_____________________
| OMB APPROVAL |
|_____________________|
|OMB NUMBER: 3235-0145|
|EXPIRES: |
SECURITIES AND EXCHANGE COMMISSION | AUGUST 31, 1999|
Washington, D.C. 20549 |ESTIMATED AVERAGE |
|BURDEN HOURS |
|PER RESPONSE ...14.90|
|_____________________|
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
Central Parking Corporation
--------------------------------------------------------
(Name of Issuer)
Common Stock, $0.01 par value
--------------------------------------------------------
(Title of Class and Securities)
154785 10 9
--------------------------------------------------------
(CUSIP Number)
James J. Finnegan, Esq.
AEW Capital Management, L.P.
225 Franklin Street
Boston, Massachusetts 02110
(617) 261-9000
--------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
March 19, 1999
--------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g),
check the following box. [ ]
Note: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Rule 13d-7(b)
for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of
the Act (however, see the Notes).
SCHEDULE 13D
CUSIP No. 154785 10 9
___________________________________________________________________
1. NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
AEW Partners, L.P.
___________________________________________________________________
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (X)
___________________________________________________________________
3. SEC USE ONLY
___________________________________________________________________
4. SOURCE OF FUNDS*
OO
___________________________________________________________________
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
___________________________________________________________________
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
___________________________________________________________________
7. SOLE VOTING POWER
NUMBER OF 3,346,627
SHARES _____________________________________
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 0
EACH _____________________________________
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 3,346,627
WITH _____________________________________
10. SHARED DISPOSITIVE POWER
0
___________________________________________________________________
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,346,627
___________________________________________________________________
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES ( )
___________________________________________________________________
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
9.2%
___________________________________________________________________
14. TYPE OF REPORTING PERSON
PN
___________________________________________________________________
SCHEDULE 13D
CUSIP No. 154785 10 9
___________________________________________________________________
1. NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
AEW/L.P.
___________________________________________________________________
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (x)
___________________________________________________________________
3. SEC USE ONLY
___________________________________________________________________
4. SOURCE OF FUNDS*
OO
___________________________________________________________________
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
___________________________________________________________________
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
___________________________________________________________________
7. SOLE VOTING POWER
NUMBER OF 3,346,627
SHARES _____________________________________
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 0
EACH _____________________________________
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 3,346,627
WITH _____________________________________
10. SHARED DISPOSITIVE POWER
0
___________________________________________________________________
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,346,627
___________________________________________________________________
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES ( )
___________________________________________________________________
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
9.2%
___________________________________________________________________
14. TYPE OF REPORTING PERSON
PN
___________________________________________________________________
SCHEDULE 13D
CUSIP No. 154785 10 9
___________________________________________________________________
1. NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
AEW, Inc.
___________________________________________________________________
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP:
(a) ( )
(b) (x)
___________________________________________________________________
3. SEC USE ONLY
___________________________________________________________________
4. SOURCE OF FUNDS*
OO
___________________________________________________________________
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) ( )
___________________________________________________________________
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Massachusetts
___________________________________________________________________
7. SOLE VOTING POWER
NUMBER OF 3,346,627
SHARES _____________________________________
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 0
EACH _____________________________________
REPORTING 9. SOLE DISPOSITIVE POWER
PERSON 3,346,627
WITH _____________________________________
10. SHARED DISPOSITIVE POWER
0
___________________________________________________________________
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,346,627
___________________________________________________________________
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN
SHARES ( )
___________________________________________________________________
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
9.2%
___________________________________________________________________
14. TYPE OF REPORTING PERSON
CO
___________________________________________________________________
ITEM 1. SECURITY AND ISSUER
This Schedule 13D relates to the common stock, $0.01 par value
(the "Central Common Stock") of Central Parking Corporation ("Central"), a
Tennessee corporation. The address of Central's principal executive
offices is 2401 21st Avenue, Suite 200, Nashville, Tennessee 37212.
ITEM 2. IDENTITY AND BACKGROUND
(a)-(c), (f). This Schedule 13D is being filed jointly by AEW
Partners, L.P., a Delaware limited partnership (the "Partnership"),
AEW/L.P., a Delaware limited partnership ("AEWLP") and the general partner
of the Partnership, and AEW, Inc., a Massachusetts corporation (the "AEW
Corp") and the general partner of AEWLP. The Partnership, AEWLP and AEW
Corp. are sometimes collectively referred to herein as the "Reporting
Persons."
The principal offices and the principal business address of the
Partnership, AEWLP and AEW Corp are c/o AEW Capital Management, L.P., 225
Franklin Street, Boston, MA 02110.
The Partnership has been formed for the purpose of acquiring,
holding, disposing of, managing, selling, exchanging and otherwise dealing
in investments and real estate and other assets. AEWLP is the sole general
partner of the Partnership and has been formed for such purpose. AEW Corp
is the sole general partner of AEWLP and has been formed for such purpose.
AEW Corp has no controlling shareholder. The business of AEW
Corp is managed by its Board of Directors. The names, business address and
present principal occupations or employment of the officers and directors
of AEW Corp are shown on Appendix A, which information is required to be
disclosed in response to Item 2 and general instruction C to Schedule 13D.
Each person listed in Appendix A is a citizen of the United States and each
person disclaims beneficial ownership of the Central Common Stock
beneficially owned by the Reporting Persons.
(d) and (e). Neither the Partnership, AEWLP, AEW Corp, nor, to
the best of their knowledge, any of the persons listed in Appendix A has
during the last 5 years (i) been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (ii) been a party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
No funds were directly expended in the acquisition by the
Partnership of the Central Common Stock. See the response to Item 4 herein
for a description of the consideration paid by the Partnership for the
Central Common Stock and the method of such acquisition.
ITEM 4. PURPOSE OF TRANSACTION.
On March 19, 1999 (the "Closing Date"), Central and its wholly-
owned subsidiary Central Merger Sub, Inc. ("Merger Sub"), closed the merger
contemplated by the Agreement and Plan of Merger, dated as of September 21,
1998 and amended as of January 5, 1999 (as so amended, the "Merger
Agreement"), among Central, Merger Sub, Allright Holdings, Inc.
("Allright"), Apollo Real Estate Investment Fund II, L.P. ("Apollo") and
the Partnership. Pursuant to the Merger Agreement, on the Closing Date
Allright merged (the "Merger") with Merger Sub, with Allright remaining as
the surviving corporation. In connection therewith, the Partnership
surrendered for cancellation all of the shares of common stock of Allright,
$0.01 par value (the "Allright Common Stock"), which it owned prior to the
Merger, in exchange for the number of shares of Central Common Stock equal
to the product of (i) 87.6367 (the "exchange ratio" as computed pursuant to
the Merger Agreement) and (ii) the number of shares of Allright Common
Stock which it owned prior to the Merger. Accordingly, as of the Closing
Date, the Reporting Persons beneficially owned 3,346,627 shares of Central
Common Stock.
The Central Common Stock received by the Partnership pursuant to
the Merger (in addition to the Central Common Stock owned by certain other
holders), will be entitled to registration rights set forth in a
registration rights agreement, dated as of September 21, 1998 and amended
as of January 5, 1999 (as so amended, the "Registration Rights Agreement"),
among the Partnership, Apollo, Central, and certain shareholders of
Central. Pursuant to the Registration Rights Agreement, among other
things, the former holders of shares of Allright common stock or options or
warrants to purchase Allright common stock (collectively, the "Allright
Holders"), owning at least eighty percent of the Registrable Securities (as
such term is defined in the Registration Rights Agreement) then owned by
such Allright Holders, will have the right to demand Central to use its
reasonable best efforts to register up to certain specified amounts of
Central Common Stock for resale in a registered public underwritten
offering (the "Underwritten Offering"). The Partnership has the right in
the Underwritten Offering to sell $125 million worth of Central Common
Stock which it received in the Merger, or such lesser amount to the extent
that former Allright shareholders other than the Partnership and Apollo
participate in the Underwritten Offering. The Partnership will also be
entitled to additional demand rights to the extent that it failed to
receive gross proceeds of at least $125 million in the Underwritten
Offering.
Pursuant to the Registration Rights Agreement, the Partnership
also has the right to sell its Central Common Stock received in the Merger
in connection with one or more "shelf" registration statements
(collectively, the "Shelf") to be filed and kept continuously effective by
Central. Central has agreed to use its reasonable best efforts to initially
file the Shelf after the Underwritten Offering is either consummated or
abandoned. The Partnership's right to sell Central Common Stock under the
Shelf shall terminate when all its Central Common Stock received in the
Merger is sold. The Partnership also possesses "piggyback" rights
permitting it to sell Central Common Stock as part of either an
underwritten primary offering, secondary offering, or a combined primary
and secondary offering.
Pursuant to an affiliate agreement entered into between the
Partnership and Central, dated as of September 11, 1998 (the "Affiliate
Agreement"),the Partnership has agreed not to sell, transfer or otherwise
dispose of, or reduce its interest in or risk relating to, any Central
Common Stock issued to the Partnership in the Merger or otherwise
beneficially owned by the Partnership until after such time as Central has
published (within the meaning of Accounting Series Release No. 135, as
amended, of the Securities and Exchange Commission (the "SEC")) in an
effective registration statement, an Annual Report on Form 10-K, Quarterly
Report on Form 10-Q or Current Report on Form 8-K filed with the SEC, or
any publicly disclosed quarterly earnings report or press release or other
authorized public disclosure by Central, financial results covering at
least 30 days of combined post-Merger operations of Central and Allright.
Pursuant to the Merger Agreement, Central has agreed to use its reasonable
best efforts to publish on the earliest possible date after the end of the
first month after the Closing Date in which there are at least thirty days
of post-Merger combined operations, combined sales and net income figures
as contemplated by and in accordance with the terms of SEC Accounting
Series Release No. 135, as amended, of the SEC.
Pursuant to the Merger Agreement, Central has agreed, promptly
after the Closing Date, to expand the Cental Board of Directors (the
"Central Board") from 9 members to 11 members so that the Partnership and
Apollo will each be entitled to designate a nominee to the Central Board.
The Partnership has designated Marc Davidson as its nominee to the Central
Board. Mr. Davidson and any successor designated as nominee to the Central
Board by the Partnership will serve in accordance with and for the time
period specified by Central's charter and bylaws. If at any time the
Partnership individually owns less than $50 million worth of Central Common
Stock, Central shall at the next election of the Central Board have the
right to eliminate the Partnership's right to designate a nominee to the
Central Board.
Pursuant to the Merger Agreement, the Partnership may be required
to make certain indemnification payments. All indemnification obligations
incurred by the Partnership may be satisfied, in its sole discretion, by
the payment of Central Common Stock in lieu of cash. For these purposes,
the value of a share of Central Common Stock delivered in lieu of cash
shall be deemed to equal the closing sale price per share of Central Common
Stock on the New York Stock Exchange on the Closing Date, which was
$35.125.
The Reporting Persons intend to review on a continuing basis
their investment in Central and Central's business, prospects, and
financial condition. Based on such continuing review, alternative
investment opportunities available to the Reporting Persons and all other
factors deemed relevant (including, without limitation, the market for and
price of Central Common Stock, offers for shares of Central Common Stock,
general economic conditions and other future developments), the Reporting
Persons may decide to increase or decrease the Partnership's equity
interest in Central by acquiring additional shares of Central Common Stock
or by disposing of all or a portion of the Central Common Stock.
Other than as reported herein, the Reporting Persons have no
plans or proposals which relate to or would result in any of the following
matters: (a) the acquisition by any person of additional securities of
Central, or the disposition of securities of Central; (b) an extraordinary
corporate transaction, such as a merger, reorganization or liquidation,
involving Central or any of its subsidiaries; (c) a sale or transfer of a
material amount of assets of Central or any of its subsidiaries; (d) any
change in the Central Board or management of Central, including any plans
or proposals to change the number or term of directors or to fill any
existing vacancies on the Central Board; (e) any material change in the
present capitalization or dividend policy of Central; (f) any other
material change in Central's business or corporate structure; (g) changes
in Central's charter, bylaws or other actions which may impede the
acquisition of control of Central by any person; (h) causing a class of
securities of Central to be delisted from a national securities exchange or
to cease to be authorized to be quoted in an inter-dealer quotation system
of a registered national securities association; (i) a class of equity
securities of Central becoming eligible for termination of registration
pursuant to Section 12(g)(4) under the Securities Exchange Act of 1934, as
amended; or (j) any action similar to those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a)-(b) The Reporting Persons are the beneficial owners of
3,346,627 shares of Central Common Stock.
Based on information provided by Central, 36,550,333 shares of
Central Common Stock were outstanding as of the Closing Date. The shares of
Central Common Stock held by the Reporting Persons represent approximately
9.2% of the number of shares of Central Common Stock outstanding as of the
Closing Date.
For all of the shares of Central Common Stock listed above, each
of the Reporting Persons has the sole power to vote, and dispose of, such
shares.
(c) Neither the Reporting Persons nor any person listed in
Appendix A has conducted any transactions in the Central Common Stock in
the past 60 days other than the Reporting Persons' receipt of Central
Common Stock pursuant to the Merger.
(d) N/A
(e) N/A
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
Except as set forth in this Schedule 13D, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) among
the Reporting Persons or between any of the Reporting Persons and any other
person, with respect to the shares of Central Common Stock.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
EXHIBIT No. DESCRIPTION
1. Agreement and Plan of Merger, dated as of September 21,
1998, among Central, Merger Sub, Allright, AREIF II and AEW.
2. Amendment, dated as of January 5, 1999, to the Agreement and
Plan of Merger, dated as of September 21, 1998, among
Central, Merger Sub, Allright, AREIF II and AEW.
3. Registration Rights Agreement, dated as of September 21,
1998, among AREIF II, AEW, Central, Monroe J. Carell, Jr.
and certain trusts.
4. Amendment, dated as of January 5, 1999, to the Registration
Rights Agreement, dated as of September 21, 1998, among
AREIF II, AEW, Central, Monroe J. Carell, Jr. and certain
trusts.
5. Affiliate Agreement, dated as of September 11, 1998, between
the Partnership and Central.
6. Agreement of Joint Filing, dated March 29, 1999, by and
among AEW Partners, L.P., AEW/L.P., and AEW, Inc.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: March 29, 1999
AEW Partners, L.P.
By: AEW/L.P., general partner
By: AEW, Inc., general partner
By: /s/ James J. Finnegan
------------------------------
Name: James J. Finnegan
Title: Vice President
AEW/L.P.
By: AEW, Inc., general partner
By: /s/ James J. Finnegan
------------------------------
Name: James J. Finnegan
Title: Vice President
AEW, Inc.
