EXHIBIT 2.2
AGREEMENT FOR SALE AND PURCHASE
OF MEMBERSHIP INTERESTS
Between
GATEWAY GROUP, INC.
and
SLC HOLDINGS, L.L.C.
and
CENTRAL PARKING SYSTEM REALTY, INC.
and
CENTRAL PARKING SYSTEM REALTY OF MISSOURI, INC.
Dated as of November 22, 199
AGREEMENT FOR SALE AND PURCHASE
OF MEMBERSHIP INTERESTS
THIS AGREEMENT FOR SALE AND PURCHASE OF MEMBERSHIP INTERESTS
("Agreement") is entered into effective November 22, 1996, by and
among Gateway Group, Inc., a Missouri corporation ("Gateway"), SLC
Holdings, L.L.C., a Missouri limited liability company ("SLC")
(Gateway and SLC being referred to collectively herein as
"Sellers"), and Central Parking System Realty, Inc., a Tennessee
corporation, and Central Parking System Realty of Missouri, Inc., a
Tennessee corporation (referred to together herein as "Buyers" or
individually as a "Buyer") (Sellers and Buyers being referred to
collectively herein as the "Parties").
WHEREAS, Sellers in the aggregate own all of the outstanding
units of membership interest ("Units") of Civic Parking, L.L.C., a
Missouri limited liability company ("Civic Parking"); and
WHEREAS, this Agreement contemplates a transaction in which
Buyers will purchase certain of the Units from Sellers, and Sellers
will sell such Units to Buyers, all on the terms hereinafter set
forth; and
WHEREAS, each Buyer is a subsidiary of Central Parking
Corporation, a Tennessee corporation ("Buyers' Parent"); and
concurrently with the execution of this Agreement Buyers' Parent is
executing a guaranty of Buyers' obligations hereunder;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations,
warranties, and covenants herein contained, the Parties agree as
follows.
1. DEFINITIONS.
(a) Defined Terms. Capitalized terms used in this Agreement
have the following meanings:
"Adverse Consequences" means all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands,
injunctions, judgments, orders, decrees, rulings, damages, dues,
penalties, fines, costs, reasonable amounts paid in settlement,
liabilities, obligations, taxes, liens, losses, expenses, and fees,
including court costs and reasonable attorneys' fees and expenses.
"Affiliates" means, with respect to a Person, all other Persons
controlling, controlled by or under common control with such Person,
and with respect to a Person other than an individual, the
respective shareholders, members, managers, directors and officers
of such Person and its Affiliates.
"Agreement" means this Agreement for Sale and Purchase of
Membership Interests, including the Exhibits and Schedules hereto,
as amended from time to time.
"Agreement Relating to Parking" means an agreement substantially
as set forth in Exhibit E attached hereto, to be entered into not
later than the Closing.
"Bus Lot" means the real property known as the "Bus Lot" and
described in item 1 to Exhibit D hereto.
"Buyer" and "Buyers" have the meanings set forth in the preamble
above.
"Buyers' Parent" has the meaning set forth in the preamble
above.
"CCC Purchase Agreement" means the Purchase and Sale Agreement
by and among Gateway, St. Louis National Baseball Club, Inc., Civic
Center Corporation and Anheuser-▇▇▇▇▇ Companies, Inc. dated as of
December 22, 1995 relating to, among other things, the purchase of
Civic Parking's assets from Civic Center Corporation.
"Civic Parking" has the meaning set forth in the preamble above.
"Closing" has the meaning set forth in Section 2(c) below.
"Closing Balance Sheet" has the meaning set forth in Section 2(b)
below.
"Closing Date" has the meaning set forth in Section 2(c) below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Confidential Information" means any information concerning (i)
the terms or conditions of this Agreement or (ii) the businesses and
affairs of Civic Parking or its Affiliates that is not already
generally available to the public; except that Confidential
Information does not include information that hereafter becomes
generally available to the public other than as a result of the acts
or omissions of Buyers or their Affiliates.
"Disclosure Schedule" has the meaning set forth in Section 4 below.
"Due Diligence Period" means the period ending November 15,
1996.
"Effective Date" means the date first written above.
"Excluded Assets" has the meaning set forth in Section 5(c) below.
"Gateway" has the meaning set forth in the preamble above.
"▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended.
"Indebtedness" means, with respect to a Person, indebtedness of
such Person for money borrowed, including interest thereon.
"Indemnified Party" has the meaning set forth in Section 8(d) below.
"Indemnifying Party" has the meaning set forth in Section 8(d) below.
"Operating Agreement" means the Amended and Restated Operating
Agreement of Civic Parking dated effective February 12, 1996, a copy
of which is attached hereto as Exhibit A, as further amended and/or
restated from time to time prior to the Closing.
"Ordinary Course of Business" means the ordinary course of
business consistent with past custom and practice (including with
respect to quantity and frequency).
"Parties" has the meaning set forth in the preamble above.
"Person" means an individual, a partnership, a corporation, an
association, a limited liability company, a joint stock company, a
trust, a joint venture, an unincorporated organization, or a
governmental entity (or any department, agency, or political
subdivision thereof).
"Price Adjustments" has the meaning set forth in Section 2(b) below.
"Promissory Note" has the meaning set forth in Section 2(d) below.
"Purchase Price" has the meaning set forth in Section 2(b) below.
"Purchased Units" means (i) all of the Units owned by Gateway,
constituting 1% of all Units, and (ii) all of the Units owned by
SLC, constituting 99% of all Units, constituting in the aggregate
100% of all Units.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Interest" means any mortgage, deed of trust, pledge,
lien, encumbrance, charge, security agreement or other security
interest, other than (a) mechanic's, materialmen's, and similar
liens, (b) liens for taxes not yet due and payable, (c) purchase
money liens and liens securing rental payments under capital lease
arrangements, and (d) other liens arising in the Ordinary Course of
Business and not incurred in connection with the borrowing of money.
"Security Obligations" means obligations of such Person pursuant
to contracts, pledges, guaranties, Security Interests and other
instruments securing Indebtedness of such Person or its Affiliates.
"Sellers" has the meaning set forth in the preamble above.
"Sellers' Estoppel Certificate" has the meaning set forth in
Section 7(a)(xii) below.
"Sellers' Knowledge" means the actual knowledge, without
independent investigation, of ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
or ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who are the directors and officers of
Gateway and the managers and officers of SLC.
"SLC" has the meaning set forth in the preamble above.
"Subsidiary" means any corporation or other entity with respect
to which a specified Person (or a Subsidiary thereof) owns a
majority of the common stock or has the power to vote or direct the
voting of sufficient securities or ownership interests to elect a
majority of the directors or managers of the corporation or entity.
"Tax" means any federal, state, local, or foreign income,
withholding, employment, sales, use, excise or property tax,
including any interest, penalty, or addition thereto, whether
disputed or not.
"Tax Return" means any return, declaration, report, claim for
refund, or information return or statement relating to Taxes,
including any schedule or attachment thereto, and including any
amendment thereof.
"Tenant Estoppel Certificate" has the meaning set forth in Section 5(i)
below.
"Third Party Claim" has the meaning set forth in Section 8(d) below.
"Units" has the meaning set forth in the preamble above.
(b) Usage. Unless the context requires otherwise, (i) any
reference to any federal, state, local, or foreign statute or law
shall be deemed also to refer to all rules and regulations
promulgated thereunder, (ii) terms importing one gender shall
include any gender, (iii) terms in the singular shall include the
plural and vice versa, and (iv) the word "including" and variations
thereof shall mean including without limitation.
2. PURCHASE AND SALE OF PURCHASED UNITS.
(a) Basic Transaction. Upon and subject to the terms and
conditions of this Agreement, Buyers jointly and severally agree to
purchase from Sellers, and Sellers agree to sell to Buyers, all of
the Purchased Units, for the Purchase Price set forth below. Buyers
shall determine between themselves the allocation of Purchased Units
to each Buyer.
