AND SOLICITATION AGENT AND OTHERS. In addition
to your compensation for your services hereunder pursuant to Section 5
hereof, Purchaser agrees to pay directly, or reimburse you, as the case may
be, for (i) all reasonable fees and expenses incurred by you relating to
the preparation, printing, filing, mailing and publishing of all Exchange
Offer and Consent Solicitation Material, (ii) all fees and expenses of the
Trustee, the Exchange Agent and the Information Agent referred to in the
Offering Circular, (iii) all advertising charges in connection with the
Exchange Offer and the Solicitation or the transactions contemplated
thereby, including those of any public relations firm or other person or
entity rendering services in connection therewith, (iv) all fees, if any,
payable to Dealers (including you), and banks and trust companies as
reimbursement for their customary mailing and handling expenses incurred in
forwarding the Exchange Offer and Consent Solicitation Material to their
customers and (v) all other reasonable fees and expenses incurred by you in
connection with the Exchange Offer and the Solicitation or the transactions
contemplated thereby or otherwise in connection with the performance of
your services hereunder (including, without limitation, the fees and
expenses of your legal counsel in an amount not to exceed $300,000). All
payments to be made by Purchaser pursuant to this Section 6 shall be made
promptly against delivery to Purchaser of statements therefor. Purchaser
shall be liable for the foregoing payments whether or not the Exchange
Offer or the Solicitation or the transactions contemplated thereby are
commenced, withdrawn, terminated or canceled prior to the exchange of any
Bonds or the receipt of any Consents, or whether Purchaser or any of its
subsidiaries or affiliates acquires any Old Bonds or Consents pursuant to
the Exchange Offer and Consent Solicitation or whether you withdraw
pursuant to Section 4 hereof.
7. SECURITYHOLDER LISTS. Purchaser will cause you to be provided with cards or
lists or other records or copies thereof in such form as you may reasonably
request showing the names and addresses of, and the number of Old Bonds
held by, the holders of record or, to the extent available to Purchaser,
the beneficial owners of Old Bonds as of a recent date and will cause you
to be advised from day to day during the period of the Exchange Offer and
the Solicitation as to any transfers of record of Old Bonds.
8. SUFFICIENT FUNDS. Purchaser represents and warrants to you that it has or,
at the time Purchaser becomes obligated to exchange Old Bonds under the
Exchange Offer, will have, sufficient consideration in the form of validly
authorized and issued New Bonds and Preferred Stock to enable Purchaser to
exchange, and Purchaser hereby agrees that it will exchange promptly, in
accordance with and subject to the terms and conditions of the Exchange
Offer and the Solicitation and Sections 5 and 6 hereof and applicable law,
the consideration (and related costs) for the Old Bonds which Purchaser has
offered, and which Purchaser may be required, to exchange for New Bonds and
Preferred Stock under the Exchange Offer and the Solicitation, and the fees
and expenses payable hereunder.
9. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER.
Purchaser represents and warrants to you that:
a) Each of Purchaser and the Guarantors is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its businesses or the ownership or leasing of
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property requires such qualification, except to the extent that the
failure to be so qualified or to be in good standing would not have a
Material Adverse Effect on operations of Purchaser and the Guarantors
and all of their respective subsidiaries, taken as a whole, as the
case may be. As used herein, "MATERIAL ADVERSE EFFECT" shall mean,
with respect to any person or entity, any effect or group of related
or unrelated effects that would be reasonably expected to result in a
material adverse effect on the assets, properties, business, results
of operations or condition (financial or otherwise) of said person or
entity and its subsidiaries, taken as a whole.
b) (i) Each of Purchaser and the Guarantors has full corporate power and
authority to take and has duly taken all necessary corporate action to
authorize (A) the Exchange Offer the Solicitation, (B) the exchange by
Purchaser of the Old Bonds for the New Bonds and cash or Preferred
Stock pursuant to the Exchange Offer and the Solicitation and the
consummation of the other transactions contemplated thereby, and (C)
the execution, delivery and performance of this Agreement, (ii) this
Agreement has been duly authorized, executed and delivered on behalf
of Purchaser and, assuming due authorization, execution and delivery
of this Agreement by you, is a legal, valid and binding obligation of
Purchaser enforceable against Purchaser in accordance with its terms,
except that the enforceability hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws now or
hereafter in effect relating to creditors' rights generally and
general principles of equity.
c) (i) Each of Purchaser and the Guarantors, as applicable, has full
corporate power and authority to take and has duly taken all necessary
corporate action to authorize the execution, delivery and performance
of the Supplemental Indenture, the indenture pursuant to which the New
Bonds will be issued (the "New Indenture") and the Registration Rights
Agreement, and (ii) the Supplemental Indenture, the New Indenture and
the Registration Rights Agreement have been duly authorized by each of
Purchaser and the Guarantors, and assuming due execution and delivery,
the Supplemental Indenture, the New Indenture and the Registration
Rights Agreement, valid and binding obligations of each of Purchaser
and the Guarantors, as applicable, enforceable against each of them in
accordance with its terms, except as enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws now or hereafter in effect relating to creditors'
rights generally and general principles of equity and the right to
indemnification or contribution provided by the Registration Rights
Agreement may be limited by public policy considerations.