By: /s/ James J. Finnegan
------------------------------
Name: James J. Finnegan
Title: Vice President
Appendix A
NAME BUSINESS ADDRESS OCCUPATION
---- ---------------- ----------
Joseph F. Azrack AEW Capital Management Pension fund
President; Director 225 Franklin Street investment advisor
Boston, MA 02110
Thomas H. Nolan, Jr. AEW Capital Management Pension fund
Vice President; 225 Franklin Street investment advisor
Director Boston, MA 02110
J. Grant Monahon AEW Capital Management Attorney
Clerk and Vice 225 Franklin Street
President; Director Boston, MA 02110
Jeanne M. Caldwell AEW Capital Management Comptroller
Treasurer 225 Franklin Street
Boston, MA 02110
Peter C. Aldrich AEW International Pension fund
Director 53 State Street investment advisor
Boston, MA 02110
James J. Finnegan AEW Capital Management Attorney
Vice President 225 Franklin Street
Boston, MA 02110
Thomas G. Eastman AEW International Pension fund
Director 53 State Street investment advisor
Boston, MA 02110
Marc L. Davidson AEW Capital Management Pension fund
Vice President 225 Franklin Street investment advisor
Boston, MA 02110
____________________________________________________________________
AGREEMENT AND PLAN OF MERGER
among
CENTRAL PARKING CORPORATION,
CENTRAL MERGER SUB, INC.
and
ALLRIGHT HOLDINGS, INC.
Dated as of September 21, 1998
____________________________________________________________________
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of September 21, 1998
(this "Agreement"), among Central Parking Corporation ("Central"), a
Tennessee corporation, Central Merger Sub, Inc. ("Central Sub"), a Delaware
corporation and wholly owned subsidiary of Central, Allright Holdings, Inc.
("Holdings"), a Delaware corporation and the sole shareholder of Allright
Corporation ("Allright"), a Delaware corporation, Apollo Real Estate
Investment Fund II, L.P. ("Apollo"), a Delaware limited partnership and AEW
Partners, L.P. ("AEW"), a Delaware limited partnership.
RECITALS
WHEREAS, the respective Boards of Directors of Central, Central
Sub and Holdings have each approved the Merger (as defined below) of
Central Sub and Holdings pursuant to the terms of this Agreement;
WHEREAS, the majority stockholders of Central, Monroe J. Carrell,
Jr. and The Carell Children's Trust (collectively, the "Central
Stockholders"), have each entered into a transaction support agreement with
Holdings, Apollo and AEW, dated as of the date hereof (collectively, the
"Transaction Support Agreements"), with respect to the Merger wherein the
Central Stockholders have committed to vote the shares of Central capital
stock beneficially owned by the Central Stockholders in connection with the
Merger and the other transactions contemplated by this Agreement, and
Apollo and AEW, as the majority stockholders of Holdings, have committed to
vote the shares of Holdings capital stock beneficially owned by them in
favor of the Merger and the other transactions contemplated by this
Agreement, and certain other stockholders and warrantholders of Holdings
have each entered into a transaction support agreement with respect to the
Merger wherein such stockholders and warrantholders have committed to vote
the shares of Holdings capital stock beneficially owned by them in favor of
the Merger and the other transactions contemplated by this Agreement;
WHEREAS, Central, certain stockholders of Central, Apollo and AEW
have entered into a Registration Rights Agreement, dated as of the date
hereof (the "Registration Rights Agreement"), pursuant to which Central has
agreed to provide certain registration rights for the benefit of such
stockholders of Central, Apollo and AEW;
WHEREAS, Central, Central Sub and Holdings desire to make certain
representations, warranties, covenants and agreements in connection with
such merger as set forth in this Agreement; and
WHEREAS, for United States Federal income tax purposes, it is
intended that the Merger shall qualify as a reorganization under the
provisions of Section 368 of the Internal Revenue Code of 1986, as amended
(the "Code"), and this Agreement is intended to be and is adopted as a plan
of reorganization within the meaning of Section 368 of the Code;
Now, therefore, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. At the Effective Time (as defined in
Section 1.2) and in accordance with the terms of this Agreement and
applicable law, Central Sub shall be merged (the "Merger") with and into
Holdings and its separate legal existence shall cease to exist, and
Holdings will be the surviving corporation (sometimes referred to herein as
the "Surviving Corporation") and shall continue its corporate existence as
"Allright Holdings, Inc." under the laws of the State of Delaware. The
Merger shall have the effects provided for in Section 251 of the Delaware
General Corporation Law (the "DGCL").
Section 1.2 Effective Time. The merger (the "Merger") shall
become effective at the time of the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware (or at such later time
specified as the effective time in the Certificate of Merger), which
Certificate of Merger shall be so filed at the time of the Closing (as
defined in Section 1.3). The date and time when the Merger becomes
effective are herein referred to as the "Effective Time".
Section 1.3 Closing. Unless this Agreement shall have been
terminated and the transactions herein contemplated shall have been
abandoned pursuant to the provisions of Article VII herein, the closing
(the "Closing") of the transactions contemplated by this Agreement shall
take place at a location to be agreed to by Central and Holdings, on the
second business day following the satisfaction or waiver of the conditions
set forth in Article VI, or at such other time and date as the parties may
mutually agree. The date and time of such Closing are herein referred to
as the "Closing Date". At the Closing, each of the parties hereto shall
take, or cause to be taken, all such actions and deliver, or cause to be
delivered, all such documents, instruments, certificates and other items as
may be required under this Agreement or otherwise, in order to perform or
fulfill all covenants, conditions and agreements on its part to be
performed at or prior to the Effective Time.
Section 1.4 Certificate of Incorporation. The Certificate of
Incorporation of Holdings, as in effect at the Effective Time, shall
continue in effect as the Certificate of Incorporation of the Surviving
Corporation, until thereafter amended as provided therein.
Section 1.5 By-Laws. The By-Laws of Holdings, as in effect at the
Effective Time, shall be the By-Laws of the Surviving Corporation, until
thereafter amended as provided therein.
Section 1.6 Directors and Officers. The officers and directors of
Central Sub at the Effective Time shall be the officers and directors of
the Surviving Corporation, each to hold office until their respective
successors are duly elected and qualified, or their earlier death,
resignation or removal.
ARTICLE II
CONVERSION OF SECURITIES
Section 2.1 Conversion of Securities. At the Effective Time, by
virtue of the Merger and without any action on the part of the holders
thereof:
(a) each share of common stock of Central Sub, $0.01 par
value per share, issued and outstanding immediately prior to the Effective
Time shall be cancelled and cease to exist and shall be converted into one
share of common stock of the Surviving Corporation, $0.01 par value per
share. Such newly issued shares shall thereafter constitute all of the
issued and outstanding shares of the Surviving Corporation;
(b) each share of common stock of Holdings, $0.01 par value
per share (the "Holdings Common Stock"), issued and outstanding immediately
prior to the Effective Time, other than shares to be cancelled in
accordance with Section 2.1(c), shall be cancelled and cease to exist and
shall be converted into and represent the number of common shares of
Central, $0.01 par value per share (the "Central Common Stock"), equal to
the Exchange Ratio (as defined in Section 2.6);
(c) all share capital held in the treasury of Holdings or
held by any of Holdings' subsidiaries shall be cancelled and cease to exist
and no payment shall be made in respect thereof; and
(d) at the Effective Time, all rights in respect of
outstanding shares of Holdings Common Stock shall cease to exist, other
than the right to receive Central Common Stock as described above.
Section 2.2 Closing of Holdings Transfer Books. At the Effective
Time, the stock transfer books of Holdings shall be closed and no transfer
of Holdings Common Stock shall thereafter be made.
Section 2.3 No Fractional Shares. No fractional shares of Central
Common Stock shall be issued pursuant hereto. In lieu of any such
fractional share of Central Common Stock, Central shall pay to each former
shareholder of Holdings who otherwise would be entitled to receive a
fractional share of Central Common Stock an amount in cash determined by
multiplying (i) $46.00 by (ii) the fractional interest in a share of
Central Common Stock to which such holder would otherwise be entitled.
Section 2.4 Certain Adjustments. If after the date hereof and on
or prior to the Closing Date the outstanding shares of Central Common Stock
shall be changed into a different number of shares by reason of any
reclassification, recapitalization, split-up, combination or exchange of
shares, or any dividend payable in stock or other securities shall be
declared thereon with a record date within such period, or any similar
event shall occur, the amount of shares to which a holder of Holdings
Common Stock shall be entitled to receive shall be adjusted accordingly to
provide to such holder the same economic effect as contemplated by this
Agreement prior to such reclassification, recapitalization, split-up,
combination, exchange or dividend or similar event.
Section 2.5 Stock Options; Warrants.
(a) At the Effective Time, each option granted by Holdings to
purchase shares of Holdings Common Stock (each, a "Holdings Option") which
is outstanding and unexercised immediately prior thereto shall cease to
represent a right to acquire shares of Holdings Common Stock and shall be
converted automatically into an option to purchase shares of Central Common
Stock (each, a "Central Option") in an amount and at an exercise price
determined as provided below (and otherwise subject to the terms of the
Allright 1998 Employee Stock Option Plan (the "Holdings Option Plan"), if
applicable to such Holdings Options), and the agreements evidencing grants
thereunder, including, but not limited to, the accelerated vesting of such
options which shall occur in connection with and by virtue of the
consummation of the Merger as and to the extent required by the Holdings
Option Plan and such agreements:
(i) the number of shares of Central Common Stock
to be subject to the new Central Option shall be equal to the product
of the number of shares of Holdings Common Stock subject to the
original Holdings Option and the Exchange Ratio, provided that any
fractional shares of Central Common Stock resulting from such
multiplication shall be rounded down to the nearest share; and
(ii) the exercise price per share of Central
Common Stock under the new Central Option shall be equal to the
exercise price per share of Holdings Common Stock under the original
Holdings Option divided by the Exchange Ratio, provided that the
resulting exercise price shall be rounded up to the nearest cent.
(b) In the case of any Holdings Options which are intended to
be "incentive stock options" (as defined in Section 422 of the
Code)("ISOs"), the exercise price of, the number of shares purchasable
pursuant to, and the terms and conditions of exercise of, the Central
Options issued in exchange therefor shall be determined in order to comply
with Section 424(a) of the Code.
(c) The duration and other terms of Central Options shall be
the same as the Holdings Options except that all references to Holdings
shall be deemed to be references to Central.
(d) As of the Effective Time, the Holdings Options Plan shall
be assumed by Central and, following the Effective Time, Central shall take
all steps necessary to provide that shares of Central Common Stock issuable
upon the exercise of all outstanding Central Options shall be covered by an
effective registration statement on Form S-8 (or other appropriate form) as
soon as practicable after the Effective Time.
(e) At the Effective Time, each warrant granted by Holdings
to purchase shares of Holdings Common Stock (each, a "Holdings Warrant")
which is outstanding and unexercised immediately prior thereto shall cease
to represent a right to acquire shares of Holdings Common Stock and shall
be converted automatically into a warrant to purchase shares of Central
Common Stock (each, a "Central Warrant") in an amount equal to the product
of the number of shares of Holdings Common Stock subject to the original
Holdings Warrant and the Exchange Ratio, provided that any fractional
shares of Central Common Stock resulting from such multiplication shall be
rounded down to the nearest share. The exercise price per share of Central
Common Stock under the new Central Warrant shall be equal to the exercise
price per share of Holdings Common Stock under the original Holdings
Warrant divided by the Exchange Ratio, provided that the resulting exercise
price shall be rounded up to the nearest cent.
Section 2.6 Calculation of Exchange Ratio.
(a) The "Exchange Ratio" shall be (i) the Equity Purchase
Price (as defined in Section 2.6(b)), divided by (ii) $46.00, divided by
(iii) the number of shares of Holdings Common Stock outstanding as of the
Effective Time (excluding any shares of Holdings Common Stock issued or
issuable to the seller in exchange for assets in any acquisition permitted
under Sections 5.1(d) and 5.1(e)), plus the number of shares of Holdings
Common Stock issuable pursuant to outstanding Holdings Options and Holdings
Warrants immediately prior to the Effective Time.
(b) The "Equity Purchase Price" shall be calculated as
follows and shall be set forth in a closing statement (the "Closing
Statement"), an example of which is set forth on Schedule 2.6(b), that will
be prepared by Holdings based on its good faith estimates of the amounts
indicated and provided to Central for its review and approval (which shall
not be unreasonably withheld), not less than five business days prior to
the Closing Date: (i) $564,390,050, plus (ii) the Acquisition Expenses (as
defined in Section 2.6(c)), plus (iii) the excess, if any, of $5,000,000
over the Covered Transaction Expenses (as defined in Section 2.6(d)), plus
(iv) the Working Capital Adjustment (as defined in Section 2.6(e)), plus
(v) the aggregate exercise price of all outstanding and unexercised
Holdings Warrants or Holdings Options which are not ISOs as of the Closing
Date, less (vi) the principal amount of any long-term indebtedness for
borrowed money and capitalized lease obligations of Allright and its
consolidated subsidiaries as of the Closing Date and assumed by Central or
Central Sub pursuant to the Merger, but not including the current portion
of either long-term indebtedness or capitalized lease obligations, less
(vii) the excess, if any, of the Covered Transaction Expenses over
$5,000,000, less (viii) any adjustment required pursuant to paragraph (f)
below, plus (ix) any Divesture Gain (as defined herein), less (x) any
Divesture Loss (as defined herein), less (xi) any proceeds arising from the
sale, lease, transfer or disposition of any property or assets set forth on
Schedule 5.1(j), after deduction of all expenses incurred relating to any
such transaction, less (xii) any Excess Severance (as defined in Section
3.12(a)). Holdings shall use its best efforts to deliver to Central as
soon as possible (but no later than fifteen business days prior to the
Closing Date), Allright's and Holdings' audited financial statements for
the fiscal year ended June 30, 1998, Allright's Actual EBITDA (as defined
below), the Acquired Facility EBITDA (as defined below) and the Non-
Acquired EBITDA (as defined below).
(c) The "Acquisition Expenses" shall be the aggregate amount
of cash consideration and transaction expenses paid by Holdings, Allright
or any Subsidiary (as defined below) through the Closing in respect of any
and all acquisitions of parking facilities after April 30, 1998 and any and
all capital expenditures incurred in connection with such acquisitions and
leases entered into after April 30, 1998, all as set forth on Schedule
2.6(c) (as such Schedule may be supplemented or revised prior to the
Closing Date).
(d) "Covered Transaction Expenses" include, without
duplication, any and all out-of-pocket expenses of Holdings, Allright, the
Subsidiaries, Apollo and AEW, incurred in connection with the Merger or the
other transactions contemplated by this Agreement, to the extent that such
expenses have been paid or are accrued on the Closing Statement. AEW and
Apollo shall list all such expenses on the Closing Statement.
(e) The "Working Capital Adjustment" shall be calculated as
follows: (i) the amount of working capital surplus or deficit (such
deficit, if any, to be expressed as a negative number) of Allright and its
consolidated subsidiaries as set forth on its most recent available balance
sheet (which shall not be dated more than 50 calendar days prior to the
Closing Date), reduced by the amount of any portion of any acquisitions not
financed from additional debt or equity proceeds subsequent to such balance
sheet date and which shall be determined in accordance with Schedule 2.6(e)
and otherwise in accordance with generally accepted accounting principles
("GAAP") applied on a consistent basis with Allright's historical financial
statements, plus (ii) $6,000,000. Any items reflected as Covered
Transaction Expenses or as an adjustment pursuant to any other clause of
paragraph (b) above used to calculate the Equity Purchase Price shall be
excluded in calculating the working capital deficit or surplus for the
purposes of determining the Working Capital Adjustment. The Working
Capital Adjustment may only be a negative number or zero.