(b) Purchase Price. Buyers jointly and severally agree to pay
to Sellers, as consideration for the sale of the Purchased Units
(the "Purchase Price"), the sum of (i) $91,000,000 and (ii) the net
amount (which may be less than zero) of the Price Adjustments. The
Purchase Price shall be allocated among Sellers in proportion to
their respective holdings of the Purchased Units, with one percent
(1%) going to Gateway and ninety-nine percent (99%) going to SLC.
"Price Adjustments" means the following:
(A) An upward Price Adjustment shall be made in an amount
equal to Civic Parking's cash and cash equivalents as of the
close of business on the Closing Date, and Civic Parking's
maintenance and capital reserves (to the extent not reflected
in cash and cash equivalents) as of the close of business on
the Closing Date, Buyers hereby expressly acknowledging that
Civic Parking intends to distribute some or all of its cash
and cash equivalents to Sellers prior to Closing;
(B) An upward Price Adjustment shall be made in the amount
of Civic Parking's receivables, net of any allowance for
doubtful accounts, as of the close of business on the Closing
Date, and a downward Price Adjustment shall be made in the
amount of Civic Parking's payables as of the close of business
on the Closing Date (after giving effect to any exclusions by
Buyers pursuant to Section 5(h) below);
(C) Rents and other monthly revenues, real estate taxes,
utilities and other closing adjustments customarily
apportioned in real estate transactions shall be pro rated and
allocated to Buyers or Sellers as upward or downward Price
Adjustments, as the case may be, in accordance with local real
estate practice, with the Closing Date to be allocated to
Sellers and reflected on the Closing Balance Sheet; and
(D) If the proposed Assignment, Assumption, and Second
Amendment to Lease Agreement by and among Crackers Too, Inc.,
Baretta, Inc. and Civic Parking reflected on Section 4(h) of the
Disclosure Schedule is entered into before the Closing, an
upward Price Adjustment shall be made in the amount of any
payments made by Civic Parking before the Closing, plus any
payables or other liabilities accrued by Civic Parking as of
the Closing, for "Additional Improvements" and related costs
(including leasing fees) in connection with the "Additional
Premises" as such terms are defined therein, provided, that
(i) Buyers' consent shall be required for any Price Adjustment
pursuant to this clause (D) resulting from "Additional
Improvements" which are not described in the October 30, 1996
draft of such proposed Assignment, Assumption, and Second
Amendment to Lease Agreement heretofore provided to Buyers,
and (ii) the maximum Price Adjustment pursuant to this clause
(D) shall be $185,000.
The Price Adjustments shall be determined to the extent possible
from a balance sheet (the "Closing Balance Sheet"), which shall be
prepared by Civic Parking's public accounting firm as of the close
of business on the Closing Date, in a manner consistent with past
practice, and delivered to the parties, together with a calculation
of the Price Adjustments and the net amount thereof, as promptly as
practicable after the Closing Date. To the extent any Price
Adjustment may not be determinable from the Closing Balance Sheet,
such items shall be calculated by Civic Parking's independent public
accountants on an annex to the Closing Balance Sheet, which shall be
deemed a part thereof for the purposes of this Agreement. The
Closing Balance Sheet, including any annex thereto, shall be
conclusive as to the Price Adjustments, unless any Party shall
object to the calculation of the amount of any Price Adjustment as
reflected on the Closing Balance Sheet by giving the other Parties
notice thereof, setting forth the basis for, and particulars of, the
objection, not later than five business days after its receipt of
the Closing Balance Sheet. If such a notice of objection is given,
the Parties shall attempt to resolve the objection among themselves
by mutual agreement; but if the Parties are unable to resolve the
objection within 30 days after the date such notice is given, the
objection shall be resolved by Sellers' and Buyers' respective
public accounting firms in such manner as they shall determine to be
appropriate and expeditious; and such resolution shall be conclusive
on all Parties.
(c) The Closing. The closing of the transactions contemplated
by this Agreement (the "Closing") shall take place at the offices of
Armstrong, Teasdale, Schlafly & ▇▇▇▇▇, counsel for Sellers, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
commencing at 9:00 a.m. local time not later than the earlier of:
(i) the third business day following the satisfaction or waiver of
all conditions to the obligations of the Parties to consummate the
transactions contemplated hereby (other than conditions with respect
to actions the respective Parties will take at the Closing itself)
or (ii) December 31, 1996, if all such conditions (referred to in
the preceding clause (i)) are satisfied or waived by such date; or
on such other date as Buyers and Sellers may mutually determine (the
"Closing Date"). The Parties shall use their best efforts to cause
the Closing to occur not later than 30 days after the execution of
this Agreement.
(d) Deliveries at the Closing; Payment of the Purchase Price.
At the Closing, (i) Sellers will deliver to Buyers the various
certificates, agreements and other documents referred to in Section 7(a)
below, (ii) Buyers will deliver to Sellers the various certificates,
agreements and other documents referred to in Section 7(b) below, (iii)
Sellers will assign and transfer to Buyers the Purchased Units,
including executing and delivering such assignments and other
transfer documents as may be necessary for such purpose in forms
reasonably acceptable to Buyers, (iv) Buyers will deliver to
Gateway, by one or more wire transfers as directed by Gateway, cash
equal to the sum of (A) $910,000 plus (B) an amount equal to one
percent of Sellers' independent public accountants' good faith
estimate of the Price Adjustments (but not less than zero), and (v)
Buyers will deliver to SLC, by one or more wire transfers as
directed by SLC, (1) cash equal to the sum of (A) $53,690,000 plus
(B) an amount equal to ninety-nine percent of Seller's independent
public accountants' good faith estimate of the Price Adjustments
(but not less than zero) and (2) its promissory note in the form of
Exhibit B hereto in the aggregate principal amount of $36,400,000
(the "Promissory Note") together with an irrevocable, non-
negotiable, nontransferable letter of credit in the form set forth
as Exhibit C hereto, issued in favor of SLC by a commercial bank
with at least $5 billion in assets selected by Buyers and reasonably
acceptable to SLC, serving as a guarantee of the Promissory Note. A
final settlement shall occur not later than the tenth business day
after the final determination of the Price Adjustments pursuant to
Section 2(b), at which Buyers shall pay to Sellers or Sellers shall refund
to Buyers, as the case may be, by one or more wire transfers or
cashier's checks as determined by the receiving Parties, the
difference between the Purchase Price as finally determined and the
amount thereof paid at the Closing.
3. REPRESENTATIONS AND WARRANTIES CONCERNING THE PARTIES.
(a) Representations and Warranties of Sellers. Each of Sellers
represents and warrants to Buyers that the following statements are
correct and complete with respect to itself and its assets and
liabilities as of the Effective Date and will be correct and
complete with respect to itself and its assets and liabilities as of
the Closing Date (as though made then and as though the Effective
Date were the Closing Date):
(i) Organization of Sellers. SLC is a manager-managed
limited liability company duly organized, validly existing and
in good standing under the laws of the State of Missouri.
Gateway is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Missouri.
(ii) Authorization of Transaction. This Agreement
constitutes the valid and legally binding obligation of each
Seller, enforceable in accordance with its terms and
conditions. Sellers have full power and authority, corporate
or otherwise, to execute and deliver this Agreement and,
subject to the required consents described in Section 7(b), to
perform their obligations hereunder. Except to the extent set
forth in Section 5(b), Sellers need not give any notice to, make any
filing with, or obtain any authorization, consent, or approval
of any government or governmental agency in order to
consummate the transactions contemplated by this Agreement.