d) The Exchange Offer and Consent Solicitation Material complies or will
comply in all material respects with the applicable provisions of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated by the Commission thereunder (collectively,
the "Exchange Act"), and the Exchange Offer and Consent Solicitation
Material does not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements made therein, in light of
the circumstances under which they are made, not misleading; PROVIDED,
HOWEVER, that no representation is made with respect to any statements
contained in, or any matter omitted from the Exchange Offer and
Consent Solicitation Material in
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reliance upon and in conformity with information furnished or
confirmed in writing by you to Purchaser expressly for use therein.
e) Purchaser will file, if required, the Exchange Offer and Consent
Solicitation Material and any and all necessary amendments or
supplements to the Exchange Offer and Consent Solicitation Material
relating to the Exchange Offer and Consent Solicitation and the
transactions contemplated thereby with the Commission unless Purchaser
withdraws or terminates the Exchange Offer and will promptly furnish
to you true and complete copies of each such amendment and supplement
upon the filing thereof.
f) The Exchange Offer and the Solicitation, the exchange by Purchaser of
Old Bonds for New Bonds and Preferred Stock pursuant to the Exchange
Offer and the consummation of the other transactions contemplated
thereby, and the execution, delivery and performance of this Agreement
and all related documents by Purchaser, comply and will comply in all
material respects with all applicable requirements of Federal and
state law, including, without limitation, any applicable regulations
of the Commission and Other Agencies, and all applicable judgments,
orders or decrees; and no consent, authorization, approval, order,
exemption, registration, qualification or other action of, or filing
with or notice to, the Commission or any Other Agency is required in
connection with the execution, delivery and performance of this
Agreement by Purchaser, the making or consummation by Purchaser of the
Exchange Offer and the Solicitation or the consummation of the other
transactions contemplated by this Agreement or the Offering Circular,
except where the failure to obtain or make such consent,
authorization, approval, order, exemption, registration, qualification
or other action or filing or notification would not materially
adversely affect the ability of Purchaser to execute, deliver and
perform this Agreement or to commence and consummate the Exchange
Offer and the Solicitation in accordance with their respective terms.
All such required consents, authorizations, approvals, orders,
exemptions, registrations, qualifications and other actions of and
filings with and notices to the Commission and the Other Agencies will
have been obtained, taken or made, as the case may be, and all
statutory or regulatory waiting periods will have elapsed, prior to
the exchange of the Old Bonds for New Bonds and Preferred Stock
pursuant to the Exchange Offer and the Solicitation.
g) The Exchange Offer and the Solicitation, the exchange of Old Bonds for
New Bonds and Preferred Stock by Purchaser pursuant to the Exchange
Offer and the consummation of the other transactions contemplated
thereby, and the execution, delivery and performance of this Agreement
and the Registration Rights Agreement by Purchaser, do not and will
not (i) conflict with or result in a violation of any of the
provisions of the certificate of incorporation or by-laws (or similar
organizational documents) of Purchaser or any of its subsidiaries,
(ii) conflict with or violate in any material respect any law, rule,
regulation, order, judgment or decree applicable to Purchaser or any
of its subsidiaries or by which any property or asset of Purchaser or
any of its subsidiaries is or may be subject or bound, except to the
extent that such conflict or violation would not reasonably be
expected to have a Material Adverse Effect on Purchaser and all of its
subsidiaries taken as a whole or (iii) result in a breach of any of
the terms or provisions of, or constitute a default (with or without
due notice and/or lapse of
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time) under, any loan or credit agreement, indenture, mortgage, note
or other agreement or instrument to which Purchaser or any of its
subsidiaries or affiliates is a party or by which any of them or any
of their respective properties or assets is or may be subject or
bound, except to the extent that such breach or default would not
reasonably be expected to have Material Adverse Effect on Purchaser
and all of its subsidiaries taken as a whole.
h) On the date of consummation of the Exchange Offer and on the date of
execution of the Supplemental Indenture, the New Indenture and the Old
Indenture, as amended by the Supplemental Indenture (collectively, the
"Indentures"), will conform in all material respects to the
requirement of the Trust Indenture Act of 1939, as amended (the
"TIA"), and the rules and regulations of the Commission applicable to
an indenture which is qualified thereunder.
i) No stop order, restraining order or denial of an application for
approval has been issued and no investigation, proceeding or
litigation has been commenced or, to Purchaser's knowledge, threatened
before the Commission or any Other Agency with respect to the making
or consummation of the Exchange Offer and the Solicitation and the
other transactions contemplated thereby or the consummation of the
other transactions contemplated by this Agreement, the Registration
Rights Agreement or the Offering Circular or with respect to the
ownership of the Old Bonds by Purchaser or any of its subsidiaries or
affiliates.