(f) Notwithstanding anything to the contrary above, the
Equity Purchase Price shall be adjusted as follows:
(i) if Allright's EBITDA (as defined below) calculated from
Allright's audited financial statements for the fiscal year ended June
30, 1998 ("Allright's Actual EBITDA"), minus the EBITDA attributable to
those parking facilities acquired by Holdings, Allright or any
Subsidiary after April 30, 1998, to the extent the EBITDA attributable
to such parking facilities was included in Allright's Actual EBITDA (the
"Acquired Facility EBITDA", and the difference between Allright's Actual
EBITDA and the Acquired Facility EBITDA, the "Non-Acquired EBITDA"), is
equal to or greater than $34.0 million, the Equity Purchase Price shall
be computed as set forth above and no further adjustment shall be made
under this paragraph (f); and
(ii) if the Non-Acquired EBITDA is less than $34.0 million
(the difference between the $34.0 million and the Non-Acquired EBITDA,
the "EBITDA Shortfall"), then the Equity Purchase Price shall be reduced
by the EBITDA Shortfall, multiplied by 16.
"EBITDA" shall mean, for any particular entity, the earnings before
interest, taxes, depreciation and amortization attributable to that entity.
For purposes of computing Allright's Actual EBITDA above, the EBITDA shall
be derived in accordance with GAAP consistently applied from Allright's
audited financial statements for the fiscal year ended June 30, 1998 and
shall not include the following expenses: the Covered Transaction Expenses
and expenses incurred in connection with the Merger, payments made in
respect of retention, employment and management continuity agreement
bonuses listed on Schedules 5.9(a), 5.9(b) and 5.9(c) and any other
charges related to Holdings Options or Holdings Warrants used to compute
the Exchange Ratio pursuant to Section 2.6(a)(iii), charges for asset
impairments and expenses associated with other liabilities mutually agreed
to by Holdings and Central. In addition, Allright's Actual EBITDA shall
not include any gains or losses attributable to the sale of any assets, and
any minority interest expense deducted to calculate EBITDA shall be
reinstated when computing Allright's Actual EBITDA. The calculation used
to derive Allright's Actual EBITDA shall be included as part of the Closing
Statement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF HOLDINGS
Holdings and Allright represent and warrant to Central and Central
Sub as follows:
Section 3.1 Organization. Holdings is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite power and authority to own, lease and
operate its properties and to carry on its business as now being conducted.
Section 3.2 Authority; Enforceability. Holdings has the corporate
power and authority to execute and deliver this Agreement and to consummate
the transactions contemplated on its part hereby. The execution and
delivery by Holdings of this Agreement and the consummation by Holdings of
the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Holdings. No other corporate
proceedings on the part of Holdings are necessary to authorize the
execution and delivery of this Agreement and the consummation by Holdings
of the transactions contemplated hereby or the performance of its
obligations hereunder. This Agreement has been duly executed and delivered
by Holdings and is a valid and binding agreement of Holdings, enforceable
against Holdings in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency or other similar
laws relating to or affecting creditors' rights generally and by general
equity principles. AEW and Apollo, as the majority stockholders of
Holdings, have taken, or will prior to the Closing take, all action
required to be taken on their respective parts in order for Holdings to
have duly authorized, executed and delivered this Agreement and to
consummate the transactions contemplated hereby.
Section 3.3 Subsidiaries. Holdings does not have any subsidiaries
other than Allright. Except as provided in Schedule 3.3, Allright does not
have any equity interest, directly or indirectly, in any other entity (such
subsidiaries in Schedule 3.3, the "Subsidiaries").
Section 3.4 Non-Contravention. Except as set forth on Schedule
3.4, the execution and delivery by Holdings, AEW and Apollo of this
Agreement and by AEW and Apollo of the Registration Rights Agreement, the
Noncompetition Agreement and the Transaction Support Agreements do not, and
the consummation by each of the transactions contemplated hereby and
thereby and the performance by each of the obligations which it is
obligated to perform hereunder and thereunder will not, (a) violate any
provision of the Certificate of Incorporation or By-Laws of Holdings,
Allright or any Subsidiary, (b) except as a result of failing to obtain any
third party consents, violate, or result in the violation of, any provision
of, or result in the termination of or the acceleration of, or entitle any
party to accelerate any obligation or indebtedness under, or result in the
imposition of any lien upon or the creation of a security interest in any
of the Holdings Common Stock or upon the assets of Holdings, Allright or
any Subsidiary, pursuant to, any mortgage, lien, lease, franchise, license,
permit, agreement or other instrument to which Holdings, Allright or any
Subsidiary is a party, or by which Holdings, Allright or any Subsidiary is
bound, and that is likely to, in any such event, in the aggregate, have a
material adverse effect on the financial condition of Holdings, Allright
and the Subsidiaries taken as a whole (a "Holdings Material Adverse
Effect"), or (c) subject to the approvals required as set forth in Section
3.5, violate or conflict with any other restriction of any kind or
character to which Holdings, Allright or any Subsidiary or to which AEW or
Apollo is subject which would prevent or significantly restrict or delay
the consummation of the transactions contemplated hereby.
Section 3.5 Consents. Except for filings under the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and
as set forth in Schedule 3.5, no consent, authorization, order or approval
of, or filing or registration with, any governmental commission, board or
other regulatory body (collectively, "Consents") which has not been
obtained or made is required (a) for or in connection with the execution
and delivery of this Agreement by Holdings and the consummation by Holdings
of the transactions contemplated hereby and the performance by Holdings of
its obligations hereunder, other than those Consents, the failure of which
to obtain, in the aggregate, would not have a Holdings Material Adverse
Effect, or (b) for the ongoing operations of Allright and the Subsidiaries
as currently conducted, other than those Consents, the failure of which to
obtain, in the aggregate, would not have a Holdings Material Adverse
Effect.
Section 3.6 Capital Stock.
(a) The entire authorized capital stock of Holdings consists
of 500,000 shares of common stock, $0.01 par value, 79,564 of which are
issued and outstanding as of the date hereof and all such shares are
validly issued, fully paid and nonassessable, and 500,000 shares of
preferred stock, with a par value of $0.01 per share, none of which are
issued and outstanding. Except as set forth on Schedule 3.6(a), there are
no outstanding obligations, warrants, options or other rights to subscribe
for or purchase, or other plans, contracts or commitments providing for the
issuance of, or the granting of rights to acquire, shares of stock of any
class of Holdings capital stock or any securities or other instruments
convertible into or exchangeable for shares of stock of any class of
Holdings capital stock.
(b) The entire authorized capital stock of Allright consists
of 1,000 shares of common stock, $0.01 par value, all of which are issued
and outstanding as of the date hereof, and all such shares are validly
issued, fully paid and nonassessable. Other than as set forth on Schedule
3.6(b), Holdings owns all such issued and outstanding shares free and clear
of any options, liens, claims, charges or other encumbrances. There are no
outstanding obligations, warrants, options or other rights to subscribe for
or purchase, or other plans, contracts or commitments providing for the
issuance of, or the granting of rights to acquire, shares of stock of any
class of Allright capital stock or any securities or other instruments
convertible into or exchangeable for shares of stock of any class of
Allright capital stock.
(c) All of the issued and outstanding shares of capital stock
or securities of the Subsidiaries (the "Subsidiaries Shares") are validly
issued, fully paid and nonassessable. Allright owns, directly or
indirectly, the percentage of such Subsidiary Shares set forth on Schedule
3.6(c), in each case free and clear of any options, liens, claims, charges
or other encumbrances, except as set forth on Schedule 3.6(c). There are
no outstanding obligations, warrants, options or other rights to subscribe
for or purchase, or other plans, contracts or commitments providing for the
issuance of, or the granting of rights to acquire, shares of stock of any
class of any Subsidiary capital stock or any securities or other
instruments convertible into or exchangeable for shares of stock of any
class of any Subsidiary capital stock.
Section 3.7 Organization and Qualification of Allright and the
Subsidiaries. Except as set forth on Schedule 3.7, each of Allright and the
Subsidiaries is duly incorporated or formed, validly existing and in good
standing under the laws of the jurisdiction of its organization and each
has full corporate or partnership, as the case may be, power and authority
to own all of its properties and assets and to carry on its business as it
is now being conducted, except where such failure would not, in the
aggregate, have a Holdings Material Adverse Effect. Each of Allright and
the Subsidiaries is qualified and in good standing in every jurisdiction
where the failure to so qualify or be in good standing would have, in the
aggregate, a Holdings Material Adverse Effect.
Section 3.8 Financial Statements. Schedule 3.8 contains a true
and correct copy of (a) the audited consolidated balance sheet of Allright
as of June 30, 1997, (b) the audited related statement of income and cash
flows for the three-years then ended, (c) the unaudited consolidated
balance sheet of Allright as of June 30, 1998, (d) the unaudited and
consolidated statements of income and retained earnings and unaudited
statements of cash flows of Allright for the fiscal year ended June 30,
1998, (e) the unaudited balance sheet of Holdings (parent company only) as
of June 30, 1998 and (f) the unaudited statements of income and retained
earnings of Holdings (parent company only) for the fiscal year ended June
30, 1998 (collectively, the "Financial Statements"). The Financial
Statements (including the notes thereto) present fairly in all material
respects the financial position and results of operations of Allright and
the Subsidiaries as of the date and for the periods specified therein set
forth, and have been prepared in accordance with GAAP consistently applied,
except for any ordinary year-end adjustments and footnote disclosures with
respect to any interim financial statement. The sole remedy for any breach
of this Section 3.8 shall be an adjustment to the Equity Purchase Price as
set forth in Section 2.6(f), except if such breach arises from a fraudulent
act or fraudulent omission committed by AEW, Apollo, Holdings or Allright
in connection with the preparation of such Financial Statements.
Section 3.9 Undisclosed Liabilities. Except as set forth on
Schedule 3.9, Holdings, Allright and the Subsidiaries have no liabilities
or obligations, secured or unsecured (whether absolute, accrued, contingent
or otherwise and whether due or to become due), which are not fully
reflected in the Financial Statements, except (a) those incurred in the
ordinary course of business since June 30, 1998, (b) those that may have
arisen as a result of the execution and delivery of this Agreement by
Holdings or (c) those that would not have, in the aggregate, a Holdings
Material Adverse Effect.
Section 3.10 Absence of Certain Changes or Events. Except as
contemplated by this Agreement, since the date of the Financial Statements,
Holdings, Allright and the Subsidiaries have conducted their respective
businesses in the ordinary course.
Section 3.11 Legal Proceedings. Except as set forth in Schedule
3. 11, there are no governmental proceedings seeking over $50,000 or
private litigation proceedings against Holdings, Allright or any Subsidiary
pending or, to the knowledge of Holdings, threatened which, if determined
adversely to Holdings, Allright or any Subsidiary, is likely to have, in
the aggregate, a Holdings Material Adverse Effect, nor are there any
judgments, decrees or orders against or enjoining Holdings, Allright or any
Subsidiary in respect of, or the effect of which is to prohibit, restrict,
or affect, any business practice or the acquisition of any property or the
conduct of business in any area which will have, in the aggregate, a
Holdings Material Adverse Effect.
Section 3.12 Employee Benefits.
(a) Schedule 3.12(a) sets forth a true and complete list as
of the date hereof of each material bonus, retention bonus, deferred
compensation, incentive compensation, severance, stock purchase, stock
option, severance or termination pay, hospitalization or other medical,
life or other insurance, supplemental unemployment benefits, profit-
sharing, pension or retirement plan, program, agreement or arrangement
sponsored, maintained or contributed to or required to be contributed to by
Holdings, Allright or the Subsidiaries or by any trade or business, whether
or not incorporated (an "ERISA Affiliate"), that together with Holdings,
Allright or the Subsidiaries would be deemed a "single employer" within the
meaning of section 4001(a)(15) of ERISA, for the benefit of any employee or
former employee of Allright or an ERISA Affiliate, whether written or
unwritten (the "Plans"). For purposes of the adjustment to the Equity
Purchase Price set forth in Section 2.6(b), "Excess Severance" shall mean
the amount by which the aggregate severance obligations of Holdings,
Allright or the Subsidiaries set forth on Schedule 3.12(a) as updated or
supplemented on the Closing Date (excluding any reasonable and customary
severance obligations contained in provisions of any employment or
severance agreement entered into in connection with any acquisition of a
parking facility or parking-related entity after the date hereof) shall
exceed $6.3 million.
(b) Holdings, Allright and the Subsidiaries have previously
made available to Central or its representatives copies of (i) each of the
Plans or summaries thereof, including all amendments thereto to date; (ii)
the two most recent actuarial statements, if any, prepared for each Plan;
(iii) the two most recent annual reports (Series 5500 and all schedules
thereto), if any, required under ERISA in connection with each Plan or
related trust; (iv) the most recent determination letter received from the
IRS, if any, for each Plan and related trust which is intended to satisfy
the requirements of Section 401(a) of the Code; (v) the most recent summary
plan description together with the most recent summary of material
modifications, if any, required under ERISA with respect to each Plan; and
(vi) all material communications to any employee or employees relating to
each Plan.
(c) Except as set forth on Schedule 3.12(c) hereto, no Plan
provides benefits, including without limitation death or medical benefits
(whether or not insured) with respect to current or former employees of
Holdings, Allright, any Subsidiary or any ERISA Affiliate beyond their
retirement or other termination of service (other than (i) coverage
mandated by applicable law, (ii) death benefits or retirement benefits
under any "employee pension plan," as defined in section 3(2) of ERISA, or
(iii) benefits the full cost of which is borne by the current or former
employee (or his beneficiary)).
(d) Each of the Plans is in material compliance with the
terms thereof and with the requirements of any and all laws, orders,
decrees, rules and regulations applicable to such plan, including, but not
limited to, ERISA and the Code. Except as set forth on Schedule 3.12 (d),
no Plan is subject to Title IV of ERISA. There are no pending, threatened
or anticipated claims (other than routine claims for benefits) by, on
behalf of or against any of the Plans or any trusts related thereto.