(iii) Noncontravention. Subject to the required
consents described in Section 7(b) and the matters described in
Section 5(b), neither the execution and the delivery of this
Agreement nor the consummation of the transactions
contemplated hereby will violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental
agency, or court to which Sellers are subject, any provision
of SLC's operating agreement, or any provision of Gateway's
charter or bylaws.
(iv) Brokers' Fees. Sellers have no liability or obligation
to pay any fees or commissions to any broker, finder, or agent
with respect to the transactions contemplated by this
Agreement for which either Buyer could become liable or
obligated.
(v) Units. Each Seller owns the number of Units set forth
in Section 4(b) below. Sellers' Units constitute all outstanding
ownership interests in Civic Parking. Except as set forth in
the Operating Agreement or under the Securities Act and
applicable state securities laws, the Purchased Units will be
transferred to Buyers at the Closing free and clear of any
transfer restrictions, Security Interests, options, warrants,
purchase rights, contracts, commitments, equities, claims and
demands. Neither Seller is a party to any option, warrant,
purchase right or other contract or commitment other than this
Agreement that could require such Seller to sell, transfer, or
otherwise dispose of any of such Seller's Units or any other
interest in Civic Parking. Neither Seller is a party to any
voting trust, proxy, or other agreement or understanding of
any type with respect to the voting of any Units or ownership
of any of the Units except as set forth in this Agreement or
the Operating Agreement.
(b) Representations and Warranties of Buyers. Each of Buyers
represents and warrants to Sellers that the following statements are
correct and complete with respect to itself and its assets and
liabilities as of the Effective Date and will be correct and
complete with respect to itself and its assets and liabilities as of
the Closing Date (as though made then and as though the Effective
Date were the Closing Date):
(i) Organization of Buyers. Each Buyer is a corporation
duly organized, validly existing, and in good standing under
the laws of the State of Tennessee.
(ii) Authorization of Transaction. This Agreement
constitutes the valid and legally binding obligation of each
Buyer, enforceable in accordance with its terms and
conditions. Buyers have full power and authority, corporate
or otherwise, to execute and deliver this Agreement and to
perform their obligations hereunder. Buyers have the
financial capability to perform their obligations hereunder.
Except to the extent set forth in Section 5(b), Buyers need not give
any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions
contemplated by this Agreement.
(iii) Noncontravention. Subject to the matters
described in Section 5(b), neither the execution and the delivery of
this Agreement nor the consummation of the transactions
contemplated hereby will violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental
agency, or court to which Buyers are subject or any provision
of their respective charters or bylaws.
(iv) Brokers' Fees. Buyers have no liability or obligation
to pay any fees or commissions to any broker, finder, or agent
with respect to the transactions contemplated by this
Agreement for which either Seller could become liable or
obligated.
(v) Investment. Buyers are not acquiring the Purchased
Units with a view to or for sale in connection with any
distribution requiring registration thereof within the meaning
of the Securities Act.
(vi) Buyers Not Engaged in Certain Businesses. None of
Buyers or Buyers' Parent are engaged, directly or indirectly,
in the production, sale or distribution of alcohol or non-
alcohol malt beverages or other alcohol beverages.
4. REPRESENTATIONS AND WARRANTIES CONCERNING CIVIC PARKING.
Sellers represent and warrant to Buyers that the statements
contained in this Section 4 are correct and complete as of the Effective
Date and will be correct and complete as of the Closing Date (as
though made then and as though the Effective Date were the Closing
Date), except as set forth in the disclosure schedule delivered by
Sellers to Buyers on the date hereof and initialed by the Parties
(the "Disclosure Schedule"). The Disclosure Schedule will be
arranged in paragraphs corresponding to the lettered and numbered
paragraphs contained in this Section 4.
(a) Organization, Qualification, and Power. Civic Parking is a
member-managed limited liability company duly organized, validly
existing, and in good standing under the laws of the State of
Missouri. Civic Parking has full power and authority to carry on
the business in which it is engaged and to own and use the
properties owned and used by it. Section 4(a) of the Disclosure Schedule
lists the members and officers of Civic Parking.
(b) Capitalization. Civic Parking has 100 Units issued and
outstanding, of which 99 Units are owned of record by SLC and 1 Unit
is owned of record by Gateway. All issued and outstanding Units
have been duly authorized, and are validly issued, fully paid and
nonassessable. The Units are not represented by certificates.
There are no options, warrants, purchase rights, subscription
rights, conversion rights, exchange rights, or other contracts or
commitments that could require Civic Parking to issue or to sell,
transfer or otherwise dispose of any Units. There are no voting
trusts, proxies, or other agreements or understandings with respect
to the voting of the Units except as described in this Agreement or
in the Operating Agreement.
(c) Authorization of Transaction; Noncontravention. Except as
set forth in Section 5(b), Civic Parking does not need to give any notice
to, make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order for the
Parties to consummate the transactions contemplated by this
Agreement. Subject to the required consents described in Section 7(b) and
the matters described in Section 5(b), neither the execution and the
delivery of this Agreement nor the consummation of the transactions
contemplated hereby will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling,
charge, or other restriction of any government, governmental agency,
or court to which Civic Parking is subject or any provision of the
Operating Agreement or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or
require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which Civic Parking is a party
or by which it is bound or to which any of its assets is subject (or
result in the imposition of any Security Interest upon any of its
assets), except where the violation, conflict, breach, default,
acceleration, termination, modification, cancellation or failure to
give notice would not have a material adverse effect on the
business, financial condition, operations, results of operations, or
future prospects of Civic Parking.
(d) Brokers' Fees. Civic Parking has no liability or obligation
to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement.
(e) Legal Compliance. To Sellers' Knowledge, except as set
forth in Section 4(e) of the Disclosure Schedule Civic Parking has complied
with all applicable laws (including rules, regulations, codes,
plans, injunctions, judgments, orders, decrees, rulings, and charges
thereunder) of federal, state, local, and foreign governments (and
all agencies thereof), and no action, suit, proceeding, hearing,
investigation, charge, complaint, claim, demand, or notice has been
filed or commenced against any of them alleging any failure so to
comply, except where the failure to comply would not have a material
adverse effect on the business, financial condition, operations or
results of operations of Civic Parking.
(f) Tax Matters. Civic Parking has filed all Tax Returns that
it was required to file. All such Tax Returns were correct and
complete in all material respects. To Sellers' Knowledge, all Taxes
owed by Civic Parking (whether or not shown on any Tax Return) have
been paid, except for Taxes accrued but not yet payable, which are
properly reflected on Civic Parking's balance sheet. Civic Parking
is not currently the beneficiary of any extension of time within
which to file any Tax Return. No Tax Returns are currently the
subject of audit. Provided, however, that the foregoing
representations and warranties are not made as to St. Louis City
gross receipts tax returns with respect to Civic Parking's parking
operations, for which Central Parking System of St. Louis, Inc. has
responsibility by agreement.
(g) Real Property. Section 4(g) of the Disclosure Schedule lists and
describes briefly all real property that Civic Parking owns other
than Excluded Assets, all title insurance policies with respect to
such real property, and all exceptions scheduled on such title
insurance policies which relate to such real property. With respect
to each such parcel of real property, except as reflected on Section 4(g)
of the Disclosure Schedule and other matters which would not have a
material adverse effect on the financial condition of Civic Parking:
(i) There are no pending or, to Sellers' Knowledge,
threatened condemnation proceedings, lawsuits, or
administrative actions relating to such real property or other
matters affecting materially and adversely the current use,
occupancy, or value thereof; and
(ii) There are no outstanding contracts, options, agreements
or rights of first refusal to purchase such real property, or
any portion thereof or interest therein.