j) None of Purchaser or the Guarantors has any knowledge of any material
fact or information concerning the Purchaser, the Guarantors or any of
their respective subsidiaries, or the operations, assets, condition
(financial or otherwise) or prospects of the Purchaser, the Guarantors
or any of its subsidiaries, which is required to be made generally
available to the public and which has not been, or is not being, or
will not be, made generally available to the public through the
Exchange Offer and Consent Solicitation Material or otherwise.
k) None of Purchaser or the Guarantors is, or will be as a result of the
exchange by Purchaser of Old Bonds for New Bonds and Preferred Stock
pursuant to the terms of the Exchange Offer, an "investment company"
under the Investment Company Act of 1940, as amended, and the rules
and regulations promulgated by the Commission thereunder.
l) Each of the representations, warranties, covenants and other
statements of Purchaser and the Guarantors set forth in this Agreement
will be true and correct on and as of the date on which the Exchange
Offer and the Solicitation is commenced and at all times during the
period of the Exchange Offer and the Solicitation.
10. OPINIONS OF PURCHASER'S COUNSEL. Purchaser shall deliver to you opinions
addressed to you and dated as of the date of the original execution of this
agreement and the date of the closing of the Exchange Offer of Xxxxxx
Xxxxx, Esq., Executive Vice President and General Counsel of Purchaser, and
White & Case LLP, (special counsel to Purchaser), with respect to the
matters set forth in Exhibits C-1 and C-2, respectively.
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11. NOTIFICATION OF CERTAIN EVENTS. Purchaser shall advise you promptly of (i)
the occurrence of any event that could cause Purchaser to withdraw,
rescind, modify or terminate the Exchange Offer or the Solicitation or the
transactions contemplated thereby or could permit Purchaser to exercise any
right not to exchange Old Bonds for New Bonds (other than Purchaser's
ability to adjust the amount of New Bonds issued as provided in the
Exchange Offer and Consent Solicitation Material) and Preferred Stock
tendered under the Exchange Offer, (ii) the occurrence of any event, or the
discovery of any fact, the occurrence or existence of which it believes
would require the making of any change in any of the Exchange Offer and
Consent Solicitation Material then being used or would cause any
representation, warranty or covenant contained in this Agreement to be
untrue or inaccurate in any material respect, (iii) any proposal or
requirement to make, amend or supplement any filing required by the
Exchange Act in connection with the Exchange Offer and the Solicitation or
the transactions contemplated thereby or to make any filing in connection
with the Exchange Offer and the Solicitation or the transactions
contemplated thereby pursuant to any other applicable law, rule or
regulation, (iv) the issuance by the Commission or any Other Agency of any
formal or informal comment or order or the taking of any other action
concerning the Exchange Offer and the Solicitation or the transactions
contemplated thereby (and, if in writing, will furnish you with a copy
thereof), (v) any material developments in connection with the Exchange
Offer and the Solicitation (or the financing thereof) or the transactions
contemplated thereby, including, without limitation, the commencement of
any lawsuit concerning the Exchange Offer and the Solicitation or the
transactions contemplated thereby and (vi) any other information relating
to the Exchange Offer and the Solicitation, the Exchange Offer and Consent
Solicitation Material or this Agreement or the transactions contemplated
hereby or thereby which you may from time to time reasonably request.
12. INDEMNIFICATION.
a) Purchaser agrees to hold harmless and indemnify you (including any
affiliated companies) and any officer, director, partner, employee or
agent of you or any of such affiliated companies and any entity or
person controlling (within the meaning of Section 20(a) of the
Exchange Act) you, including any affiliated companies (collectively,
the "Indemnified Persons"), from and against any and all Losses
whatsoever (including, but not limited to, any and all expenses
reasonably incurred in investigating, preparing or defending against
any litigation or proceeding, commenced or threatened, or any claims
whatsoever whether or not resulting in any liability) (i) arising out
of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Exchange Offer and Consent Solicitation
Material, or arising out of or based upon the omission or alleged
omission to state in the Exchange Offer and Consent Solicitation
Material Material a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (other than
statements or omissions made in reliance upon information furnished by
you in writing to Purchaser expressly for use therein), (ii) arising
out of or based upon the commencement of, or any withdrawal or
termination by Purchaser of, or failure by Purchaser to make or
consummate, the Exchange Offer, the Consent Solicitation or the other
transactions contemplated by this Agreement or the Tender Offer and
Consent Solicitation Material except in accordance with the terms of
the Exchange Offer and Consent Solicitation Material or this Agreement
or any other failure to comply with the terms and
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conditions specified in the Exchange Offer and Consent Solicitation
Material, (iii) arising out of the breach or alleged breach by
Purchaser of any representation, warranty or covenant set forth in
this Agreement, (iv) arising out of, relating to or in connection with
any other action taken or omitted to be taken by an Indemnified Person
or (v) otherwise arising out of, relating to or in connection with the
Exchange Offer and the Solicitation, the other transactions described
in the Exchange Offer and Consent Solicitation Material or your
services as Dealer Manager and Solicitation Agent hereunder. Purchaser
shall not, however, be responsible for any Loss pursuant to clauses
(iv) or (v) of the preceding sentence of this Section 12 that has been
finally judicially determined to have resulted primarily from the bad
faith, willful misconduct or gross negligence on the part of any
Indemnified Person, other than any Loss arising out of or resulting
from actions performed or omitted to be performed at the request of,
with the consent of, or in conformity with actions taken or omitted to
be taken by, Purchaser.