(e) Except as set forth on Schedule 3.12(e), no Plan is a
"multiemployer pension plan" (as defined in section 3(37) of ERISA). With
respect to any Plan that is a "multiemployer pension plan" (as defined in
section 3(37) of ERISA) covering employees of Holdings, Allright, the
Subsidiaries or any ERISA Affiliate, (i) none of Holdings, Allright, any
Subsidiary or any ERISA Affiliate has, since January 1, 1992, made or
suffered a "complete withdrawal" or a "partial withdrawal," as such terms
are respectively defined in sections 4203 and 4205 of ERISA, (ii) no event
has occurred that presents a material risk of a partial withdrawal, (iii)
none of Holdings, Allright, any Subsidiary or any ERISA Affiliate has any
contingent liability under section 4204 of ERISA and no circumstances exist
that present a material risk that any such plan will go into
reorganization, and (iv) the aggregate withdrawal liability of Holdings,
Allright, the Subsidiaries and the ERISA Affiliates, computed as if a
complete withdrawal by Holdings, Allright, the Subsidiaries and the ERISA
Affiliates had occurred under each such Plan on the date hereof, would not
exceed $25,000.
(f) Each Plan intended to be "qualified" within the meaning
of Section 401(a) of the Code has received a determination letter from the
Internal Revenue Service stating that it is so qualified, and, to the
knowledge of Holdings, Allright and the Subsidiaries, no event has occurred
since the date of such determination that would adversely affect such
determination.
(g) The consummation of the Merger will not cause Holdings,
Allright or any Subsidiary to be responsible for any long-term gain
incentive bonus to be paid to any regional or division manager in
connection with the sale of owned property.
Section 3.13 Properties, Contracts and Other Data.
(a) Allright and its Subsidiaries own and have good,
marketable and insurable title to the real property owned of record or
beneficially by Allright or such Subsidiary, as the case may be (the "Owned
Properties"), free and clear of all mortgages, liens (except for ad valorem
real estate taxes not yet delinquent or the validity of which are being
contested in good faith, imperfections and liens that do not materially
detract from the value of or interfere with the present use of such
property), claims, pledges, security interests and other monetary
encumbrances, and free of all restrictions, easements, reservations,
covenants and other non-monetary encumbrances, except for the matters set
forth in the title policies related to the Owned Properties referenced on
Schedule 3.13(a)(1) and as set forth on Schedule 3.13(b)(1). Except as set
forth on Schedule 3.13(a)(2), as of the date hereof, neither Allright nor
any Subsidiary has received any written notice of condemnation or
suspension of its right to use with respect to any of the Owned Properties,
none of the Owned Properties is subject to condemnation proceedings and
there is not now pending or threatened, any governmental or regulatory
action or action by a private party adverse to the uses contemplated for
the Owned Properties by Allright and its Subsidiaries.
(b) Except as set forth on Schedule 3.13(b)(1), as of the
date hereof there are no (i) mortgages, indentures, loan agreements or
other borrowing agreements to which Holdings, Allright or any Subsidiary is
a party as obligor, or to which it or any of their respective owned assets
or properties is subject, which relate to indebtedness of Holdings,
Allright or any Subsidiary for borrowed money or to mortgaging, pledging or
otherwise placing a lien on any of their respective assets; or (ii)
guarantees or indemnification agreements given or entered into by Holdings,
Allright or any Subsidiary with respect to indebtedness for borrowed money
or in support of obligations the principal obligor in respect of which is
not Holdings, Allright or any Subsidiary. Except as set forth on Schedule
3.13(b)(2), neither Allright's chief executive officer, chief financial
officer, chief operating officer, general counsel nor divisional managers
have knowledge (based on reasonable information) that any party to any
contract involving the payment by or to Holdings, Allright or any
Subsidiary of more than $100,000 per annum that such party intends or has
threatened to cancel, terminate or amend such contract.
Section 3.14 Certain Tax Matters.
(a) Except as set forth in Schedule 3.14:
(i) giving effect to all extensions obtained,
each of Holdings, Allright and the Subsidiaries has timely filed (or
there has been timely filed on its behalf) all Tax Returns (as defined
below) required to be filed by it, and all such Tax Returns are
complete in all material respects, has paid (or there has been paid on
its behalf) all Taxes shown thereon to be due, other than such Taxes
as are being contested in good faith, and has established reserves in
accordance with generally accepted accounting principles for the
payment of all Taxes for periods subsequent to the periods covered by
such Tax Returns;
(ii) no material deficiency, assessment or other
formal claim for any material Taxes has been asserted by a Tax
authority against Holdings, Allright or any of the Subsidiaries that
has not been fully paid, accrued or finally settled;
(iii) none of Holdings, Allright or any of the
Subsidiaries has been notified that any Tax Returns are currently the
subject of any audit or other administrative proceeding or court
proceeding ("Audit") by any Tax authority;
(iv) no extension, waiver or comparable consent
regarding the application of the statute of limitations with respect
to any Taxes or Tax Returns has been given by or on behalf of
Holdings, Allright or any of the Subsidiaries and is currently in
effect; and
(v) the income Tax Returns of Holdings, Allright
and the Subsidiaries for the taxable periods ending on or before June
30, 1992 have been examined by the appropriate Tax authority (or the
applicable statute of limitations for the assessment of Taxes for such
periods has expired) and a list of Audits commenced and not yet
completed with respect to Holdings, Allright and the Subsidiaries is
set forth on Schedule 3.14.
(b) For purposes of this Agreement, (i) "Taxes" (including,
with correlative meaning, the term "Tax") shall mean all taxes, charges,
fees, levies, penalties or other assessments imposed by any federal, state,
local or foreign governmental authority, including, but not limited to,
income, gross receipts, commercial rent and occupancy, excise, property,
sales, transfer, franchise, payroll, withholding, social security or other
taxes, including any interest, penalties or additions attributable thereto
and (ii) "Tax Return" shall mean any return, report, information return or
other document (including any related or supporting information) with
respect to Taxes.
(c) To the knowledge of Holdings, the Indemnification
Agreement, dated as of October 31, 1996, by and among Nedinco Delaware
Incorporated, Hang Lung Development Company Ltd., Allright Holdings LLC and
Allright, and the Letter of Credit, made by HSBC Trade Services on October
29, 1996 related thereto, are each valid and binding agreements,
enforceable against each party thereto in accordance with their respective
terms, except as such enforceability may be limited by bankruptcy,
insolvency or other similar laws relating to or affecting creditors' rights
generally and by general equity principles.
Section 3.15 Compliance with Laws. Except as set forth in
Schedule 3.15, to their knowledge, each of Holdings, Allright and the
Subsidiaries;
(a) is in substantial compliance with all laws, regulations,
reporting and licensing requirements, and orders applicable to its business
or employees conducting its business;
(b) has received no notification or communication from any
agency or department of any federal, state, local or foreign government or
any regulatory authority or the staff thereof (i) asserting that Holdings,
Allright or any Subsidiary is not in compliance with any of the statutes,
regulations or ordinances which such governmental authority or regulatory
authority enforces, or (ii) threatening to revoke any license, franchise,
permit, or governmental authorization; and
(c) is not a party to any written order, decree, agreement or
memorandum of understanding with, or a commitment letter or similar
submission to, or a recipient of any extraordinary supervisory letter from,
any federal, state or local governmental agency or authority which
restricts in any material respect the conduct of business of Holdings,
Allright and the Subsidiaries; nor has Holdings, Allright or any Subsidiary
been advised by any such regulatory authority that such authority is
contemplating issuing or requesting any such order, decree, agreement,
memorandum of understanding, extraordinary supervisory letter, commitment
letter or similar submission.
Section 3.16 Environmental Laws. Except as set forth on Schedule
3.16, and to Holdings' knowledge:
(a) the facilities and properties owned, leased or operated
by Allright or any Subsidiary (the "Properties") and all operations at the
Properties are in material compliance with all applicable federal, state,
local and foreign laws and regulations relating to protection of the
environment ("Environmental Laws");
(b) neither of Allright nor any Subsidiary has received any
notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the properties or the business
operated by Allright or any Subsidiary (the "Business"), nor does Holdings
have knowledge of facts that could lead to such notice;
(c) no judicial proceeding or governmental or administrative
action is pending or threatened, under any Environmental Law to which
Allright or any Subsidiary is or is likely to be named as a party with
respect to the Properties or the Business, nor are there any consent
decrees or other decrees, consent orders, administrative orders or other
orders under any Environmental Law with respect to the Properties or the
Business;
(d) no Phase II Environmental Site Assessments have been
prepared with respect to real property owned of record or beneficially by
Holdings, Allright or any Subsidiary as the date hereof; and
(e) access to all Phase I Environmental Site Assessments, and
any other environmental reports or studies, prepared as of the date hereof,
with respect to real property owned of record or beneficially by Holdings,
Allright or any Subsidiary, has been provided to representatives of
Central. Those properties for which no Phase I Environmental Assessments
have been prepared are set forth on Schedule 3.16.
Holdings' sole representations with respect to environmental matters are
set forth in this Section 3.16. To the extent representations in other
sections of this Agreement could also apply to environmental matters
including, but not limited to, matters related to, arising under or
concerning Environmental Laws, such representations shall be construed to
exclude all environmental matters and to apply to matters other than
environmental matters.
Section 3.17 Affiliate Transactions. Except as set forth in
Schedule 3.17 and for the payment by Holdings of transaction expenses of
Apollo and AEW as contemplated by Section 5.9, there is no transaction and
no transaction is now proposed, to which Holdings, Allright or any
Subsidiary is or is to be a party in which any current stockholder,
director or officer or other affiliate of Holdings, Allright or any
Subsidiary has a direct or indirect interest.
Section 3.18 Labor and Employment Matters.
(a) Except as set forth in Schedule 3.18, there is no
collective bargaining agreement, other labor agreement or employment
contract to which Holdings, Allright or any Subsidiary is a party or by
which it is bound and, in the case of employment contracts, involving
employees at the city manager level or higher.
(b) Except as set forth in Schedule 3.18; (i) no labor union
or organization has been certified or recognized as a representative of any
employees of Holdings, Allright or any Subsidiary, (ii) to the knowledge of
Holdings, there are no current or threatened organizational activities or
demands for recognition by a labor organization seeking to represent
employees of Holdings, Allright or any Subsidiary, labor strikes, material
arbitrations or material labor grievances or difficulties and (iii) to the
knowledge of Holdings no such activities have occurred during the past 12
months.
Section 3.19 Insurance. All properties and operations of
Holdings, Allright and the Subsidiaries are insured for its respective
benefit, in such amounts and against such risks customarily insured against
by persons operating similar properties or conducting similar operations
under valid and enforceable policies issued by insurers of recognized
responsibility. Holdings does not have knowledge of any pending or
threatened termination or cancellation, coverage limitation or reduction,
or material premium increase with respect to any policy.
Section 3.20 Certain Contracts. Except as set forth on Schedule
3.20, there is no contract to which Holdings, Allright or any Subsidiary is
a party which contains any (i) non-competition or non-solicitation
provision, (ii) any earn-out or lock-out provision, or (iii) any rights to
share proceeds, rights to repurchase, contingent payment or similar
provision, other than those customary revenue sharing arrangements relating
to ongoing business operations contained in ordinary course of business
lease and management agreement participation provisions.
Section 3.21 Accounting Matters. Holdings believes, after
discussions with Arthur Andersen, that Holdings qualifies as a "combining
company" in accordance with the criteria set forth in paragraph 46 of
Accounting Principles Board Opinion No. 16 ("APB 16") and has not violated
the criteria set forth in paragraph Nos. 47c, 47d and 48c of APB 16 during
the period extending from two years preceding the initiation date of the
Merger and the Closing Date.
Section 3.22 No Implied Representation. Notwithstanding anything
contained in this Article or any other provision of this Agreement, it is
the explicit intent of each party hereto that none of Holdings, Allright,
any Subsidiary, Apollo, AEW or any of their respective affiliates,
directors or officers is making any representation or warranty whatsoever,
express or implied, other than those representations and warranties of
Holdings in this Agreement, and in the case of AEW and Apollo, with respect
to the last sentence of Section 3.2. It is understood that any estimates,
projections or other predictions contained or referred to in any Exhibit or
Schedule hereto or which otherwise have been or are provided to Central or
its representatives or affiliates are not and shall not be deemed to be
representations or warranties of Holdings, Allright, any Subsidiary,
Apollo or AEW or any of their respective affiliates. Central and Central
Sub acknowledge that there are uncertainties inherent in attempting to make
such estimates, projections and other predictions, that they are familiar
with such uncertainties, that they are taking full responsibility for
making their own evaluation of the adequacy and accuracy of all estimates,
projections and other predictions so furnished to them, and that they shall
have no claim against anyone with respect thereto.
Section 3.23 Intellectual Property. Schedule 3.23 sets forth a
true and complete list of all licenses and other rights to use without
payment of all patents, copyrights, trade secrets, trade names,
servicemarks and trademarks used in its businesses held by Holdings,
Allright or any Subsidiary; and none of Holdings, Allright or any
Subsidiary has received any notice of conflict with respect thereto that
asserts the right of others.
Section 3.24 Certain Information. Holdings has delivered to
Central or its representatives, prior to the date hereof, true and complete
copies (other than with respect to names of entities or landlords or
locations, which information has been deleted from such copies) of any and
all assignment provisions contained in any leases for parking facilities
with direct lot operating profits of over $50,000 for the 1998 fiscal year
(the "$50,000 Leases").
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
CENTRAL AND CENTRAL SUB
Central and Central Sub represent and warrant to Holdings as
follows:
Section 4.1 Organization. Central and Central Sub are duly
organized, validly existing and in good standing under the laws of the
jurisdiction of their respective incorporation and have all requisite power
and authority to own, lease and operate their properties and to carry on
their respective business as now being conducted.
Section 4.2 Authority; Enforceability.
(a) Central and Central Sub have the corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated on their respective parts hereby, and Central has
the corporate power and authority to execute and deliver the Registration
Rights Agreement and to consummate the transactions contemplated thereby.
The execution and delivery by Central and Central Sub of this Agreement and
by Central of the Registration Rights Agreement and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by
all necessary corporate action on their respective parts, subject, in the
case of the issuance of Central Common Stock pursuant to the Merger, to the
approval by Central's shareholders (the "Central Shareholder Approval") of
such issuance required by the shareholder approval policy of the New York
Stock Exchange (the "NYSE"). No other corporate proceedings on the part of
Central or Central Sub other than the Central Shareholder Approval are
necessary to authorize the execution and delivery of this Agreement or the
Registration Rights Agreement and the consummation by each of the
transactions contemplated hereby and by Central of the transactions
contemplated thereby or the performance of their obligations hereunder or
by Central thereunder. This Agreement has been duly executed and delivered
by Central and Central Sub and is a valid and binding agreement of Central
and Central Sub, as the case may be, enforceable against each in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency or other similar laws relating to or affecting creditors' rights
generally and by general equity principles. The Registration Rights
Agreement has been duly executed and delivered by Central and is a valid
and binding agreement of Central, enforceable against Central in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency or other similar laws relating to or affecting creditors' rights
generally and by general equity principles.
(b) The Transaction Support Agreements have each been duly
executed and delivered by the Central Stockholders and are valid and
binding agreements of the Central Stockholders, enforceable against each of
the Central Stockholders in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency or other similar
laws relating to or affecting creditors' rights generally and by general
equity principles. Compliance by the Central Stockholders with the
Transaction Support Agreements will ensure that the Central Shareholder
Approval is obtained without the need for approval by any other stockholder
of Central.