(h) Leases and Other Contracts. Section 4(h) of the Disclosure
Schedule lists (i) all currently effective leases of real property
to which Civic Parking is a party, (ii) all currently effective
leases of personal property to which Civic Parking is a party, and
(iii) all contracts or undertakings to which Civic Parking is a
party the performance of which will involve future consideration in
excess of $10,000; excluding, however, leases, easements, contracts
or undertakings relating to Excluded Assets or to Indebtedness which
will not survive the Closing.
(i) Other Assets. Section 4(i) of the Disclosure Schedule lists all
other material assets of Civic Parking other than Excluded Assets.
Civic Parking's assets (other than Excluded Assets) include all
items necessary or reasonably and routinely used in the operation of
Civic Parking's business, except the Excluded Assets and except for
assets owned by Buyers or their Affiliates or by Civic Parking's
Affiliates and used in Civic Parking's administrative, accounting
and financial operations. As of the completion of the Closing,
Civic Parking will own its assets free of Security Interests.
(j) Litigation. Section 4(j) of the Disclosure Schedule sets forth a
description of each pending or threatened action, suit, proceeding,
hearing, complaint or investigation of, in, or before any court or
quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction or before any arbitrator to which
Civic Parking is a party or is threatened to be made a party, except
where the resolution of such pending or threatened matter would not
have a material adverse effect on the financial condition of Civic
Parking. For purposes of this paragraph, "threatened" includes only
those instances where to Sellers' Knowledge a potential claimant or
party has a present intention to institute an action, suit,
proceeding, hearing, complaint or investigation.
(k) Employees. Civic Parking does not have and has never had
any employees. Civic Parking has never maintained or contributed or
been required to contribute to any employee pension plan or employee
welfare benefit plan.
(l) Guaranties. Civic Parking is not a guarantor of or
otherwise responsible for any liability or obligation of any other
Person which guaranty or responsibility will survive the Closing.
(m) Disclaimer of other Representations and Warranties. Except
as expressly set forth in Section 3 and this Section 4, Sellers make
no representation or warranty, express or implied, at law or in
equity, in respect of Civic Parking or any of its assets,
liabilities or operations, and any such other representations or
warranties are hereby expressly disclaimed. By way of example and
not limitation, Buyers acknowledge and agree that Sellers are making
no representation as to any financial memoranda or other financial
information previously delivered to Buyers or Buyers' Parent,
including without limitation the Financing Memorandums of Civic
Parking for Stadium Park West, Stadium Park East, ▇▇▇▇▇▇ East and
▇▇▇▇▇▇ West dated August 26, 1996, and Buyers hereby expressly
disclaim their reliance on any such memoranda or information.
(n) Environmental. Sellers have made available to Buyers any
and all written notices, reports or other written information in
Sellers' or Civic Parking's possession regarding the environmental
condition of Civic Parking's real or personal property.
(o) Subsidiaries. Civic Parking has no Subsidiaries.
(p) Subsequent Events. Since September 30, 1996 there has not
been any material adverse change in the financial condition of Civic
Parking. Without limiting the generality of the foregoing sentence,
since September 30, 1996 Civic Parking has not engaged in any
practice, taken any material action or entered into any material
transaction outside the Ordinary Course of Business except as
disclosed in this Agreement (including the Disclosure Schedule) or
as related to this Agreement and the transactions contemplated
hereby.
(q) Powers of Attorney. To Sellers' Knowledge, there are no
outstanding powers of attorney executed on behalf of Civic Parking.
(r) Excluded Assets. After the Closing, Civic Parking will have
no further liabilities or obligations arising out of Civic Parking's
prior ownership of the Excluded Assets except as set forth in the
Agreement Relating to Parking or as disclosed in the Disclosure
Schedule.
(s) Liabilities. After the Closing, Civic Parking will have no
liability or obligation to St. Louis National Baseball Club, Inc.,
Civic Center Corporation or Anheuser-▇▇▇▇▇ Companies, Inc. or their
respective Affiliates or assignees as a result of or arising under
the CCC Purchase Agreement, except as disclosed in the Disclosure
Schedule.
5. PRE-CLOSING COVENANTS.
The Parties covenant as follows with respect to the period
between the execution of this Agreement and the Closing:
(a) General. Each of the Parties will use its reasonable best
efforts to take all action and to do all things necessary, proper,
or advisable in order to consummate and make effective the
transactions contemplated by this Agreement (including satisfaction,
but not waiver, of the closing conditions set forth in Section 7 below).
(b) Notices and Consents. Sellers will give, or cause Civic
Parking to give, prior to Closing, any notices to third parties, and
will cause Civic Parking to use its reasonable best efforts to
obtain prior to Closing any third party consents, that may be
required in connection with the consummation and performance of this
Agreement. Without limiting the generality of the foregoing, each
of the Parties will file (and Sellers will cause Civic Parking to
file) any Notification and Report Forms and related material that it
may be required to file with the Federal Trade Commission and the
Antitrust Division of the United States Department of Justice under
the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, will use its reasonable best efforts to
obtain (and Sellers will cause Civic Parking to use its reasonable
best efforts to obtain) a waiver from the applicable waiting period,
and will make (and Sellers will cause Civic Parking to make) any
further filings pursuant thereto that may be necessary in connection
therewith.
(c) Operation of Civic Parking; Transfer of Excluded Assets and
Transfer or Satisfaction of Indebtedness. Prior to the Closing,
Sellers will not (i) cause or permit the Operating Agreement to be
amended, or (ii) cause or permit (to the extent within such Party's
control) the merger, consolidation or dissolution of Civic Parking,
or (iii) cause or permit any action which will require a member to
contribute additional capital to Civic Parking or which could
increase a member's liability or obligations to Civic Parking or (as
a member) to any third party, or (iv) cause or permit Civic Parking
to engage in any material practice, take any material action, or
enter into any material transaction outside the Ordinary Course of
Business; provided, however, that Sellers may take any action
contemplated by this Agreement, including the following actions:
(i) Sellers may distribute all or any part of Civic
Parking's cash or cash equivalents to Sellers;
(ii) Sellers and their Affiliates will enter into the
Agreement Relating to Parking;
(iii) Sellers will cause all current insurance coverages
of Civic Parking to be terminated effective no earlier than
the date and time of Closing;
(iv) Subject to obtaining all required consents, Sellers will
cause all Indebtedness of Civic Parking to be discharged or
released or to be assigned to or assumed by one or more of
Civic Parking's Affiliates not later than the Closing;
(v) Subject to obtaining all required consents, including
the consents of the holders of Indebtedness, Sellers will
cause Civic Parking to transfer to one or more of their
Affiliates, with or without consideration, not later than the
Closing, the assets and properties listed on Exhibit D hereto
or described in Section 5(h) below (the "Excluded Assets"), which
shall therefore not be owned by Civic Parking as of the
Closing; and
(vi) Subject to obtaining the shareholder and member consents
required by the Operating Agreement, Sellers will cause the
Operating Agreement to be amended to permit Sellers to sell
the Purchased Units to Buyers.
(d) Buyers' Due Diligence. During the Due Diligence Period,
Sellers will permit, and will cause Civic Parking to permit,
representatives of Buyers to have full access, at all reasonable
times, and in a manner so as not to interfere in any material
respect with the normal business operations of Civic Parking, to all
commercial leases, contracts, title insurance policies, real estate
surveys and environmental reports of or pertaining to Civic Parking
and its properties, and to make or have made in a reasonable manner
such real estate surveys and Phase I environmental studies as it may
deem advisable in its discretion; provided, however, that no such
survey or study shall involve the physical removal, destruction,
damage or alteration of any property without the express consent of
Sellers or Civic Parking, and Buyers shall at Buyers' cost and
expense repair, replace or restore any property removed, destroyed,
damaged or altered in the course of any such survey or study and
shall indemnify Sellers and their Affiliates against any claims
(including but not limited to surveyors' or mechanics' liens)
arising from any such survey or study; and provided further, that no
information shall be required to be furnished pertaining to the
Excluded Assets or to Indebtedness which will not survive the
Closing, except to the extent necessary for Buyers to satisfy
themselves that the conditions to Buyers' obligation to close set
forth in Section 7(a) below shall be satisfied by Closing. The results of
Buyers' investigations described in this Section 5(d) shall be a condition
to Buyers' obligations hereunder only to the extent set forth in
Section 7(a)(vii) below, and shall not give Buyers any right to damages
against Sellers or their Affiliates.