b) Purchaser and you agree that if any indemnification sought by any
Indemnified Person pursuant to this Section 12 is unavailable for any
reason or insufficient to hold you harmless, then Purchaser and you
shall contribute to the Losses for which such indemnification is held
unavailable or insufficient in such proportion as is appropriate to
reflect the relative benefits received (or anticipated to be received)
by Purchaser, on the one hand, and actually received by you, on the
other hand, in connection with the transactions contemplated by this
Agreement or the Exchange Offer and Consent Solicitation Material or,
if such allocation is not permitted by applicable law, not only such
relative benefits but also the relative faults of Purchaser, on the
one hand, and you, on the other hand, as well as any other equitable
considerations, subject to the limitation that in any event the
aggregate contribution by you to all Losses with respect to which
contribution is available hereunder shall not exceed the fees actually
received by you in connection with your engagement hereunder. It is
hereby agreed that the relative benefits to Purchaser, on the one
hand, and you, on the other hand, with respect to the Exchange Offer
and the Solicitation and the transactions contemplated by this
Agreement and the Exchange Offer and Consent Solicitation Material
shall be deemed to be in the same proportion as (i) the total value
expected to be received by Purchaser pursuant to the Exchange Offer
and the Solicitation and the transactions contemplated thereby
(whether or not the Exchange Offer and the Solicitation or such
transactions are consummated) bears to (ii) the fees actually received
by you from Purchaser in connection with your engagement hereunder.
c) The foregoing rights to indemnity and contribution shall be in
addition to any other right that you and the other Indemnified Persons
may have against Purchaser at common law or otherwise. If any
litigation or proceeding is brought against any Indemnified Person in
respect of which indemnification may be sought against Purchaser
pursuant to this Section 12, such Indemnified Person shall promptly
notify Purchaser in writing of the commencement of such litigation or
proceeding, but the failure so to notify Purchaser shall relieve
Purchaser from any liability which it may have hereunder only if, and
to the extent that, such failure results in the forfeiture by
Purchaser of substantial rights and defenses, and will not in any
event relieve Purchaser from any other obligation or liability that
they may have to any Indemnified Person other than under this
Agreement.
10
In case any such litigation or proceeding shall be brought against any
Indemnified Person and such Indemnified Person shall notify Purchaser
in writing of the commencement of such litigation or proceeding,
Purchaser shall be entitled to participate in such litigation or
proceeding, and, after written notice from Purchaser to such
Indemnified Person, to assume the defense of such litigation or
proceeding with counsel of its choice at its expense; PROVIDED,
HOWEVER, that such counsel shall be satisfactory to the Indemnified
Person in the exercise of its reasonable judgment. Notwithstanding the
election of Purchaser to assume the defense of such litigation or
proceeding, such Indemnified Person shall have the right to employ
separate counsel and to participate in the defense of such litigation
or proceeding, and Purchaser shall bear the reasonable fees, costs and
expenses of such separate counsel and shall pay such fees, costs and
expenses at least quarterly (provided that with respect to any single
litigation or proceeding or with respect to several litigations or
proceedings involving substantially similar legal claims, Purchaser
shall not be required to bear the fees, costs and expenses of more
than one such counsel in addition to any local counsel) if (i) in the
reasonable judgment of such Indemnified Person the use of counsel
chosen by Purchaser to represent such Indemnified Person would present
such counsel with a conflict of interest, (ii) the defendants in, or
targets of, any such litigation or proceeding include both an
Indemnified Person and Purchaser, and such Indemnified Person shall
have reasonably concluded that there may be legal defenses available
to it or to other Indemnified Persons that are different from or
additional to those available to Purchaser (in which case Purchaser
shall not have the right to direct the defense of such action on
behalf of the Indemnified Person), (iii) Purchaser shall not have
employed counsel satisfactory to such Indemnified Person, in the
exercise of the Indemnified Person's reasonable judgment, to represent
such Indemnified Person within a reasonable time after notice of the
institution of such litigation or proceeding or (iv) Purchaser shall
authorize in writing such Indemnified Person to employ separate
counsel at the expense of Purchaser. In any action or proceeding the
defense of which Purchaser assumes, the Indemnified Person shall have
the right to participate in such litigation and retain its own counsel
at such Indemnified Person's own expense. Purchaser and you agree to
notify the other promptly of the assertion of any claim against it,
any of its directors or officers or any entity or person who controls
it within the meaning of Section 20(a) of the Exchange Act in
connection with the Exchange Offer and the Solicitation. The foregoing
indemnification commitments shall apply whether or not the Indemnified
Person is a formal party to such litigation or proceeding.