Section 4.3 Subsidiaries. Central does not have any subsidiaries
other than those set forth in Schedule 4.3 (such subsidiaries in Schedule
4.3, "Central Subsidiaries").
Section 4.4 Non-Contravention. Except as set forth in Schedule
4.4, the execution and delivery by Central and Central Sub of this
Agreement, by Central of the Registration Rights Agreement and by the
Central Stockholders of the Transaction Support Agreements do not, and the
consummation by each of the transactions contemplated hereby and thereby,
as the case may be, and the performance by each of the obligations which
they are obligated to perform hereunder and thereunder, as the case may be,
will not (a) violate any provision of the Certificate of Incorporation or
By-Laws of Central or any Central Subsidiary, (b) except as a result of
failing to obtain any third party consents, violate, or result in the
violation of, any provision of, or result in the termination of or the
acceleration of, or entitle any party to accelerate any obligation or
indebtedness under, or result in the imposition of any lien upon or the
creation of a security interest in any of the Central Common Stock or upon
the assets of Central or any Central Subsidiary, pursuant to, any mortgage,
lien, lease, franchise, license, permit, agreement or other instrument to
which Central or any Central Subsidiary is a party, or by which Central or
any Central Subsidiary is bound, and that is likely to, in any such event,
in the aggregate, have a material adverse effect on the financial condition
of Central and the Central Subsidiaries taken as a whole (a "Central
Material Adverse Effect"), or (c) subject to the approvals required as set
forth in Section 4.5, violate or conflict with any other restriction of any
kind or character to which Central, any Central Subsidiary or the Central
Stockholders are subject which would prevent or significantly restrict or
delay the consummation of the transactions contemplated hereby.
Section 4.5 Consents. Except for filings under the HSR Act, and
as set forth in Schedule 4.5, no Consent which has not been obtained or
made is required (a) for or in connection with the execution and delivery
of this Agreement by Central and Central Sub and the consummation by
Central and Central Sub of the transactions contemplated hereby and the
performance by Central and Central Sub of their obligations hereunder,
other than those Consents, the failure of which to obtain, in the
aggregate, would not have a Central Material Adverse Effect, or (b) for the
ongoing operations of Central and the Central Subsidiaries as currently
conducted, other than those Consents, the failure of which to obtain, in
the aggregate, would not have a Central Material Adverse Effect.
Section 4.6 Capital Stock.
(a) The entire authorized capital stock of Central consists
of 50,000,000 shares of Central Common Stock, 29,564,067 of which are
issued and outstanding as of September 17, 1998, and all such shares are
validly issued, fully paid and nonassessable, and 1,000,000 shares of
preferred stock, $0.01 par value per share, none of which are issued and
outstanding. Shareholders of Holdings will own, upon their issuance
pursuant to Article II, validly issued, fully paid and nonassessable shares
of Central Common Stock, and all such shares will be free and clear of any
options, liens, claims, charges or other encumbrances, subject to rights
outlined in the Registration Rights Agreement. Except as set forth on
Schedule 4.6(a), there are no outstanding obligations, warrants, options or
other rights to subscribe for or purchase, or other plans, contracts or
commitments providing for the issuance of, or the granting of rights to
acquire, shares of stock of any class of Central capital stock or any
securities or other instruments convertible into or exchangeable for shares
of stock of any class of Central capital stock.
(b) All of the issued and outstanding shares of capital stock
or securities of the Central Subsidiaries (the "Central Subsidiaries
Shares") are validly issued, fully paid and nonassessable. Central owns,
directly or indirectly, the percentage of such Central Subsidiaries Shares
set forth on Schedule 4.3, in each case free and clear of any options,
liens, claims, charges or other encumbrances. Except as set forth on
Schedule 4.6(b), there are no outstanding obligations, warrants, options or
other rights to subscribe for or purchase, or other plans, contracts or
commitments providing for the issuance of, or the granting of rights to
acquire, shares of stock of any class of any Central Subsidiary capital
stock or any securities or other instruments convertible into or
exchangeable for shares of stock of any class of any Central Subsidiary
capital stock.
Section 4.7 Organization and Qualification of the Central
Subsidiaries. Except as set forth on Schedule 4.7, each of the Central
Subsidiaries is duly incorporated or formed, validly existing and in good
standing under the laws of the jurisdiction of its organization and each
has full corporate or partnership, as the case may be, power and authority
to own all of its properties and assets and to carry on its business as it
is now being conducted, except where such failure would not, in the
aggregate, have a Central Material Adverse Effect. Each of Central and the
Central Subsidiaries is qualified and in good standing in every
jurisdiction where the failure to so qualify or be in good standing would
have, in the aggregate, a Central Material Adverse Effect.
Section 4.8 SEC Reports. Since October 10, 1995, Central has
filed with the Securities and Exchange Commission (the "SEC") all reports,
schedules, forms, statements and other documents (including exhibits and
all other information incorporated therein) required to be filed with the
SEC (the "Central SEC Documents"). As of their respective dates, the
Central SEC Documents complied in all material respects with the
requirements of the Securities Act of 1933, as amended (the "Securities
Act"), or the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as the case may be, and the rules and regulations of the SEC
promulgated thereunder applicable to such Central SEC Documents, and none
of the Central SEC Documents when filed (as amended and restated and as
supplemented by subsequently filed Central SEC Documents) contained any
untrue statement of fact or omitted to state a fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, other than
those, in the aggregate, which would not have a Central Material Adverse
Effect. The financial statements of Central included in the Central SEC
Documents complied as to form, as of their respective dates of filing with
the SEC, in all material respects with applicable accounting requirements
and the published rules and regulations of the SEC with respect thereto,
have been prepared in accordance with GAAP (except, in the case of
unaudited statements, as permitted by Form 10-Q of the SEC) applied on a
consistent basis during the periods involved (except as may be indicated in
the notes thereto) and fairly present the consolidated financial position
of Central and its consolidated subsidiaries as of the dates thereof and
the consolidated results of their operations and cash flows for the periods
then ended (subject, in the case of unaudited statements, to normal
recurring year-end audit adjustments), except when such failure, in the
aggregate, would not have a Central Material Adverse Effect. True, correct
and complete copies of Central's most recent Form 10-K, Form 10-Q and Proxy
Statement are set forth on Schedule 4.8.
Section 4.9 Undisclosed Liabilities. Except as set forth on
Schedule 4.9, Central and the Central Subsidiaries have no liabilities or
obligations, secured or unsecured (whether absolute, accrued, contingent or
otherwise and whether due or to become due), which are not fully reflected
in the financial statements contained in the Central SEC Documents, except
(a) those incurred in the ordinary course of business since June 30, 1998,
(b) those that may have arisen as a result of the execution and delivery of
this Agreement by Central and Central Sub, or (c) those that would not
have, in the aggregate, a Central Material Adverse Effect.
Section 4.10 Absence of Certain Changes or Events. Except as
contemplated by this Agreement, since June 30, 1998, Central and the
Central Subsidiaries have conducted their respective businesses in the
ordinary course.
Section 4.11 Legal Proceedings. Except as set forth in Schedule
4. 11, there are no governmental proceedings seeking over $50,000 or
private litigation proceedings against Central or any Central Subsidiary
pending or, to the knowledge of Central or any Central Subsidiary,
threatened which, if determined adversely to Central or any Central
Subsidiary, is likely to have, in the aggregate, a Central Material Adverse
Effect, nor are there any judgments, decrees or orders against or enjoining
Central or any Central Subsidiary in respect of, or the effect of which is
to prohibit, restrict, or affect, any business practice or the acquisition
of any property or the conduct of business in any area which will have, in
the aggregate, a Central Material Adverse Effect.
Section 4.12 Employee Benefits.
(a) Schedule 4.12(a) sets forth a true and complete list as
of the date hereof of each material bonus, retention bonus, deferred
compensation, incentive compensation, severance, stock purchase, stock
option, severance or termination pay, hospitalization or other medical,
life or other insurance, supplemental unemployment benefits, profit-
sharing, pension or retirement plan, program, agreement or arrangement
sponsored, maintained or contributed to or required to be contributed to by
Central or the Central Subsidiaries or by any trade or business, whether or
not incorporated (a "Central ERISA Affiliate"), that together with Central
or the Central Subsidiaries would be deemed a "single employer" within the
meaning of section 4001(a)(15) of ERISA, for the benefit of any employee or
former employee of Central or a Central ERISA Affiliate, whether written or
unwritten (the "Central Plans").
(b) Central and the Central Subsidiaries have previously
delivered to Allright or its representatives copies of (i) each of the
Central Plans or summaries thereof, including all amendments thereto to
date; (ii) the two most recent actuarial statements, if any, prepared for
each Central Plan; (iii) the two most recent annual reports (Series 5500
and all schedules thereto), if any, required under ERISA in connection with
each Central Plan or related trust; (iv) the most recent determination
letter received from the IRS, if any, for each Central Plan and related
trust which is intended to satisfy the requirements of Section 401(a) of
the Code; (v) the most recent summary plan description together with the
most recent summary of material modifications, if any, required under ERISA
with respect to each Central Plan; and (vi) all material communications to
any employee or employees relating to each Central Plan.
(c) Except as set forth on Schedule 4.12(c) hereto, no
Central Plan provides benefits, including without limitation death or
medical benefits (whether or not insured) with respect to current or former
employees of Central, any Central Subsidiary or any Central ERISA Affiliate
beyond their retirement or other termination of service (other than (i)
coverage mandated by applicable law, (ii) death benefits or retirement
benefits under any "employee pension plan," as defined in section 3(2) of
ERISA, or (iii) benefits the full cost of which is borne by the current or
former employee (or his beneficiary)).
(d) Each of the Central Plans is in material compliance with
the terms thereof and with the requirements of any and all laws, orders,
decrees, rules and regulations applicable to such plan, including, but not
limited to, ERISA and the Code. Except as provided in Schedule 4.12(d), no
Central Plan is subject to Title IV of ERISA. There are no pending,
threatened or anticipated claims (other than routine claims for benefits)
by, on behalf of or against any of the Central Plans or any trusts related
thereto.
(e) Except as set forth on Schedule 4.12(e) hereto, no
Central Plan is a "multiemployer pension plan" (as defined in section 3(37)
of ERISA). With respect to any Central Plan that is a "multiemployer
pension plan" (as defined in section 3(37) of ERISA) covering employees of
Central, the Central Subsidiaries or any Central ERISA Affiliate, (i)
neither Central, any Central Subsidiary nor any Central ERISA Affiliate
has, since January 1, 1992 made or suffered a "complete withdrawal" or a
"partial withdrawal," as such terms are respectively defined in sections
4203 and 4205 of ERISA, (ii) no event has occurred that presents a material
risk of a partial withdrawal, (iii) neither Central, any Central Subsidiary
nor any Central ERISA Affiliate has any contingent liability under section
4204 of ERISA and no circumstances exist that present a material risk that
any such plan will go into reorganization, and (iv) the aggregate
withdrawal liability of Central, the Central Subsidiaries and the Central
ERISA Affiliates, computed as if a complete withdrawal by Central, the
Central Subsidiaries and the Central ERISA Affiliates had occurred under
each such Central Plan on the date hereof, would not exceed $25,000.
(f) Except as set forth on Schedule 4.12(f), each Central
Plan intended to be "qualified" within the meaning of Section 401(a) of the
Code has received a determination letter from the Internal Revenue Service
stating that it is so qualified, and, to the knowledge of Central and the
Central Subsidiaries, no event has occurred since the date of such
determination that would adversely affect such determination.
(g) No liability under Title IV or Section 302 of ERISA has
been incurred by Central, the Central Subsidiaries or any Central ERISA
Affiliate that has not been satisfied in full, and no condition exists that
presents a risk to Central, the Central Subsidiaries or any Central ERISA
Affiliate of incurring any such liability, other than liability for
premiums due the Pension Benefit Guaranty Corporation ("PBGC") (which
premiums have been paid when due). Insofar as the representation made in
this Section 4.12(h) applies to sections 4064, 4069 or 4204 of Title IV of
ERISA, it is made with respect to any employee benefit plan, program,
agreement or arrangement subject to Title IV of ERISA to which Central, the
Central Subsidiaries or any Central ERISA Affiliate made, or was required
to make, contributions during the five (5)-year period ending on the last
day of the most recent plan year which ended prior to the Closing Date.
(h) Except as set forth on Schedule 4.12(h), the PBGC has not
instituted proceedings to terminate any Central Plan which is subject to
Title IV of ERISA (each, a "Central Title IV Plan") and no condition exists
that presents a risk that such proceedings will be instituted.
(i) With respect to each Central Title IV Plan, the present
value of accrued benefits under such plan, based upon the actuarial
assumptions used for funding purposes in the most recent actuarial report
prepared by such plan's actuary with respect to such plan did not exceed,
as of its latest valuation date, the then current value of the assets of
such plan allocable to such accrued benefits.
(j) No Central Title IV Plan or any trust established
thereunder has incurred any "accumulated funding deficiency" (as defined in
Section 302 of ERISA and Section 412 of the Code), whether or not waived,
as of the last day of the most recent fiscal year of each Central Title IV
Plan ended prior to the Closing Date. All contributions required to be
made with respect to any Central Plan on or prior to the Closing Date have
been timely made or are reflected on Central's most current audited balance
sheet.
Section 4.13 Properties, Contracts and Other Data.
(a) Central and the Central Subsidiaries own and have good,
marketable and insurable title to the real property owned of record or
beneficially by Central or such Central Subsidiary, as the case may be (the
"Central Owned Properties"), free and clear of all mortgages, liens (except
for ad valorem real estate taxes not yet delinquent or the validity of
which are being contested in good faith, imperfections and liens that do
not materially detract from the value of or interfere with the present use
of such property), claims, pledges, security interests and other monetary
encumbrances, and free of all restrictions, easements, reservations,
covenants and other non-monetary encumbrances, except for the matters set
forth in the title policies related to the Central Owned Properties on
Schedule 4.13(a)(1) and as set forth on Schedule 4.13(b)(1). Except as set
forth on Schedule 4.13(a)(2), as of the date hereof, neither Central nor
any Central Subsidiary has received any written notice of condemnation or
suspension of its right to use with respect to any of the Central Owned
Properties, none of the Central Owned Properties is subject to condemnation
proceedings and there is not now pending or threatened, any governmental or
regulatory action or action by a private party adverse to the uses
contemplated for the Central Owned Properties by Central and the Central
Subsidiaries.