(e) Confidentiality. Buyers shall hold in strict confidence any
Confidential Information (including, without limitation, the terms
of this Agreement and the CCC Purchase Agreement) it has received or
may receive in the course of the negotiation or performance of this
Agreement, in the course of its due diligence investigations or
otherwise, and Buyers shall not use any Confidential Information
except in connection with this Agreement or as may be necessary in
connection with the operations of Civic Parking or Buyers; provided,
however, that Buyers may disclose any Confidential Information to
their own or Buyers' Parent's directors, officers, employees,
partners, consultants or agents who need to know such Confidential
Information for the purpose of evaluating the transaction (it being
understood and agreed that Buyers shall inform the own and Buyers'
Parent's directors, officers, employees, partners, consultants and
agents of the confidential nature of such information and shall
cause them to treat such information confidentially). If this
Agreement is terminated for any reason whatsoever, Buyers shall
return to Civic Parking, Sellers and their Affiliates, as the case
may be, all tangible embodiments (and all copies) of the
Confidential Information which are in its possession, except copies
of this Agreement retained for archive purposes.
(f) Notice of Developments. Each Party will give prompt written
notice to the others of any development causing a material breach of
any of its own representations and warranties in Section 3 above. Sellers
will give prompt written notice to Buyers of any development causing
a material breach of any of the representations and warranties in Section 4
above. Unless a Party has the right to terminate this Agreement
pursuant to Section 9 below by reason of the development and exercises that
right within the period referred to in Section 9 below, any such written
notice pursuant to this Section 5(f) will be deemed to have amended the
Disclosure Schedule and to have cured any misrepresentation or
breach of warranty that otherwise might have existed hereunder by
reason of the development.
(g) Exclusivity. Neither of the Sellers will (and the Sellers
will not cause or permit Civic Parking to) solicit, initiate, or
encourage the submission of any proposal or offer from any Person
relating to the acquisition of all or substantially all of the
interests or assets of Civic Parking (including any acquisition
structured as a merger, consolidation, or share exchange); provided,
however, that Sellers, Civic Parking and their respective directors,
managers or officers will remain free to participate in any
discussions or negotiations regarding, furnish any information with
respect to, assist or participate in, or facilitate in any other
manner any effort or attempt by any Person to do or seek any of the
foregoing to the extent their fiduciary duties may require.
(h) Receivables and Payables. Sellers have provided to Buyers,
and shall provide to Buyers at least 5 days prior to the Closing
Date a list of Civic Parking's receivables and payables, in each
case as of the most recent practicable date, and shall update such
list at the Closing as of the date prior to the Closing Date. At or
before the Closing, Buyers may elect to exclude such of Civic
Parking's receivables (together with any corresponding reserve for
doubtful accounts) and payables as Buyers may not wish to have on
the Closing Balance Sheet, provided that (i) receivables from Buyers
or their Affiliates or parking customers may not be excluded, and
(ii) Sellers' consent shall be required to exclude any receivables
which Buyers do not, in their sole discretion exercised in good
faith, deem doubtful as to collectibility. Any receivables (and
corresponding reserves for doubtful accounts) and payables excluded
by Buyers pursuant to this Section 5(h) shall thereupon be deemed Excluded
Assets.
(i) Estoppel Certificates. Sellers will cause Civic Parking to
request each of Civic Parking's tenants to execute an estoppel
certificate substantially in the form set forth as Exhibit G
attached hereto ("Tenant Estoppel Certificate"), and to return such
Tenant Estoppel Certificates executed by such tenants prior to the
Closing.
(j) Tangible Personal Property. Representatives of Sellers and
Buyers will mutually prepare a list or other satisfactory
description of all material tangible personal property to be owned
by Civic Parking at the Closing (which shall be subject to changes
in the ordinary course of business between the date of such list or
description and the Closing).
(k) Lease Disputes. Sellers will cause Civic Parking to provide
to Buyers if, when and as received, copies of all correspondence
received by Civic Parking before the Closing with respect to the
claim by T.G.I. Friday's described in Section 4(j) of the Disclosure
Schedule.
(l) Listing Agreement. Sellers shall cause the existing listing
agreement between ▇▇▇▇▇▇▇ Properties, Oncor International and Civic
Parking, described in Section 4(h) of the Disclosure Schedule, to be
terminated effective not later than the Closing Date.
6. POST-CLOSING COVENANTS.
The Parties covenant as follows with respect to the period
following the Closing:
(a) General. If at any time after the Closing any further
action is necessary to carry out the purposes of this Agreement,
each of the Parties will take such further action (including the
execution and delivery of such further instruments and documents) as
any other Party reasonably may request, all at the cost and expense
of the requesting Party. Sellers acknowledge and agree that from
and after the Closing Buyers will be entitled to possession of all
documents, books, records (including tax records), agreements, and
financial data of any sort relating to Civic Parking other than
those related solely to the Excluded Assets or to Indebtedness of
Civic Parking which will not survive the Closing.
(b) Litigation Support. If and for so long as any Party
actively is contesting or defending against any action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or
demand in connection with (i) any transaction contemplated under
this Agreement, (ii) any litigation or other matter disclosed in
Section 4(j) of the Disclosure Schedule, or (iii) any fact, situation,
circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction
on or prior to the Closing Date involving Civic Parking, each of the
other Parties will cooperate with the contesting or defending Party
and its counsel in the contest or defense, make available their
personnel, and provide such testimony and access to their books and
records as shall be necessary in connection with the contest or
defense, all at the cost and expense of the contesting or defending
Party.
(c) Transition. Sellers will take no action that is designed or
intended to have the effect of discouraging any customer or business
associate of Civic Parking from maintaining the same business
relationships with Civic Parking after the Closing as it maintained
with Civic Parking prior to the Closing, other than normal price
competition or advertising in the course of the parking business of
Sellers or their Affiliates or as contemplated in any other
agreement between the Parties.
(d) Tax Matters. The following provisions shall govern the
allocation of responsibility as between Buyers and Sellers following
the Closing Date for certain Tax matters:
(i) Tax Periods Ending on or Before the Closing Date.
Seller shall prepare or cause to be prepared and file or cause
to be filed all Tax Returns for Civic Parking for all periods
ending on or prior to the Closing Date which are filed after
the Closing Date. All such Tax Returns shall be presented to
Buyers at least 30 days prior to filing for Buyers' review and
approval, which shall not be unreasonably withheld. Buyers
acknowledge that Sellers' allocation of tax basis to Civic
Parking's assets is pursuant to the CCC Purchase Agreement.
(ii) Cooperation on Tax Matters. Buyers, Civic Parking and
Sellers shall cooperate fully, as and to the extent reasonably
requested by the other party, in connection with the filing of
Tax Returns pursuant to this Section and any audit, litigation
or other proceeding with respect to Taxes. Such cooperation
shall include the retention and (upon the other party's
request) the provision of records and information which are
reasonably relevant to any such audit, litigation or other
proceeding and making employees available on a mutually
convenient basis to provide additional information and
explanation of any material provided hereunder, and Buyers'
acceptance at the Closing of the tax basis of Civic Parking's
assets established pursuant to the CCC Purchase Agreement.