d) Purchaser agrees to reimburse each Indemnified Person for all
reasonable expenses (including reasonable fees and disbursements of
counsel) as they are incurred by such Indemnified Person in connection
with investigating, preparing for, defending or providing evidence
(including appearing as a witness) with respect to any action, claim,
investigation, inquiry, arbitration or other proceeding referred to in
this Section 12 or enforcing this Agreement, whether or not in
connection with pending or threatened litigation in which any
Indemnified Person is a party.
e) Purchaser agrees that it will not, without your prior written consent,
settle, compromise or consent to the entry of any judgment in any
pending or
11
threatened claim, action or proceeding in respect of which
indemnification may be sought hereunder (whether or not you, any other
Indemnified Person or Purchaser is an actual or potential party),
unless such settlement, compromise or consent (i) includes an
unconditional release of each Indemnified Person from all liability
arising out of such claim, action or proceeding and (ii) does not
include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of an Indemnified Person.
f) The foregoing rights to indemnity and contribution shall apply whether
or not the Indemnified Person is a formal party to such litigation or
proceeding and shall be in addition to any other right which you and
the other Indemnified Persons may have against Purchaser at common law
or otherwise.
13. CONDITIONS TO OBLIGATIONS OF THE DEALER MANAGER AND SOLICITATION AGENT.
Your obligations hereunder shall at all times be subject to the conditions
that (a) all representations, warranties, covenants and other statements of
Purchaser and the Guarantors contained herein are now, and at all times
during the period of the Exchange Offer and the Solicitation shall be, true
and correct in all material respects, (b) Purchaser at all times shall have
performed in all material respects all its obligations hereunder
theretofore to be performed and (c) at the closing of the Exchange Offer,
you shall have received a certificate dated the date of the closing of the
Exchange Offer, signed by the Chief Executive Officer and the Chief
Financial Officer of Purchaser, confirming (i) that all representations,
warranties, covenants and other statements of Purchaser and the Guarantors
contained herein are, as of such date, true and correct in all material
respects, (ii) that each of the Purchaser and the Guarantors have complied
with all of the agreements and satisfied all of the conditions herein
contained and/or required to be complied with or satisfied on or prior to
the closing of the Exchange Offer and the Solicitation and (iii) such other
customary representations, warranties and other matters as are requested by
you and your counsel.
14. TERMINATION. This Agreement shall terminate upon the expiration,
termination or withdrawal of the Exchange Offer and the Solicitation or
upon withdrawal by you as Dealer Manager and Solicitation Agent pursuant to
Section 4 hereof, it being understood that Sections 3, 5, 6, 8, 9, 12, 14,
16, 17, 19, 20, 21, 22, 23 and 24 hereof shall survive any termination of
this Agreement. In addition, you will have the right to terminate this
Agreement if the opinions of counsel specified in Section 10 hereof are not
received by you on the dates specified in Section 10.
15. NOTICES. All notices and other communications required or permitted to be
given under this Agreement shall be in writing and shall be given (and
shall be deemed to have been given upon receipt) by delivery in person, by
cable, by telecopy, by telegram, by telex or by registered or certified
mail (postage prepaid, return receipt requested) to the applicable party at
the addresses indicated below:
a) if to you:
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy No.: (000) 000-0000
12
Attention: Transactions Advisory Group
with a copy to:
XXXXXX & XXXXXXX
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxx, Esq.
b) if to Purchaser:
APCOA/STANDARD PARKING, INC.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: General Counsel
with a copy to:
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxx
16. CONSENT TO JURISDICTION; SERVICE OF PROCESS. Purchaser hereby (a) submits
to the jurisdiction of any New York State or Federal court sitting in the
City of New York with respect to any actions and proceedings arising out of
or relating to this Agreement, (b) agrees that all claims with respect to
such actions or proceedings may be heard and determined in such New York
State or Federal court, (c) waives the defense of an inconvenient forum,
(d) agrees not to commence any action or proceeding relating to this
Agreement other than in a New York State or Federal court sitting in the
City of New York and (e) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law.
17. JOINT AND SEVERAL OBLIGATIONS, ETC. In the event that Purchaser makes the
Exchange Offer and the Solicitation through one or more of its affiliates,
each reference in this Agreement to Purchaser shall be deemed to be a
reference to Purchaser and any such affiliates, and the representations,
warranties, covenants and agreements of Purchaser and any such affiliates
hereunder shall be joint and several.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and undertakings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof.
13
19. AMENDMENT. This Agreement may not be amended except in writing signed by
each party to be bound thereby.
20. GOVERNING LAW. The validity and interpretation of this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of New York, without regard to conflicts of law principles thereof.
21. WAIVER OF JURY TRIAL. PURCHASER HEREBY AGREES ON ITS OWN BEHALF AND, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS SECURITY HOLDERS, TO
WAIVE ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTER-CLAIM
OR ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING, WITHOUT LIMITATION, THE
EXCHANGE OFFER AND THE SOLICITATION).
22. COUNTERPARTS; SEVERABILITY. This Agreement may be executed in two or more
separate counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. Any term or
provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions
of this Agreement in any other jurisdiction.