(b) Except as set forth on Schedule 4.13(b)(1), as of the
date hereof there are no (i) mortgages, indentures, loan agreements or
other borrowing agreements to which Central or any Central Subsidiary is a
party as obligor, or to which it or any of their respective owned assets or
properties is subject, which relate to indebtedness of Central or any
Central Subsidiary for borrowed money or to mortgaging, pledging or
otherwise placing a lien on any of their respective assets; (ii) guarantees
or indemnification agreements given or entered into by Central or any
Central Subsidiary with respect to indebtedness for borrowed money or in
support of obligations the principal obligor in respect of which is not
Central or any Central Subsidiary; or (iii) obligations of Holdings,
Allright or any Subsidiary outstanding as of the Closing Date and assumed
by Central or any Central Subsidiary pursuant to the Merger that require
refinancing or which Central or any Central Subsidiary will be unable to
refinance. Except as set forth on Schedule 4.13(b)(2), neither Central's
chief executive officer, chief operating officer, chief financial officer,
general counsel nor senior vice presidents have knowledge (based on
reasonable information) that any party to any contract involving the
payment by or to Central or any Central Subsidiary of more than $100,000
per annum that such party intends or has threatened to cancel, terminate or
amend such contract.
Section 4.14 Certain Tax Matters.
(a) Except as set forth in Schedule 4.14:
(i) giving effect to all extensions obtained,
each of Central and the Central Subsidiaries has timely filed (or
there has been timely filed on its behalf) all Tax Returns required to
be filed by it, and all such Tax Returns are complete in all material
respects, has paid (or there has been paid on its behalf) all Taxes
shown thereon to be due, other than such Taxes as are being contested
in good faith and has established reserves in accordance with
generally accepted accounting principles for the payment of all Taxes
for periods subsequent to the periods covered by such Tax Returns;
(ii) no material deficiency, assessment or other
formal claim for any material Taxes has been asserted by a Tax
authority against Central or any of the Central Subsidiaries that has
not been fully paid, accrued or finally settled;
(iii) neither Central nor any of the Central
Subsidiaries has been notified that any Tax Returns are currently the
subject of any Audit by any Tax authority;
(iv) no extension, waiver or comparable consent
regarding the application of the statute of limitations with respect
to any Taxes or Tax Returns has been given by or on behalf of Central
or any of the Central Subsidiaries and is currently in effect; and
(v) the income Tax Returns of Central and the
Central Subsidiaries for the taxable periods ending on or before June
30, 1992 have been examined by the appropriate Tax authority (or the
applicable statute of limitations for the assessment of Taxes for such
periods has expired) and a list of all Audits commenced and not yet
completed with respect to Central and the Central Subsidiaries is set
forth on Schedule 4.14.
Section 4.15 Compliance with Laws. Except as set forth in
Schedule 4.15, to their knowledge, each of Central and the Central
Subsidiaries;
(a) is in substantial compliance with all laws, regulations,
reporting and licensing requirements, and orders applicable to its business
or employees conducting its business;
(b) has received no notification or communication from any
agency or department of any federal, state, local or foreign government or
any regulatory authority or the staff thereof (i) asserting that Central or
any Central Subsidiary is not in compliance with any of the statutes,
regulations or ordinances which such governmental authority or regulatory
authority enforces, or (ii) threatening to revoke any license, franchise,
permit, or governmental authorization; and
(c) is not a party to any written order, decree, agreement or
memorandum of understanding with, or a commitment letter or similar
submission to, or a recipient of any extraordinary supervisory letter from,
any federal, state or local governmental agency or authority which
restricts in any material respect the conduct of business of Central and
the Central Subsidiaries; nor has Central or any Central Subsidiary been
advised by any such regulatory authority that such authority is
contemplating issuing or requesting any such order, decree, agreement,
memorandum of understanding, extraordinary supervisory letter, commitment
letter or similar submission.
Section 4.16 Environmental Laws. Except as set forth in Schedule
4.16 and to Central's knowledge:
(a) the facilities and properties owned, leased or operated
by Central or any Central Subsidiary (the "Central Properties") and all
operations at the Central Properties are in material compliance with all
applicable Environmental Laws;
(b) neither of Central nor any Central Subsidiary has
received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the properties or
the business operated by Central or any Central Subsidiary (the "Central
Business"), nor does Central have knowledge of facts that could lead to any
such notice;
(c) no judicial proceeding or governmental or administrative
action is pending or threatened, under any Environmental Law to which
Central or any Central Subsidiary is or is likely to be named as a party
with respect to the Central Properties or the Central Business, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders under any Environmental Law with respect to the
Central Properties or the Central Business;
(d) no Phase II Environmental Site Assessments have been
prepared with respect to real property owned of record or beneficially by
Central or any Central Subsidiary as of the date hereof; and
(e) access to all Phase I and Phase II Environmental Site
Assessments, and any other environmental reports or studies, prepared as of
the date hereof with respect to real property owned of record or
beneficially by Central or any Central subsidiary has been provided to
representatives of Holdings.
Central's and Central Sub's sole representations with respect to
environmental matters are set forth in this Section 4.16. To the extent
representations in other sections of this Agreement could also apply to
environmental matters including, but not limited to, matters related to,
arising under or concerning Environmental Laws, such representations shall
be construed to exclude all environmental matters and to apply to matters
other than environmental matters.
Section 4.17 Affiliate Transactions. Except as set forth in
Schedule 4.17, there is no transaction and no transaction is now proposed,
to which Central or any Central Subsidiary is or is to be a party in which
any current shareholder, director or officer or other affiliate of Central
or any Central Subsidiary has a direct or indirect interest.
Section 4.18 Labor and Employment Matters.
(a) Except as set forth in Schedule 4.18, there is no
collective bargaining agreement, other labor agreement or employment
contract to which Central or any Central Subsidiary is a party or by which
it is bound and, in the case of employment contracts, involving employees
at the city manager level or higher.
(b) Except as set forth in Schedule 4.18; (i) no labor union
or organization has been certified or recognized as a representative of any
employees of Central or any Central Subsidiary, (ii) to the knowledge of
Central, there are no current or threatened organizational activities or
demands for recognition by a labor organization seeking to represent
employees of Central or any Central Subsidiary, labor strikes, material
arbitrations or material labor grievances or difficulties and (iii) to the
knowledge of Central no such activities have occurred during the past 12
months.
Section 4.19 Insurance. All properties and operations of Central
and the Central Subsidiaries are insured for its respective benefit, in
such amounts and against such risks customarily insured against by persons
operating similar properties or conducting similar operations under valid
and enforceable policies issued by insurers of recognized responsibility.
Central does not have knowledge of any pending or threatened termination or
cancellation, coverage limitation or reduction, r material premium increase
with respect to any policy.
Section 4.20 Certain Contracts. Except as set forth on Schedule
4.20, there is no contract to which Central or any Central Subsidiary is a
party which contains any (i) non-competition or non-solicitation provision,
(ii) any earn-out or lock-out provision, or (iii) any rights to share
proceeds, rights to repurchase, contingent payment or similar provision
other than those customary revenue sharing arrangements relating to ongoing
business operations contained in ordinary course of business lease and
management agreement participation provisions.
Section 4.21 Accounting Matters. Central believes, after
discussions with KPMG Peat Marwick LLP, that Central qualifies as a
"combining company" in accordance with the criteria set forth in paragraph
46 of Accounting Principles Board Opinion No. 16 ("APB 16") and has not
violated the criteria set forth in paragraph Nos. 47c, 47d and 48c of APB
16 during the period extending from two years preceding the initiation date
of the Merger and the Closing Date.
Section 4.22 No Implied Representation. Notwithstanding anything
contained in this Article or any other provision of this Agreement, it is
the explicit intent of each party hereto that none of the Central
Stockholders, Central nor any Central Subsidiary, or any of their
respective affiliates, directors or officers is making any representation
or warranty whatsoever, express or implied, other than those
representations and warranties of the Central Stockholders, Central and
Central Sub in this Agreement, the Registration Rights Agreement or the
Transaction Support Agreements. It is understood that any estimates,
projections or other predictions contained or referred to in any Exhibit or
Schedule hereto or which otherwise have been provided to Holdings or its
representatives or affiliates are not and shall not be deemed to be
representations or warranties of Central, any Central Stockholder or any
Central Subsidiary or any of their respective affiliates. Holdings
acknowledges that there are uncertainties inherent in attempting to make
such estimates, projections and other predictions, that it is familiar with
such uncertainties, that it is taking full responsibility for making its
own evaluation of the adequacy and accuracy of all estimates, projections
and other predictions so furnished to it, and that it shall have no claim
against anyone with respect thereto.
ARTICLE V
COVENANTS
Section 5.1 Conduct of Business by Allright. During the period
from the date hereof to the Closing Date, without the prior written consent
of Central or except as contemplated by this Agreement, Holdings agrees to
cause:
(a) the business of Allright and the Subsidiaries to be
operated in the ordinary course of business consistent with past practice;
(b) no change to be made in the corporate charter or by-laws
or other constituent documents of Holdings, Allright or any Subsidiaries;
(c) except as set forth in Schedule 5.1(c) or otherwise in
the ordinary course of business consistent with past practices, (i) no
material increase in the compensation payable or to become payable by
Holdings, Allright or any Subsidiary to any officer, employee, consultant
or agent to be made (provided, that any increase in compensation payable to
any officers of Allright shall be set forth on Schedule 5.1(c),
notwithstanding that such increases were made in the ordinary course of
business), and (ii) no bonus or retirement or similar benefit or
arrangement to be made or agreed to by Holdings, Allright or any
Subsidiary;
(d) except as set forth in Schedule 5.1(d), (i) no capital
expenditure or commitment to make a capital expenditure which involves the
payment of consideration having a value in excess of $1,200,000 in the
aggregate per quarter (without duplication with clause (ii) of this
paragraph or Section 5.1(e)) (excluding payments made for key money or
fixed or capital assets in connection with the entering into or renewal of
any parking facility lease), and (ii) no lease to be entered into or
renewed which involves the payment of consideration having a value in
excess of $500,000 annual rent per year (without duplication with clause
(i) of this paragraph or Section 5.1(e)). For purposes of this paragraph,
"annual rent per year" as to a given lease shall equal (a) the average
annual rent computed in accordance with GAAP on a straight line basis with
respect to any leased facility plus (b)(x) the amount of payments made for
key money, fixed or capital assets in connection with the entering into or
renewal of such lease, divided by (y) the amount of base years with respect
to such lease. In the event that Central refuses to consent to any
proposed lease pursuant to this Section 5.1(d), Central and any Central
Subsidiary shall refrain from entering into any transaction concerning the
subject matter of such proposed lease;
(e) except as set forth in Schedule 5.1(e), no action to be
taken to by it, Allright or any Subsidiary to acquire any business (whether
by merger, consolidation, purchase of assets or otherwise) or acquire any
equity interest in any person not an affiliate (whether through a purchase
of stock, establishment of a joint venture or otherwise) which involves the
payment of consideration having a value in excess of $100,000 individually
or $1,000,000 in the aggregate (without duplication with Section 5.1(d))
with all other such acquisitions. In the event that Central refuses to
consent to any proposed transaction pursuant to this Section 5.1(e),
Central and any Central Subsidiary shall refrain from entering into a
transaction concerning the subject matter of such proposed transaction;
(f) except for borrowings under credit facilities or lines of
credit existing on the date hereof or incurred to finance expenditures or
acquisitions permitted pursuant to Section 5.1(d) or 5.1(e), it, Allright
or any Subsidiaries not to incur any indebtedness for borrowed money or
issue any debt securities or assume, guarantee or endorse, or otherwise
become responsible for the obligations of any person, or make any loans,
advances or capital contributions to, any person other than its wholly
owned subsidiaries, except in the ordinary course of business consistent
with past practice;
(g) to the extent reasonably practicable, (i) the business
organization of Allright and the Subsidiaries to remain intact and to keep
available to Central the opportunity to retain the services of the present
employees of Allright and the Subsidiaries and (ii) the goodwill of the
customers of Allright and the Subsidiaries and others having business
relations with Allright and the Subsidiaries to be preserved;
(h) no action to be taken or failed to be taken that would,
or would be reasonably likely to, result in any of Holdings'
representations and warranties set forth in this Agreement not being true
in all material respects;
(i) Allright and the Subsidiaries to use their reasonable
best efforts to comply with all material legal requirements applicable to
them and to the conduct of their respective businesses;
(j) except as set forth in Schedule 5.1(j) and after
consultation with Arthur Andersen, Holdings, Allright and the Subsidiaries
not to sell, lease transfer or dispose of any of their properties not in
the ordinary course of business and provided such sale does not, in the
reasonable opinion of Arthur Andersen, jeopardize the Merger from being
qualified as a pooling-of-interests transaction for accounting purposes;
(k) except as set forth on Schedule 5.1(k), (i) Holdings not
to declare any dividend or make any distribution with respect to its
capital stock, and (ii) Allright and the Subsidiaries not to declare any
dividend or make any distribution with respect to their capital stock or
partnership interests, as the case may be, which is not made to minority
interest holders or partners pursuant to existing agreements, or which is
not in the ordinary course of business; and
(l) in the event Central does not provide a written refusal
for Allright or any Subsidiary to enter into any proposed above transaction
within five business days after receiving notification of such proposal
(with data reasonably requested by Central to evaluate such proposal) from
Allright, Holdings or any Subsidiary, Central shall be deemed to have
consented to such proposed transaction, and Allright, Holdings or such
Subsidiary may enter into any such proposed transaction as if Central had
provided its written consent.