(e) Agreement Relating to Parking. Buyers shall cause Civic
Parking and its successors to comply in all respects with the
Agreement Relating to Parking, and Buyers and Civic Parking shall
require any operator or successor owner of the "Garage Properties"
as defined in the Agreement Relating to Parking to enter into an
express written agreement to be bound by the restrictive covenants
set forth in the Agreement Relating to Parking so long as the
Agreement Relating to Parking shall remain in effect.
(f) Radio Units. Buyers shall reimburse, or cause Civic Parking
to reimburse, Sellers or their designee, from time to time on
demand, for a pro rata portion of the costs and expenses incurred by
Sellers or their Affiliates related to the 19 radio units currently
owned by Civic Parking and being used by Central Parking System of
St. Louis, Inc., including charges under maintenance and trunking
system contracts. Such reimbursement covenant shall continue
indefinitely until terminated (i) upon written request from Buyers
or Civic Parking that Sellers terminate any then-existing contracts
or other obligations of Sellers or their Affiliates to third parties
with respect to such radio units, and the effective termination of
such contracts or obligations upon terms satisfactory to Sellers, or
(ii) upon the termination of such contracts or obligations by
Sellers or their Affiliates for any reason, Buyers hereby
acknowledging and agreeing that such contracts also cover other
radio units owned by Sellers or their Affiliates, that Sellers or
their Affiliates may continue or terminate any or all of such
contracts in whole or in part in Sellers' or such Affiliates' sole
discretion, and that upon the termination of such contracts Buyers
shall have the sole responsibility for obtaining substitute
maintenance, trunking system or other services at Buyers' sole cost
and expense.
(g) Certain Claims. In addition to any obligations which may
arise pursuant to Section 8 below, Sellers shall pay or reimburse
Civic Parking or its Affiliates, on demand, for any legal fees or
expenses (including attorneys' fees), incurred by Civic Parking or
its Affiliates in connection with the lease to T.G.I. Friday's
described in Section 4(h)(i) of the Disclosure Schedule, if any claim or
defense is raised by the tenant based on its allegations of a
noncompetition agreement as described in Item 1 of Section 4(j) of the
Disclosure Schedule, subject to an aggregate maximum payment or
reimbursement by Sellers under this paragraph of $25,000.
7. CONDITIONS TO OBLIGATIONS TO CLOSE.
(a) Conditions to Obligation of Buyers. The obligation of
Buyers to consummate the transactions to be performed by them in
connection with the Closing is subject to satisfaction of the
following conditions:
(i) The representations and warranties set forth in Section 3(a)
and Section 4 above shall be true and correct in all material
respects at and as of the Closing Date;
(ii) Sellers shall have performed and complied with all of
their covenants hereunder in all material respects through the
Closing;
(iii) Sellers and/or Civic Parking shall have received
all material consents specified in Section 7(b) below;
(iv) Civic Parking shall have no Indebtedness or Security
Obligations, and no liabilities related to its prior ownership
of the Excluded Assets;
(v) Sellers shall have delivered to Buyers a certificate to
the effect that each of the conditions specified above in
Section 7(a)(i)-(iv) is satisfied in all respects;
(vi) No action, suit, or proceeding not disclosed in Section
4(j) of the Disclosure Schedule shall be pending before any court or
quasi-judicial or administrative agency of any federal, state
or local jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling, or
charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement, (B) cause any of
the transactions contemplated by this Agreement to be
rescinded following consummation, (C) affect adversely the
right of Buyers to own the Purchased Units and to control
Civic Parking, or (D) affect materially and adversely the
right of Civic Parking to own its assets and to operate its
businesses; and no such injunction, judgment, order, decree,
ruling, or charge shall be in effect;
(vii) Buyers shall have obtained title insurance
commitments on the real estate described in Section 4(g) of the
Disclosure Schedule in such amount, not exceeding the Purchase
Price, and subject to only such exceptions as Buyers shall
reasonably deem acceptable; provided, however, that: (A) any
exceptions set forth in the title insurance policy described
in Section 4(g) of the Disclosure Schedule other than with respect to
Security Interests are hereby agreed to be acceptable to
Buyers, (B) Sellers may cause any such exceptions to be
removed at or before Closing, in which event they shall be
deemed acceptable to Buyers, and (C) if Buyers shall fail to
notify Sellers of its inability to obtain such commitments or
of any unacceptable exceptions within 7 days after the
Effective Date, then this contingency shall be deemed waived;
and as to any additional exceptions, if any, which may be
first set forth on an amended commitment issued between the
original commitment date and the Closing, if Buyers shall fail
to notify Sellers that such additional exceptions are
unacceptable within 7 days after receipt of such amended
commitment by either Buyer or by Buyers' Parent, then this
contingency shall be deemed waived as to such additional
exceptions;
(viii) All applicable waiting periods (and any extensions
thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act with respect to the
transactions contemplated by this Agreement shall have expired
or otherwise been terminated;
(ix) All parties thereto other than Buyers and their
Affiliates shall have entered into a management agreement for
the Bus Lot substantially as set forth in Exhibit F attached
hereto and the same shall be in full force and effect; and the
existing management agreements between Civic Parking and
Central Parking System of St. Louis, Inc. shall have been
terminated with respect to the Bus Lot;
(x) Buyers shall have received the resignations, effective
as of the Closing, of each officer of Civic Parking;
(xi) There shall have been no casualty loss, damage or
destruction to Civic Parking's assets since the Effective
Date; provided, however, that in the event any such loss,
damage or destruction is covered by insurance Sellers may
satisfy this contingency by causing the insurance proceeds
from such loss, damage or destruction to be assigned to Buyers
and/or by providing such other or additional security for the
full replacement, repair or reconstruction of the assets as
may reasonably be required by Buyers;
(xii) Buyers shall have received an estoppel certificate
from Sellers substantially in the form of Exhibit H attached
hereto ("Sellers' Estoppel Certificate"), dated the Closing
Date, with respect to each tenant from whom a Tenant Estoppel
Certificate has not been received by Buyers as of the Closing;
and
(xiii) All actions to be taken by Sellers in connection
with consummation of the transactions contemplated hereby and
all certificates, instruments, and other documents required to
effect the transactions contemplated hereby will be reasonably
satisfactory in form and substance to Buyers.
Buyers may waive any condition specified in this Section 7(a) by executing
a writing so stating at or prior to the Closing.