23. PARTIES IN INTEREST. This Agreement, including rights to indemnity and
contribution hereunder, shall be binding upon and inure solely to the
benefit of each party hereto, the Indemnified Persons and their respective
successors, heirs and assigns, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other person any right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
24. TOMBSTONE. Purchaser acknowledges that you may, subject to applicable
securities laws, at your expense place an announcement in such newspapers
and periodicals as you may choose, stating that you have acted or are
acting as Dealer Manager and financial advisor to Purchaser in connection
with the Exchange Offer and the Solicitation and the transactions
contemplated thereby.
[SIGNATURE PAGES FOLLOW]
14
Please indicate your willingness to act as Dealer Manager and your
acceptance of the foregoing provisions by signing in the space provided
below for that purpose and returning to us a copy of this Agreement so
signed, whereupon this Agreement and your acceptance shall constitute a
binding agreement between us.
Very truly yours,
A-1 Auto Park, Inc.
By:
--------------------------------------------------
Name: G. Xxxx Xxxxxxx
Title: Vice President, Treasurer
AP Holdings, Inc.
By:
--------------------------------------------------
Name: G. Xxxx Xxxxxxx
Title: Treasurer
APCOA Capital Corporation
By:
--------------------------------------------------
Name: G. Xxxx Xxxxxxx
Title: Vice President, Treasurer
Century Parking, Inc.
By:
--------------------------------------------------
Name: G. Xxxx Xxxxxxx
Title: Vice President, Treasurer
Events Parking Co., Inc.
By:
--------------------------------------------------
Name: G. Xxxx Xxxxxxx
Title: Treasurer
15
Hawaii Parking Maintenance, Inc.
By:
--------------------------------------------------
Name: G. Xxxx Xxxxxxx
Title: Vice President, Treasurer
Metropolitan Parking System, Inc.
By:
--------------------------------------------------
Name: G. Xxxx Xxxxxxx
Title: Treasurer
S&S Parking, Inc.
By:
--------------------------------------------------
Name: G. Xxxx Xxxxxxx
Title: Vice President, Treasurer
Sentinel Parking Co. of Ohio, Inc.
By:
--------------------------------------------------
Name: G. Xxxx Xxxxxxx
Title: Vice President, Treasurer
Sentry Parking Corporation
By:
--------------------------------------------------
Name: G. Xxxx Xxxxxxx
Title: Vice President, Treasurer
Standard Auto Park, Inc.
By:
--------------------------------------------------
Name: G. Xxxx Xxxxxxx
Title: Treasurer
16
Standard Parking Corporation
By:
--------------------------------------------------
Name: G. Xxxx Xxxxxxx
Title: Treasurer
Standard Parking Corporation, IL
By:
--------------------------------------------------
Name: G. Xxxx Xxxxxxx
Title: Treasurer
Tower Parking, Inc.
By:
--------------------------------------------------
Name: G. Xxxx Xxxxxxx
Title: Vice President, Treasurer
Virginia Parking Service, Inc.
By:
--------------------------------------------------
Name: G. Xxxx Xxxxxxx
Title: Vice President, Treasurer
APCOA Xxxxxxx Parking Company, LLC
By: APCOA/Standard Parking, Inc., its Sole Member
By:
--------------------------------------------------
Name: G. Xxxx Xxxxxxx
Title: Executive Vice President, Chief Financial
Officer, Treasurer
APCOA LaSalle Parking Company, L.L.C.
By: APCOA/Standard Parking Inc., its Manager
By:
--------------------------------------------------
Name: G. Xxxx Xxxxxxx
Title: Executive Vice President, Chief Financial
Officer, Treasurer
17
Executive Parking Industries, L.L.C.
By: APCOA/Standard Parking, Inc., its Manager
By:
--------------------------------------------------
Name: G. Xxxx Xxxxxxx
Title: Executive Vice President, Chief Financial
Officer, Treasurer
Accepted as of the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
--------------------------------------------------
Name:
Title:
18
Exhibit A
Offering Circular
19
Exhibit B
Letter of Transmittal
20
Exhibit C-1
Matters to be Addressed in the Opinion of Xxxxxx Xxxxx, Esq.
a) Each of Purchaser and the Guarantors is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its businesses or the ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or to be in good standing, considering all such cases
in the aggregate, would not reasonably be expected to have a Material
Adverse Effect on Purchaser and all of its subsidiaries, taken as a
whole.
b) Purchaser has full corporate power and authority to take and has duly
taken all necessary corporate action to authorize (i) the Exchange
Offer and the Solicitation, (ii) the exchange by Purchaser of Old
Bonds and, in certain cases, cash for New Bonds and Preferred Stock
pursuant to the Exchange Offer and the consummation of the other
transactions contemplated thereby, subject to the filing of the
Certificate of Designation with the state of Delaware, and (iii) the
execution, delivery and performance of this Agreement, and this
Agreement has been duly executed and delivered on behalf of Purchaser
and, assuming due authorization, execution and delivery of this
Agreement by Credit Suisse First Boston Corporation, is a legal, valid
and binding obligation of Purchaser enforceable against Purchaser in
accordance with its terms except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or other similar
laws affecting enforcement of creditor's rights generally and by
general equitable principles (regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law) and
except as rights to indemnity and contribution may be limited by
federal or state laws or as being against public policy.