Section 5.2 Conduct of Business by Central. During the period from
the date hereof to the Closing Date, without the prior written consent of
Holdings or except as contemplated by this Agreement, Central agrees to
cause:
(a) the business of Central and the Central Subsidiaries to
be operated in the ordinary course of business consistent with past
practice;
(b) no change to be made in the corporate charter or by-laws
or other constituent documents of Central or any Central Subsidiaries;
(c) except as set forth in Schedule 5.2(c), no expenditure
which involves the payment of consideration having a value in excess of
$20,000,000 individually or $75,000,000 in the aggregate (without
duplication with Section 5.2(d)) in respect of the purchase or other
acquisition of real estate or fixed or capital assets to be made, except
for any such asset acquired in connection with normal replacement and
maintenance programs properly charged to current operations or pursuant to
or as required by existing contractual obligations and except as to the
renewal of presently existing leases which are scheduled to expire
according to their respective terms;
(d) except as set forth in Schedule 5.2(d), no action to be
taken to by it or any Central Subsidiaries to acquire any business (whether
by merger, consolidation, purchase of assets or otherwise) or acquire any
equity interest in any person not an affiliate (whether through a purchase
of stock, establishment of a joint venture or otherwise) which, involves
the payment of consideration having a value in excess of $20,000,000
individually or $75,000,000 in the aggregate (without duplication with
Section 5.2(c)) with all other such acquisitions. In the event that
Holdings refuses to consent to any proposed transaction pursuant to this
Section 5.1(d), Holdings, Allright and any Subsidiary shall refrain from
entering into a transaction concerning the subject matter of such proposed
transaction;
(e) except for borrowings under credit facilities or lines of
credit existing on the date hereof or incurred to finance an expenditures
or acquisitions permitted pursuant to Section 5.2(d) or 5.2(e), or pursuant
to the transactions contemplated by this Agreement, it, or any Central
Subsidiary not to incur any indebtedness for borrowed money or issue any
debt securities or assume, guarantee or endorse, or otherwise become
responsible for the obligations of any person, or make any loans, advances
or capital contributions to, any person other than its wholly owned
subsidiaries, except in the ordinary course of business consistent with
past practice;
(f) no action to be taken or failed to be taken that would,
or would be reasonably likely to, result in any of Central's and Central
Sub's representations and warranties set forth in this Agreement not being
true in all material respects;
(g) Central and the Central Subsidiaries to use their
reasonable best efforts to comply with all material legal requirements
applicable to them and to the conduct of their respective businesses;
(h) except as set forth in Schedule 5.2(h) and after
consultation with KPMG Peat Marwick LLP, Central and the Central
Subsidiaries not to sell, lease transfer or dispose of any of their
properties to the extent such sale may, in the reasonable opinion of KPMG
Peat Marwick LLP, jeopardize the Merger from being qualified as a pooling-
of-interests transaction for accounting purposes;
(i) other than regular quarterly dividends distributed in the
normal course of business, Central not to (i) declare, set aside or pay any
dividends on (whether in cash, stock or other securities), make any other
distributions in respect of, or enter into any agreement with respect to
the voting of, any of its capital stock or the capital stock, partnership
interests, membership interests or other equity, as the case may be, of the
Central Subsidiaries, or (ii) split, combine, issue, authorize for
issuance, exchange or reclassify any of its capital stock or issue or
authorize the issuance of any other securities, except for issuances of
Central Common Stock to a seller or sellers for acquisitions permitted
under Section 5.2(d), upon the exercise of any stock options for Central
Common Stock that are, in each case, outstanding as of the date hereof in
accordance with their present terms or the issuance of Central Common Stock
or Central Options under any Plans in the ordinary course of business; and
(j) in the event Holdings does not provide a written refusal
for Central or any Central Subsidiary to enter into any transaction above
within five business days after receiving notification of such proposal
(with data reasonably requested by Holdings to evaluate such proposal) from
Central or any Central Subsidiary, Holdings shall be deemed to have
consented to such proposed transaction (other than transactions pursuant to
paragraph (i), for which affirmative consent is necessary) and Central or
such Central Subsidiary may enter into any such proposed transaction as if
Holdings had provided written consent.
Section 5.3 Preparation of the Form S-4 and the Proxy Statement;
Stockholders Meetings.
(a) As soon as practicable following the date of this
Agreement, Central shall prepare and file with the SEC a proxy
statement/prospectus relating to the meeting of Central's shareholders to
be held in connection with obtaining the Central Shareholder Approval (as
the same may be amended or supplemented from time to time, the "Proxy
Statement") and Central shall prepare and file with the SEC a registration
statement on Form S-4 in connection with the issuance of Central Common
Stock pursuant to the Merger (as the same may be amended or supplemented
from time to time, the "Form S-4"), in which the Proxy Statement will be
included as a prospectus. Central shall use its reasonable best efforts to
have the Form S-4 declared effective under the Securities Act as promptly
as practicable after such filing. Central will use its reasonable best
efforts to cause the Proxy Statement to be mailed to the holders of Central
Common Stock as promptly as practicable after the Form S-4 is declared
effective under the Securities Act. Central shall also take any action
(other than qualifying to do business in any jurisdiction in which it is
not now so qualified or to file a general consent to service of process)
required to be taken under any applicable state securities laws in
connection with the issuance of the Central Common Stock in the Merger, and
Holdings shall furnish all information concerning Holdings and the holders
of Holdings Common Stock as may be reasonably requested in connection with
any such action. No filing of, or amendment or supplement to, the Form S-4
or the Proxy Statement will be made by Central without providing Holdings
and counsel to Holdings with the opportunity to review and comment thereon.
Central will advise Holdings, promptly after it receives notice thereof, of
the time when the Form S-4 has become effective or any supplement or
amendment has been filed, the issuance of any stop order, the suspension of
the qualification of the Central Common Stock issuable in connection with
the Merger for offering or sale in any jurisdiction, or any request by the
SEC for amendment of the Proxy Statement or the Form S-4 or comments
thereon and responses thereto or requests by the SEC for additional
information. If at any time prior to the Effective Time any information
relating to Central or Holdings, or any of their respective affiliates,
officers or directors, should be discovered by Central or Holdings which
should be set forth in an amendment or supplement to any of the Form S-4 or
the Proxy Statement, so that any of such documents would not include any
misstatement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, the party which discovers such
information shall promptly notify the other parties hereto and an
appropriate amendment or supplement describing such information shall be
promptly filed with the SEC and, to the extent required by law,
disseminated to the stockholders of Central.
(b) Central shall, as promptly as reasonably practicable
after the date hereof give notice of, convene and hold a meeting of its
stockholders (the "Central Stockholders Meeting") in accordance with the
Tennessee Business Corporation Act (the "Tennessee Act") and the
requirements of the NYSE for the purpose of obtaining Central's stockholder
approval in accordance with the Tennessee Act and the rules and regulations
of the NYSE and shall, through its Board of Directors, recommend to its
shareholders that they provide the Central Shareholder Approval.
(c) As an integral part of their obligations under the
Registration Rights Agreement, Central will use its reasonable best efforts
to comply with the provisions of Rule 144(c) under the Securities Act in
order that affiliates of Holdings may resell the Central Common Stock they
receive pursuant to the Merger pursuant to Rule 145(d) under the Securities
Act, and agrees that the Form S-4 will include such information as may be
requested by Holdings to permit resales of such Central Common Stock by
persons who may be deemed to be underwriters of Central Common Stock
pursuant to Rule 145 under the Securities Act.
(d) Holdings shall, as promptly as practicable after the
mailing of the Proxy Statement by Central, either (i) give notice of,
convene and hold a meeting of its stockholders in accordance with the
Delaware General Corporation Law (the "Delaware Act") or (ii) obtain an
action by written consent, executed by the requisite percentage of Holdings
stockholders and in accordance with the Delaware Act, for the purpose of
obtaining Holdings' stockholders approval in connection with the Merger in
accordance with the Delaware Act.
Section 5.4 Investigation; Non-Solicitation. Each of Central and
Holdings shall afford to one another's officers, employees, accountants,
counsel and other authorized representatives reasonable access during
normal business hours throughout the period prior to the Effective Time or
the date of termination of this Agreement, to its and its respective
subsidiaries' properties, contracts, commitments, books and records and any
report, schedule or other document filed or received by it during such
period pursuant to the requirements of federal or state securities laws and
shall use its reasonable best efforts to cause its respective
representatives to furnish promptly to one another such additional
financial and operating data and other information as to its and its
subsidiaries' respective businesses and properties as the other or its duly
authorized representatives may from time to time reasonably request in
writing; provided, however, that nothing herein shall require either
Central or Holdings or any of their respective subsidiaries to disclose any
information to the other if such disclosure would cause competitive harm to
such disclosing party (in such party's reasonable judgment) or its
affiliates if the transactions contemplated by this Agreement are not
consummated, or would be in violation of applicable laws or regulations of
any governmental entity; provided further, that notwithstanding the above,
Holdings shall allow Central and its representatives reasonable access to
information concerning, and Holdings agrees to meet with Central and its
representatives in connection with, (i) any $50,000 Leases, which according
to their respective terms are scheduled to expire within six months from
any time prior to the Closing Date, (ii) any $50,000 Lease for which
Allright or any Subsidiary has knowledge (based on reasonable information)
that the respective landlord has asserted or has threatened to assert a
breach of any consent or assignment provision contained in such lease as a
result of the Merger, and (iii) the retention of key management personnel.
A representative appointed by Holdings shall be present at any meeting
between Holdings, Allright, the Subsidiaries or any of their respective
employees, directors and officers, on the one hand, and Central, any of the
Central Subsidiaries or any of their respective employees, directors and
officers, on the other hand. Unless otherwise required by law and until
the Effective Time, the parties will hold any such information which is
nonpublic in confidence in accordance with the provisions of the
Confidentiality Agreements between Central and Holdings, dated as of
January 30, 1998 and May 19, 1998 (the "Confidentiality Agreements"). AEW
and Apollo agree to reasonably cooperate, at Central's request and expense,
in connection with the retrieval of records or other documentation which
AEW and Apollo have in their possession regarding Allright's ability to
utilize any net operating loss carry-forwards.
Section 5.5 Approvals and Consents; Cooperation; Notification.
(a) The parties hereto shall use their respective best
efforts, and cooperate with each other, to obtain as promptly as
practicable all governmental and third party authorizations, approvals,
consents or waivers required in order to consummate the transactions
contemplated by this Agreement, including, without limitation, the Merger.
(b) The parties shall take all actions necessary to file as
soon as practicable all notifications, filings and other documents required
to obtain all governmental authorizations, approvals, consents or waivers,
including, without limitation, under the HSR Act, and to respond as
promptly as practicable to any inquiries received from the Federal Trade
Commission, the Antitrust Division of the Department of Justice and any
other governmental entity for additional information or documentation and
to respond as promptly as practicable to all inquiries and requests
received from any State Attorney General or other governmental entity in
connection therewith.
(c) If any divesture of property or operations at a
particular parking facility is necessary in order to terminate the waiting
period required by the HSR Act in connection with the Merger, Central and
Holdings shall retain a mutually agreeable real estate appraisal firm (the
"Appraiser") for the purpose of appraising those facilities or operations
which must be divested in order to obtain termination of the HSR waiting
period. In connection therewith, the Equity Purchase Price set forth in
Section 2.6(b) shall be adjusted for any Divesture Gain or Divesture Loss.
"Divesture Gain" shall be computed as follows: thirty-five percent
multiplied by the difference between (a) the appraised value of such
property or operations, as determined by the Appraiser, and (b) (i) 16,
multiplied by (ii) the EBITDA for such property or operations at such
facility for such property's or facility's prior fiscal year. If such
number shall be a negative number, such amount shall be deemed a "Divesture
Loss" for purposes of Section 2.6(b).
Section 5.6 Central Board of Directors. Promptly after the
Effective Time, the Board of Directors of Central (the "Central Board")
shall be expanded to ten members. At such time, Apollo and AEW shall each
be entitled, in its sole discretion, to designate one individual to the
Central Board, who shall serve in accordance with and for the time period
specified by the Certificate of Incorporation and By-laws of Central. If
at any time Apollo or AEW, with their respective affiliates, individually
own, directly or indirectly, less than (i) $50,000,000 worth of outstanding
Central Common Stock, Central shall, at the next election of the Central
Board, have the right to decrease the number of appointees to the Central
Board that may be made by the shareholder failing to meet such threshold
from one to none. For purposes of the foregoing, the value of the Central
Common Stock held by Apollo and AEW, together with their respective
affiliates, shall be determined by multiplying the number of shares of
Central Common Stock then beneficially owned by such holders by the average
of the closing sale prices per share of Central Common Stock on the NYSE
for the prior 20 trading days. This Section 5.6 is intended to be for the
benefit of Apollo and AEW.
Section 5.7 Public Announcements. Other than disclosures required
by federal securities laws, the parties will consult with each other before
issuing any press release or otherwise making any public statement with
respect to this Agreement and the transactions contemplated hereby and
shall not make any such announcement if the other party hereto shall
reasonably object.
Section 5.8 Tax Treatment of Merger. It is the intent of the
parties to this Agreement that the Merger be treated for federal income tax
purposes as a tax-free reorganization pursuant to Section 368(a) of the
Code and this Agreement shall constitute a "Plan of Reorganization" for
purposes of the Code, and the parties agree (i) not to take any actions
which would prevent the Merger from qualifying as such a reorganization,
(ii) to report the transactions under this Agreement consistent with such
treatment and (iii) to take no positions that are contrary thereto unless
otherwise required by law.
Section 5.9 Expenses; Severance. All out-of-pocket transaction
costs and expenses incurred by Central or any Central Subsidiary in
connection with this Agreement and the transactions contemplated hereby,
whether or not the Merger is consummated, shall be paid by Central, and all
Covered Transaction Expenses incurred by Allright, any Subsidiary,
Holdings, AEW and Apollo in connection with this Agreement and the
transactions contemplated hereby, if the Merger is consummated, shall be
paid by Holdings, and if the Merger is not consummated, Allright, the
Subsidiaries, Holdings, AEW and Apollo shall be responsible for their own
expenses incurred in connection with this Agreement and the transactions
contemplated hereby. Notwithstanding the foregoing, if the Merger is not
consummated solely by reason of a material breach of this Agreement by
Holdings, Holdings shall pay any and all out-of-pocket transaction costs
and expenses incurred in connection with this Agreement and the
transactions contemplated hereby of Central and Central Sub up to a maximum
of $5,000,000 and if the Merger is not consummated solely by reason of a
material breach of this Agreement by Central, Central shall pay any and all
out-of-pocket transaction costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby of Allright, any
Subsidiary, Holdings, AEW and Apollo up to a maximum of $5 million. AEW
and Apollo shall be solely responsible for any payments required to be made
to Cheslock, Bakker & Associates, Inc. ("Cheslock Bakker"), other than with
respect to the exchange of Holdings Warrants held by Cheslock Bakker for
Central Warrants as provided in Section 2.5(e). Notwithstanding anything
to the contrary herein, if the Merger is not consummated as a result of the
fact that either Section 6.2(g) or Section 6.3(f) shall not have been
satisfied, the party whose accountant was unable to deliver its pooling
letter as required therein shall pay to the other party an amount of $2.5
million for expenses incurred in connection with the execution of this
Agreement; provided, neither party shall be liable for such expenses if it
had not breached a representation, warranty or covenant herein. Nothing in
this Section 5.9 is intended to limit the rights of the parties hereto
under Section 7.2. If the Merger is consummated, Central shall be solely
responsible for any obligation and payment to be made under any severance
agreement, retention agreement, stay-on bonus, non-compete agreement,
compensation plan or severance or retention provision of any employment,
non-compete or retention agreement set forth on Schedules 3.12(a), 3.20,
5.9(a), 5.9(b) or 5.10 which is incurred as a result of the entering into
of this Agreement, including but not limited to payments required to be
made immediately after the Effective Time pursuant to the retention bonus
agreements set forth on Schedule 5.9(a). Holdings shall use its reasonable
best efforts after the date hereof so that the persons listed on Schedule
5.9(a) will enter into the retention bonus agreements substantially in the
form set forth on such Schedule 5.9(a) and that immediately after the
Effective Time, the persons listed on Schedules 5.9(b) and 5.9(c) will
enter into employment agreements and management continuity agreements with
Allright substantially in the form set forth on Schedules 5.9(b) and
5.9(c), respectively, and Central shall cause Allright to enter into such
employment agreements and management continuity agreements at such time.
Any material modifications to the form retention agreement, employment
agreement and management continuity agreement set forth on Schedules
5.9(a), 5.9(b) and 5.9(c), respectively, shall be subject to the prior
approval of Central and Holdings.
Section 5.10 Employment Matters.
(a) Central hereby agrees to honor the Plans in accordance
with their terms as in effect on the date hereof, to the same extent that
Holdings, Allright and the Subsidiaries would be required to perform them
in the event that the Merger were not consummated. This Section 5.10(a) is
intended to be for the benefit of the beneficiaries of the Plans.