(b) Conditions to Obligations of Sellers. The obligations of
Sellers to consummate the transactions to be performed by them in
connection with the Closing are subject to satisfaction of the
following conditions:
(i) The representations and warranties set forth in Section 3(b)
above shall be true and correct in all material respects at
and as of the Closing Date;
(ii) Buyers shall have performed and complied with all of
their covenants hereunder in all material respects through the
Closing;
(iii) Buyers shall have delivered to Sellers a
certificate to the effect that each of the conditions
specified above in Section 7(b)(i)-(ii) is satisfied in all respects;
(iv) No action, suit, or proceeding not disclosed in Section 4(j)
of the Disclosure Schedule shall be pending before any court or
quasi-judicial or administrative agency of any federal, state,
local, or foreign jurisdiction or before any arbitrator
wherein an unfavorable injunction, judgment, order, decree,
ruling, or charge would (A) prevent consummation of any of the
transactions contemplated by this Agreement or (B) cause any
of the transactions contemplated by this Agreement to be
rescinded following consummation; and no such injunction,
judgment, order, decree, ruling, or charge shall be in effect;
(v) Sellers and Civic Parking shall have received all
material third party consents, releases and amendments
required to consummate the transactions contemplated by this
Agreement, including without limitation (A) the consents of
the Office of the Commissioner of Baseball, the Commissioner
of Baseball, the National League of Professional Baseball
Clubs, the National League President and/or the Ownership
Committee of Baseball required by Section 13.1 of the
Operating Agreement and corresponding provisions of Sellers'
and their Affiliates' corporate and company documents, (B) the
consents of the holders of Indebtedness and Security
Obligations to the transactions contemplated by this
Agreement, including without limitation the transfer of the
Excluded Assets and the Units, (C) the discharge or release of
Civic Parking's Indebtedness and Security Obligations, or the
assignment thereof to or assumption by an Affiliate of Civic
Parking, and execution by the holders of Civic Parking's
Indebtedness or Security Obligations of all agreements or
amendments necessary to effect the foregoing (subject, in the
case of Indebtedness and Security Obligations to The Boatmen's
National Bank of St. Louis, to the payment in full of such
Indebtedness out of the Purchase Price), and (D) any consents
to any of such transactions required to be given by the
holders of Indebtedness or Security Obligations of Civic
Parking's Affiliates under agreements or Security Obligations
applicable to Civic Parking or such Affiliates and the
execution of such holders of Indebtedness of such Affiliates
of all agreements or amendments and Security Interests
necessary to effect the foregoing;
(vi) Sellers' members or shareholders, as the case may be,
shall have given all required consents to Civic Parking's
transfer of the Excluded Assets to another Person and to
Sellers' amendment of Article IX of the Operating Agreement to
permit Sellers' sale of the Purchased Units;
(vii) Sellers shall have obtained a title insurance
commitment for the Bus Lot and the "Marriott/▇▇▇▇ ▇▇▇▇▇"
property (as described on Exhibit D) in such amount, not
exceeding the cost basis allocated thereto on Civic Parking's
books, and subject to only such exceptions as Sellers shall
reasonably deem acceptable; provided, however, that: (A) any
exceptions set forth in the title insurance policy described
in Section 4(g) of the Disclosure Schedule, or which shall have been
permitted or created as a result of any acts or omissions by
Sellers or Civic Parking or their Affiliates, are hereby
agreed to be acceptable to Sellers, and (B) if Sellers shall
fail to notify Buyers of their inability to obtain such
commitment or of any unacceptable exceptions within 7 days
after the Effective Date, then this contingency shall be
deemed waived;
(viii) All applicable waiting periods (and any extensions
thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act with respect to the
transactions contemplated by this Agreement shall have expired
or otherwise been terminated;
(ix) All parties thereto other than Sellers and their
Affiliates shall have entered into a management agreement for
the Bus Lot substantially as set forth in Exhibit F attached
hereto and the same shall be in full force and effect; and the
existing management agreement between Civic Parking and
Central Parking System of St. Louis, Inc. shall have been
terminated with respect to the Bus Lot;
(x) The Promissory Note shall have been guaranteed by
Buyers' Parent as set forth therein; and
(xi) The letter of credit substantially in the form attached
as Exhibit C shall have been issued; and
(xii) All actions to be taken by Buyers and Buyers'
Parent in connection with consummation of the transactions
contemplated hereby and all certificates, instruments, and
other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form
and substance to Sellers.
Sellers may waive any condition specified in this Section 7(b) by executing
a writing so stating at or prior to the Closing.
8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND
INDEMNIFICATION PROVISIONS.
(a) Survival of Representations and Warranties. All of the
representations and warranties of the Parties contained in Section 3 above
and in Section 4(r) and Section 4(s) above shall survive the Closing (unless
the damaged Party knew or had reason to know of any misrepresentation or
breach of warranty at the time of Closing) and continue in full
force and effect forever thereafter, subject to applicable statutes
of limitations. All of the representations and warranties of
Sellers contained in Section 4 above (other than in Section 4(r) and Section
4(s) above) and all of the representations, certifications, covenants and
agreements of Sellers contained in any Sellers' Estoppel Certificate
shall survive the Closing (unless Buyers knew or had reason to know
of any misrepresentation or breach of warranty at the time of
Closing) and continue in full force and effect for a period of six
(6) months following Closing.
(b) Indemnification Provisions for Benefit of Buyers. In the
event either Seller breaches any of its representations, warranties
and covenants contained herein or in any Sellers' Estoppel
Certificate, provided that Buyers make a written claim for
indemnification against any of the Sellers pursuant to Section 10(g) below,
and provided further that such written claim is made within any
applicable survival period set forth in Section 8(a) above; then Sellers
jointly and severally agree to indemnify Buyers from and against any
Adverse Consequences Buyers shall suffer through and after the date
of the claim for indemnification (but excluding any Adverse
Consequences Buyers shall suffer after the end of any applicable
survival period) caused by the breach; provided further, however,
that except as set forth in the following sentence, Sellers shall
have no obligation to indemnify Buyers from and against any Adverse
Consequences caused by a breach of any representation or warranty or
covenant of Sellers contained in Section 4 above or by a breach of any of
the representations, certifications, covenants and agreements of
Sellers contained in any Sellers' Estoppel Certificate, (A) until
Buyers have suffered Adverse Consequences by reason of all such
breaches in excess of a $10,000 aggregate deductible (after which
point Sellers will be obligated only to indemnify Buyers from and
against further such Adverse Consequences), or thereafter (B) to the
extent the Adverse Consequences Buyers have suffered by reason of
all such breaches exceeds a $500,000 aggregate ceiling (after which
point Sellers will have no obligation to indemnify Buyers from and
against further such Adverse Consequences). The limitations on
Sellers' obligations set forth in clauses (A) and (B) of the
preceding sentence shall not apply to any Adverse Consequences to
Buyers arising out of the Promissory Note in the principal amount of
$2,500,000 listed in Section 4(h) of the Disclosure Schedule.
(c) Indemnification Provisions for Benefit of Sellers. In the
event either Buyer breaches any of its representations, warranties
and covenants contained herein, and provided that Sellers make a
written claim for indemnification against Buyers pursuant to Section 10(g)
below, then Buyers jointly and severally agree to indemnify Sellers
from and against any Adverse Consequences Sellers shall suffer
through and after the date of the claim for indemnification caused
by the breach.
(d) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third
Party Claim") which may give rise to a claim for
indemnification against any other Party (the "Indemnifying
Party") under this Section 8, then the Indemnified Party shall
promptly (and in any event within five (5) business days after
receiving notice of the Third Party Claim) notify each
Indemnifying Party thereof pursuant to Section 10(g) below.
(ii) Any Indemnifying Party will have the right at any time
to assume and thereafter conduct the defense of the Third
Party Claim with counsel of its choice reasonably satisfactory
to the Indemnified Party; provided, however, that the
Indemnifying Party will not consent to the entry of any
judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of the
Indemnified Party (not to be withheld unreasonably) unless the
judgment or proposed settlement involves only the payment of
money damages and does not impose an injunction or other
equitable relief upon the Indemnified Party.
(iii) Unless and until an Indemnifying Party assumes the
defense of the Third Party Claim as provided in Section 8(d)(ii)
above, however, the Indemnified Party may defend against the
Third Party Claim in any manner it reasonably may deem
appropriate.
(iv) In no event will the Indemnified Party consent to the
entry of any judgment or enter into any settlement with
respect to the Third Party Claim without the prior written
consent of each of the Indemnifying Parties (not to be
withheld unreasonably).
(e) Other Indemnification Provisions. The indemnification
provisions in this Section 8 are in addition to, and not in derogation of,
any statutory, equitable, or common law remedy any Party may have
for breach of representation, warranty, or covenant; provided,
however, that Buyers acknowledge and agree that the foregoing
indemnification provisions in this Section 8 shall be the exclusive remedy
of Buyers for any breach of the representations and warranties in Section 4
above.