c) The Exchange Offer and the Solicitation, the exchange of Old Bonds
and, in certain cases, cash by Purchaser for New Bonds and Preferred
Stock pursuant to the Exchange Offer and the consummation of the other
transactions contemplated thereby, and the execution, delivery and
performance of this Agreement by Purchaser and the Guarantors, do not
and will not (i) conflict with or result in a violation of any of the
provisions of the certificate of incorporation or by-laws (or similar
organizational documents) of Purchaser or any of its subsidiaries,
(ii) conflict with or violate in any material respect any law, rule,
regulation, order, judgment or decree applicable to Purchaser or by
which any property or asset of Purchaser or any of its subsidiaries is
or may be bound, except to the extent that such conflict or violation
would not reasonably be expected to have a Material Adverse Effect on
Purchaser and all of its subsidiaries taken as a whole or (iii) result
in a breach of any of the material terms or provisions of, or
constitute a default (with or without due notice and/or lapse of time)
under, any loan or credit agreement, indenture, mortgage, note or
other agreement or instrument to which Purchaser or any of its
subsidiaries is a
21
party or by which any of them or any of its properties or assets is or
may be bound, except to the extent that such breach or default would
not reasonably be expected to have a Material Adverse Effect on
Purchaser and all of its subsidiaries taken as a whole.
d) The Exchange Offer and the Consent Solicitation, the exchange by
Purchaser of Old Bonds and, in certain cases, cash for New Bonds and
Preferred Stock pursuant to the Exchange Offer and the consummation of
the other transactions contemplated thereby, and the execution,
delivery and performance of this Agreement by Purchaser and the
Guarantors, comply and will comply in all material respects with all
applicable requirements of Federal, state and local law, (other than
U.S. federal and state securities or "blue sky" laws and regulations
as to which we do not express any opinion), any applicable regulations
of Other Agencies (other than the Commission or Other Agencies that
regulate securities as to which we do not express any opinion), and
all applicable judgments, orders or decrees, and no consent
authorization, approval, order, exemption, registration, qualification
or other action of, or filing with or notice to, any Other Agencies is
required (other than the Commission or Other Agencies that regulate
securities, as to which we do not express any opinion) in connection
with the execution, delivery and performance of this Agreement by
Purchaser or any of the Guarantors, the making or consummation by
Purchaser of the Exchange Offer and the Solicitation or the
consummation of the other transactions contemplated by this Agreement
or the Offering Circular, except where the failure to obtain or make
such consent, authorization, approval, order, exemption, registration,
qualification or other action or filing or notification would not
materially adversely affect the ability of Purchaser to execute,
deliver and perform this Agreement or to commence and consummate the
Exchange Offer or the Solicitation in accordance with their respective
terms.
e) Except as expressly disclosed in the Offering Circular, no stop order,
restraining order or denial of an application for approval has been
issued and no investigation, proceeding or litigation has been
commenced or, to such counsel's knowledge threatened before the
Commission or any Other Agency with respect to the making or
consummation of the Exchange Offer and the Solicitation and the other
transactions contemplated thereby or the consummation of the other
transactions contemplated by this Agreement or the Exchange Offer and
Consent Solicitation Material or with respect to the ownership of the
Bonds by Purchaser, the Guarantors or any of their respective
subsidiaries.
f) To such counsel's knowledge, Purchaser has no knowledge of any
material fact or information concerning Purchaser or any of its
subsidiaries, or the operations, assets, condition (financial or
otherwise) of Purchaser or any of its subsidiaries, that is required
to be made generally available to the public and which has not been,
or is not being, or will not be, made generally available to the
public through the Exchange Offer and Consent Solicitation Material or
otherwise.
g) The statements under the captions "Business Government Regulation" and
"Business Legal Proceedings" in the Offering Circular, insofar as such
statements constitute a summary of the legal matters, documents or
proceedings
22
referred to therein, fairly present in all material respects such
legal matters, documents and proceedings.
Such counsel shall also advise that no facts have come to its attention
which has caused it to believe that the Exchange Offer and Consent
Solicitation Materials (apart from the financial information contained or
incorporated by reference therein, as to which such counsel expresses no
opinion) contains any untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they
were made, not misleading.
23
Exhibit C-2
Matters to be Addressed in the Opinion of White & Case LLP
a) None of (i) the issuance, sale and delivery by Purchaser of the New
Bonds and Preferred Stock pursuant to the Exchange Offer, (ii) the
execution and delivery of the Agreement, (iii) the compliance by
Purchaser with the terms and provisions thereof or (iv) the
consummation by Purchaser of the Transactions (as defined in the
Offering Circular), will conflict with, constitute a default under, or
violate any New York State law or Delaware corporation law or United
States federal law or regulation which are explicitly and normally
applicable to transactions of the type contemplated by the Exchange
Offer, except where such conflict or default would not reasonably be
expected to have a Material Adverse Effect on Purchaser and all of its
subsidiaries taken as a whole.