9. TERMINATION.
(a) Termination of Agreement. The respective Parties may
terminate this Agreement as provided below:
(i) Buyers and Sellers may terminate this Agreement by
mutual written consent at any time prior to the Closing;
(ii) Buyers may terminate this Agreement by giving written
notice to Sellers at any time prior to the Closing if (A)
Sellers have within the then previous 10 days given Buyers
notice of a development causing a material breach of any of
Sellers' representations and warranties in Section 3(a) or Section 4 above
or (B) Sellers have breached any material representation,
warranty, or covenant contained in this Agreement in any
material respect and Buyers have notified Sellers of the
breach within 10 days after Buyers first learned of the
breach, and in either case the breach has continued without
cure for a period of 30 days after the notice of breach (and
the Closing Date shall be postponed if and to the extent
necessary to permit such cure prior to the Closing Date);
(iii) Buyers may terminate this Agreement by giving
written notice to Sellers if the results of Buyers'
investigations conducted during the Due Diligence Period shall
be unsatisfactory to Buyers in their sole discretion;
provided, however, that (1) Buyers shall have first given
Sellers notice of any such results which are unsatisfactory to
Buyers within 7 days after Buyers first learn of such
information or within 7 days after the end of the Due
Diligence Period, whichever first occurs, and (2) Sellers
shall have failed to cure or otherwise remedy such
unsatisfactory results to Buyers' satisfaction within 60 days
thereafter (and the Closing Date shall be correspondingly
postponed, at Sellers' option, to the extent necessary to
permit such cure or remedy); and if Buyers fail to so notify
Sellers or if Sellers shall so cure or otherwise remedy such
unsatisfactory results, then Buyers may not terminate this
Agreement on the basis of such unsatisfactory results;
(iv) Buyers may terminate this Agreement by giving written
notice to Sellers if the Closing shall not have occurred on or
before December 17, 1996 (or as extended as provided in this
Section 9(a)) by reason of the failure of any condition precedent
under Section 7(a) hereof (unless the failure results primarily from
Buyers' breach of any representation, warranty, or covenant
contained in this Agreement); provided that if the Closing
shall not have occurred by December 17, 1996 solely because of
the pendency of the waiting period required under the ▇▇▇▇-
▇▇▇▇▇-▇▇▇▇▇▇ Act, then the date first set forth in this clause
(iv) shall be changed to December 31, 1996;
(v) Sellers may terminate this Agreement by giving written
notice to Buyers at any time prior to the Closing if (A)
Buyers have within the then previous 10 days given Sellers
notice of a development causing a material breach of any of
Buyers' representations and warranties in Section 3(b) above or (B)
Buyers have breached any material representation, warranty, or
covenant contained in this Agreement in any material respect
and either of Sellers has notified Buyers of the breach within
10 days after either of Sellers first learned of the breach,
and in either case the breach has continued without cure for a
period of 30 days after the notice of breach (and the Closing
Date shall be postponed if and to the extent necessary to
permit such cure prior to the Closing Date); or
(vi) Sellers may terminate this Agreement by giving written
notice to Buyers if the Closing shall not have occurred on or
before December 17, 1996 (or as extended as provided in this
Section 9(a)) by reason of the failure of any condition precedent
under Section 7(b) hereof (unless the failure results primarily from
either Seller's breach of any representation, warranty, or
covenant contained in this Agreement); provided that if the
Closing shall not have occurred by December 17, 1996 solely
because of the pendency of the waiting period required under
the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, then the date first set forth in
this clause (vi) shall be changed to December 31, 1996;
(b) Effect of Termination. If this Agreement is terminated
pursuant to Section 9(a) above, all rights and obligations of the Parties
hereunder shall terminate without any liability of any Party to any
other Party (except for any liability of any Party then in breach);
provided, however, that the confidentiality provisions contained in
Section 5(e) above and the provisions of Section 10 below shall survive
termination.
10. MISCELLANEOUS.
(a) Press Releases and Public Announcements. No Party shall
issue any press release or make any public announcement relating to
the subject matter of this Agreement without the prior written
approval of the other Parties; provided, however, that (i) the
Parties agree at a minimum to make an appropriate mutually
acceptable public announcement of the completion of the Closing, and
(ii) Buyers' Parent may make any public disclosure it believes in
good faith is required by applicable law or any listing or trading
agreement concerning its publicly-traded securities (in which case
Buyers will advise and consult with the other Parties prior to
making the disclosure).
(b) No Third-Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any Person other than the Parties
and their respective successors and permitted assigns.
(c) Entire Agreement. This Agreement (including the Exhibits
and Schedules hereto) constitutes the entire agreement among the
Parties with respect to the subject matter hereof, and supersede any
prior understandings, agreements, or representations by or among the
Parties, written or oral, with respect to the subject matter hereof.
(d) Succession and Assignment. This Agreement shall be binding
upon and inure to the benefit of the Parties named herein and their
respective successors and permitted assigns. No Party may assign
this Agreement or any of its rights, interests, or obligations
hereunder without the prior written approval of the other Parties.
(e) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original but all of
which together will constitute one and the same instrument.
(f) Headings. The section and paragraph headings contained in
this Agreement are inserted for convenience only and shall not
affect in any way the meaning or interpretation of this Agreement.
(g) Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request,
demand, claim, or other communication hereunder shall be deemed duly
given if (and then two business days after) it is sent by registered
or certified mail, return receipt requested, postage prepaid, and
addressed to the intended recipient as set forth below:
If to one or both Sellers: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
SLC Holdings, L.L.C.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Chairman
SLC Holdings, L.L.C.
c/o ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
and with a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Armstrong, Teasdale, Schlafly & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to one or both Buyers: Monroe J. Carell, Jr.
Central Parking System Realty, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set
forth above using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary
mail, or electronic mail), but no such notice, request, demand,
claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended
recipient. However, any notice, disclosure or other information
provided in this Agreement or any related document to be given or
received shall be deemed given or received by both Sellers if given
or received by either Seller, and given or received by both Buyers
if given or received by either Buyer (or by Buyers' Parent at the
specified address). Any Party may change the address to which
notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other Parties notice in
the manner herein set forth.
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of
Missouri without giving effect to any choice or conflict of law
provision or rule (whether of the State of Missouri or any other
jurisdiction) that would cause the application of the substantive
laws of any jurisdiction other than the State of Missouri.
(i) Amendments and Waivers. No amendment of any provision of
this Agreement shall be valid unless the same shall be in writing
and signed by Buyers and Sellers. No waiver by any Party of any
default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to
any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence.
(j) Severability. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the remaining
terms and provisions hereof or the validity or enforceability of the
offending term or provision in any other situation or in any other
jurisdiction.
(k) Expenses. Each Party will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby; except that
Sellers will reimburse Buyers at Closing for 50% of the ▇▇▇▇-▇▇▇▇▇-
▇▇▇▇▇▇ Act filing fees payable by Buyers. Sellers will bear the
pre-Closing costs and expenses of Civic Parking, including those in
connection with transfers of Excluded Assets, consents of lenders,
discharge or release or assignment of Indebtedness and Security
Obligations, and amendments to the Operating Agreement.
(l) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the Parties
and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement.
(m) Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof.
IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement as of the date first above written.
Sellers: GATEWAY GROUP, INC.
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Chairman of the Board and
Chief Executive Officer
SLC HOLDINGS, L.L.C.
By:/s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Manager
Buyers: CENTRAL PARKING SYSTEM REALTY, INC.
By:/s/Monroe J. Carell, Jr.
Monroe J. Carell, Jr.
Chairman
CENTRAL PARKING SYSTEM REALTY
OF MISSOURI, INC.
By:/s/Monroe J. Carell, Jr.
Monroe J. Carell, Jr.
Chairman
LIST OF EXHIBITS
Exhibit A: Amended and Restated Operating Agreement of Civic
Parking, dated effective February 12, 1996, as amended
Exhibit B: Promissory Note
Exhibit C: Letter of Credit
Exhibit D: Excluded Assets
Exhibit E: Agreement Relating to Parking
Exhibit F: Bus Lot Management Agreement
Exhibit G: Tenant Estoppel Certificate
Exhibit H: Sellers' Estoppel Certificate