No consent, approval, authorization, order, license, registration or
qualification of or with any governmental agency or body is required
for the issue and sale by Purchaser of the New Bonds or Preferred
Stock pursuant to the Exchange Offer, the solicitation of Consents or
the consummation by Purchaser of the other Transactions (as defined in
the Offering Circular) or as contemplated by the Registration Rights
Agreement, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been obtained under
the Securities Act, the Securities Exchange Act and the Trust
Indenture Act and state securities or Blue Sky laws in connection with
the exchange of Old Bonds for New Bonds and Preferred Stock, except
where the failure to obtain such consent, approval, authorization,
order, license, registration or qualification would not reasonably be
expected to have Material Adverse Effect on Purchaser and all of its
subsidiaries taken as a whole.
b) Except as expressly disclosed in the Offering Circular, to such
counsel's knowledge no stop order, restraining order or denial of an
application for approval has been issued and no investigation,
proceeding or litigation has been commenced or threatened before the
Commission or any Other Agency with respect to the making or
consummation of the Exchange Offer and the Solicitation or the
consummation of the other transactions contemplated by this Agreement
or the Offering Circular or with respect to the ownership of the Bonds
by Purchaser or any of their respective subsidiaries.
c) None of Purchaser or the Guarantors is, or will be as a result of the
exchange by Purchaser of Old Bonds for New Bonds and Preferred Stock
pursuant to the terms of the Exchange Offer, an "investment company"
under the Investment Company Act of 1940, as amended, and the rules
and regulations promulgated by the Commission thereunder.
d) The Exchange Offer and Consent Solicitation Material, taken as a
whole, comply with Rule 14e-1 under the Exchange Act.
e) The Indentures conform in all material respects to the requirement of
the TIA and the rules and regulations of the Commission applicable to
an indenture which is qualified thereunder.*
24
f) The statements set forth in the Offering Circular under the caption
"Description of Notes," insofar as it purports to constitute a summary
of the terms of the New Bonds, the New Indenture, the Registration
Rights Agreement and the Subsidiary Guarantee, fairly summarize in all
material respects the terms thereof.* The statements contained in the
section of the Offering Circular captioned "Certain U.S. Federal
Income Tax Considerations," to the extent such statements constitute
matters of the U.S. Federal income tax law and legal conclusions with
respect thereto, are accurate in all material respects.
g) The Preferred Stock has been duly authorized and, upon payment and
delivery in accordance with the Dealer Manager Agreement will be
validly issued, fully paid and non-assessable.
h) The New Bonds have been duly authorized and validly executed and
delivered by the Company. When the New Bonds have been issued,
executed and authenticated in accordance with the provisions of the
New Indenture and delivered to and exchanged for by the Holders of the
Old Bonds in accordance with the terms of the Exchange Offer, the New
Bonds will be entitled to the benefits of the New Indenture and will
be valid and binding obligations of the Company, enforceable in
accordance with their terms except as the enforceability thereof may
be limited by (i) bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) equitable principles of general
applicability (whether considered in a proceeding in equity or at
law).*
i) The New Registered Bonds have been duly authorized by the Company.
When the New Registered Bonds are issued, executed and authenticated
in accordance with the terms of the Registered Exchange Offer and the
New Indenture, the New Registered Bonds will be entitled to the
benefits of the New Indenture and will be the valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability.*
j) The Subsidiary Guarantee endorsed on the New Bonds by each Guarantor
has been duly authorized, executed and delivered by each such
Guarantor, is entitled to the benefits of the New Indenture and is the
valid and binding obligation of such Guarantor, enforceable against
such Guarantor in accordance with its terms, except as the
enforceability thereof may be limited by (i) bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) equitable
principles of general applicability (whether considered in a
proceeding in equity or at law).*
k) The Subsidiary Guarantee to be endorsed on the New Registered Bonds by
each Guarantor has been duly authorized by such Guarantor.*
l) The Agreement has been duly authorized and validly executed and
delivered by the Company and constitutes a legal, valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms except
25
as the enforceability thereof may be limited by (i) bankruptcy,
insolvency or similar laws affecting creditors' rights generally and
(ii) equitable principles of general applicability (whether considered
in a proceeding in equity or at law), and that rights to
indemnification or contribution provided for in this Agreement may be
limited by federal and state laws or as being against public policy.
m) Each of the New Indenture, the Supplemental Indenture and the
Registration Rights Agreement has been duly authorized and validly
executed and delivered by the Company and constitutes a legal, valid
and binding agreement of the Company, enforceable against the Company
in accordance with its terms except as the enforceability thereof may
be limited by (i) bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) equitable principles of general
applicability (whether considered in a proceeding in equity or at
law), and that rights to indemnification or contribution provided for
in the Registration Rights Agreement may be limited by federal or
state laws or as being against public policy.*
Such counsel shall also advise that no facts have come to its attention
which has caused it to believe that the Exchange Offer and Consent
Solicitation Material (apart from the financial information contained or
incorporated by reference therein as to which such counsel expresses no
opinion) contains any untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances under which they
were made, not misleading.
"*" signifies opinions that will only be delivered at the Closing.
26