(b) Central shall honor, comply with and perform all of the
respective terms and all obligations of Holdings, Allright or the
Subsidiaries under any severance agreement, retention agreement, employment
agreement or any severance or retention provision of any employment
agreement set forth on Schedule 5.10. This Section 5.10(b) is intended to
be for the benefit of the employees party to such agreements. Central
agrees to provide severance to those employees of Allright or any
Subsidiary which will be terminated after the Closing Date and which do not
have severance agreements or severance provisions in any employment
agreements in effect with Holdings, Allright or any Subsidiary as of the
Closing Date on terms not less favorable than it would provide to any of
its or the Central Subsidiaries' similarly situated employees.
(c) Central agrees that individuals who are employed by
Holdings, Allright or the Subsidiaries immediately prior to the Closing
Date shall remain employees of the Surviving Corporation immediately
following the Closing Date (each such employee, an "Affected Employee");
provided, however, that nothing in this Section 5.10(c) shall limit or
otherwise restrict the ability of the Surviving Corporation to terminate,
lay-off or reduce the work hours with respect to the employment of any
Affected Employees following their initial continued employment following
the Effective Time.
(d) Central shall, or shall cause the Central Subsidiaries or
the Surviving Corporation to, give Affected Employees full credit, for
purposes of eligibility, vesting, benefit accrual and determination of the
level of benefits under any employee benefit plans or arrangements
maintained by Central or the Central Subsidiaries or the Surviving
Corporation, for such Affected Employees' service with Holdings, Allright
or the Subsidiaries to the same extent recognized by the Holdings, Allright
and the Subsidiaries immediately prior to the Closing Date, provided
however that the Affected Employees' eligibility to participate in, and
benefits under, such plans and arrangements shall otherwise be determined
under the terms of such plans.
(e) Central shall, or shall cause the Central Subsidiaries or
the Surviving Corporation to, (i) waive all limitations as to preexisting
conditions exclusions and waiting periods with respect to participation and
coverage requirements applicable to the Affected Employees under any
welfare benefit plans that such employees may be eligible to participate in
after the Closing Date, other than limitations or waiting periods that are
already in effect with respect to such employees and that have not been
satisfied as of the Closing Date under any welfare plan maintained for the
Affected Employees immediately prior to the Closing Date and (ii) provide
each Affected Employee with credit for any co-payments and deductibles paid
prior to the Closing Date in satisfying any applicable deductible or out-
of-pocket requirements under any welfare plans that such employees are
eligible to participate in after the Closing Date.
(f) For a period of two years immediately following the
Closing Date, the coverage and benefits provided to Affected Employees
pursuant to employee benefit plans or arrangements maintained by Central or
the Central Subsidiaries or the Surviving Corporation shall be, in the
aggregate, not less favorable than those provided to similarly situated
employees of Central and the Central Subsidiaries and the Surviving
Corporation.
Section 5.11 Indemnification, Exculpation and Insurance.
(a) Central and Central Sub agree that all rights to
indemnification and exculpation from liabilities for acts or omissions
occurring at or prior to the Effective Time now existing in favor of the
current or former directors, officers, employees or agents of Holdings,
Allright and the Subsidiaries as provided in their respective certificates
of incorporation or by-laws (or comparable organizational documents) and
any indemnification agreements or arrangements of Holdings, Allright or any
Subsidiary the existence of which does not cause a breach of this Agreement
shall be assumed by Central, shall survive the Merger and shall continue in
full force and effect, without amendment, for six years after the Effective
Time; provided, however, that all rights to indemnification in respect of
any claim asserted or made within such period shall continue until the
final disposition of such claim. Central shall cooperate in the defense of
any such matter. In addition, from and after the Effective Time, directors
or officers of Holdings, Allright or any Subsidiary who become directors or
officers of Central or any Central Subsidiary will be entitled to the same
indemnity rights and protections as are afforded to other directors and
officers of Central or such Central Subsidiary.
(b) In the event that either of the Surviving Corporation or
Central or any of its successors or assigns (i) consolidates with or merges
into any other person and is not the continuing or surviving corporation or
entity of such consolidation or merger or (ii) transfers or conveys all or
substantially all of its properties and assets to any person, then, and in
each such case, proper provision will be made so that the successors and
assigns of Central or the Surviving Corporation, as applicable, will assume
the obligations thereof set forth in this Section 5.11.
(c) The provisions of this Section 5.11 (i) are intended to
be for the benefit of, and will be enforceable by, each indemnified party,
his or her heirs and his or her representatives and (ii) are in addition
to, and not in substitution for, any other rights to indemnification or
contribution that any such person may have by contract or otherwise.
(d) For six years after the Effective Time, Central or the
Surviving Corporation shall maintain in effect Holdings' and Allright's
current directors' and officers' liability insurance covering acts or
omissions occurring prior to the Effective Time with respect to those
persons who are currently covered by such directors' and officers'
liability insurance policy on terms with respect to such coverage and
amount no less favorable in the aggregate currently covered by such
insurance than those of such policy in effect on the date hereof; provided
that Central may substitute therefor policies of Central or the Central
Subsidiaries containing terms with respect to coverage and amount no less
favorable to such directors or officers or, in the alternative, Central may
purchase a "tail" on Holdings' existing insurance policy for a term of not
less than six years.
(e) Central shall cause the Surviving Corporation or any
successor thereto to comply with its obligations under this Section 5.11.
(f) This Section 5.11 is intended to be for the benefit of
such directors and officers.
Section 5.12 NYSE Exchange Listings. Central shall use best
efforts to cause the Central Common Stock issuable under pursuant to the
Merger to be approved for listing on the NYSE, subject to official notice
of issuance, as promptly as practicable after the date hereof, and in any
event prior to the Closing Date.
Section 5.13 Affiliates.
(a) Holdings and Central will use their reasonable best
efforts to cause all persons who, at the time of the Central Stockholders
Meeting, may be deemed to be affiliates of Holdings as that term is used
under Rule 145 under the Securities Act and who will become the beneficial
owners of Central Common Stock pursuant to the Merger, or affiliates of
Holdings or Central for purposes of qualifying the Merger for pooling of
interests accounting treatment under Opinion 16 of the Accounting
Principles Board and applicable SEC rules and regulations, to execute
"affiliate letters" in customary form prior to the Effective Time.
(b) Central shall use its reasonable best efforts to publish
on the earliest possible date after the end of the first month after the
Effective Time in which there are at least 30 days of post-Merger combined
operations (which month may be the month in which the Effective Time
occurs), combined sales and net income figures as contemplated by and in
accordance with the terms of SEC Accounting Series Release No. 135.
(c) This Section 5.13 is intended to be for the benefit of
affiliates of Holdings.
Section 5.14 Pooling of Interests. Each of Holdings and Central
shall use reasonable best efforts to cause the transactions contemplated by
this Agreement and the Registration Rights Agreement, including the Merger,
to be accounted for as a pooling of interests under Opinion 16 of the
Accounting Principles Board and applicable SEC rules and regulations, and
such accounting treatment to be accepted by Central's accountants and by
the SEC, and each of Holdings and Central agrees that it shall take no
action that would cause such accounting treatment not to be obtained.
Central shall, if necessary, take any action required on its part to permit
the Central Stockholders to comply with their obligations under the
Transaction Support Agreements in connection with obtaining pooling-of-
interests accounting treatment for the Merger. Any breach by the Central
Stockholders under the Transaction Support Agreements with respect to such
obligations shall be deemed a breach of this Section 5.14 by Central.
Section 5.15 Conveyance Taxes. Holdings and Central shall
cooperate in the preparation, execution and filing of all returns,
questionnaires, applications or other documents regarding any real property
transfer or gains, sales, use, transfer, value added, stock transfer and
stamp taxes, any transfer, recording, registration and other fees or any
similar taxes which become payable in connection with the transactions
contemplated by this Agreement that are required or permitted to be filed
on or before the Effective Time. Holdings shall pay any such taxes or fees
imposed by any governmental entity, which become payable in connection with
the transactions contemplated by this Agreement, on behalf of the
respective shareholders of Holdings and Central.
Section 5.16 Registration Rights Agreement. Central shall not
amend the Registration Rights Agreement, or agree to give the Central
Stockholders additional registration rights at any time that AEW or Apollo
shall have registration rights under the Registration Rights Agreement,
without the prior written consent of AEW and Apollo.
Section 5.17 Restructuring Agreement. Central agrees to cause the
parties to the Restructuring Agreement, dated as of the date hereof, by and
among Edison Parking Management, L.P., Allright, AParkco, Inc., Allright
Parking Management, Inc., AParkco Finance, Inc., Allright New York Parking,
Inc., Edison Parking Corp., Park Fast Parking Management L.P. and Edison
Leasing Management Company, LLC, which it shall directly or indirectly
control at or following the Effective Time, to consummate the transactions
contemplated therein.
ARTICLE VI
CONDITIONS TO CONSUMMATION OF THE MERGER
Section 6.1 Conditions to Each Party's Obligations to Effect the
Merger. The respective obligations of each party to effect the Merger are
subject to the satisfaction or, where permissible, waiver at or prior to
the Effective Time, of each of the following conditions:
(a) the Central Shareholder Approval shall have been
obtained;
(b) none of Holdings, Allright, Central or Central Sub shall
be subject to any order, decree, ruling or other action of a court of
competent jurisdiction which restrains, delays or otherwise prohibits the
transactions contemplated by this Agreement;
(c) the Form S-4 shall have become effective (reflecting
pooling-of-interests accounting treatment) under the Securities Act prior
to the mailing of the Proxy Statement by Central and no stop order or
proceedings seeking a stop order shall have been entered or be pending by
the SEC;
(d) the shares of Central Common Stock issuable to the
Holdings' stockholders pursuant to the Merger shall have been approved for
listing on the NYSE, subject to official notice of issuance; and
(e) any waiting period applicable to the consummation of the
Merger under the HSR Act shall have expired or been terminated.
Section 6.2 Conditions to the Obligations of Central to Effect the
Merger. The obligations of Central and Central Sub to effect the Merger
shall be subject to the fulfillment at or prior to the Effective Time of
the following conditions:
(a) The representations and warranties of Holdings set forth
in this Agreement (without taking into account any qualifications as to
materiality contained in such representations and warranties) shall be true
and correct when made and as of the Closing Date (except to the extent that
any such representation and warranty had by its terms been made as of a
specific date, in which case such representation and warranty shall be true
and correct as of such date), and Holdings, Allright and the Subsidiaries
shall have performed the obligations to be performed by each under this
Agreement prior to the Closing Date, except where the failure to be so true
and correct, and all failures to perform and comply with such obligations
(without taking into account any qualifications as to materiality contained
in such representations, warranties, covenants and agreements), does not
and will not have, in the aggregate, a Holdings Material Adverse Effect.
Any information delivered by Holdings to Central prior to the Effective
Time for attachment to the schedules to bring down the representations and
warranties contained herein on the Closing Date which supplements or
updates any schedule previously delivered shall be used for determining if
any representation or warranty set forth in this Agreement is true and
correct on the Closing Date and for determining if Central had knowledge of
a particular fact as of the Closing Date, in each case, for purposes of
Central's ability to seek indemnification under Article VIII, provided that
the supplemented or updated schedule shall not be used for determining if
any representation or warranty set forth in this Agreement shall have been
true on the date hereof, and provided further that the updating or
supplementing of any schedule shall not limit Central's rights under
Section 6.2(a) and Section 6.2(b) herein. The updating of any schedule
shall not be deemed an admission by Holdings that it has breached any
representation or warranty contained herein.
(b) There shall not have occurred any Holdings Material
Adverse Effect since the date of this Agreement.
(c) Central shall have received a certificate to the effect
that the conditions set forth in Section 6.2 (a) and 6.2(b) have been
satisfied signed on behalf of Holdings by an officer of Holdings.
(d) Central shall have received an opinion from KPMG Peat
Marwick LLP, tax counsel to Central, in form and substance reasonably
satisfactory to Central, dated as of the Closing Date, substantially to the
effect that, on the basis of facts, representations, and assumptions set
forth in such opinion that are consistent with the state of facts existing
at the Effective Time, the Merger will be treated for federal income tax
purposes as a reorganization within the meaning of Section 368(a) of the
Code and that accordingly:
(i) no gain or loss will be recognized by
Central, Holdings or Central Sub as a result of the Merger;
(ii) no gain or loss will be recognized by the
stockholders of Holdings on the exchange of their Holdings Common
Stock for Central Common Stock pursuant to the Merger (except with
respect to cash received in lieu of a fractional share interest in
Central Common Stock); and
(iii) the tax basis of the Central Common
Stock received by shareholders who exchange their Holdings Common
Stock for Central Common Stock in the Merger will be the same as the
tax basis of Holdings Common Stock surrendered in exchange therefor
(reduced by any amount allocable to a fractional share interest for
which cash is received).
In rendering such opinion, Central's counsel may require and rely upon
representations and covenants including those contained in certificates of
officers of Central, Central Sub, Holdings and others, including
certificates substantially in the form of Exhibits A and B.
(e) Central shall have received an opinion from Skadden,
Arps, Slate, Meagher & Flom LLP, counsel to Holdings, in form and substance
reasonably satisfactory to Central and its counsel.
(f) Holdings shall have delivered to Central Allright's
audited financial statements prepared in accordance with GAAP for the
fiscal year ended June 30, 1998.
(g) Holdings shall have provided to Central a letter from
Arthur Andersen, stating their belief that Holdings qualifies as a
"combining company" in accordance with the criteria set forth in paragraph
46 of Accounting Principles Board Opinion No. 16 ("APB 16") and has not
violated the criteria set forth in paragraph Nos. 47c, 47d and 48c of APB
16 during the period extending from two years preceding the initiation date
of the Merger and the Closing Date, and KPMG Peat Marwick LLP shall have
delivered a letter to Central, stating their belief that there are no
conditions which exist which would preclude Central from accounting for the
Merger as a pooling-of-interests pursuant to APB 16, provided, that if KPMG
Peat Marwick LLP does not provide such letter to Central, KPMG Peat Marwick
LLP must deliver a letter to Central (and Central shall immediately deliver
such letter to Holdings) stating its belief as to what condition exists
which would preclude Central from accounting for the Merger as a pooling-
of-interests pursuant to APB 16, and in such letter also state what facts,
if any, have changed since the later of the date hereof and the date on
which the Proxy Statement was mailed to Central's shareholders pursuant to
Section 5.3 to cause KPMG Peat Marwick LLP to change its belief with
respect to such issues and why, in its reasonable opinion, Central cannot
take actions to cure such pooling issues.
(h) AEW and Apollo shall have executed and delivered to
Central the Noncompetition Agreement, substantially in the form of Exhibit
C.
Section 6.3 Conditions to the Obligations of Holdings to Effect
the Merger. The obligations of Holdings to effect the Merger shall be
subject to the fulfillment at or prior to the Effective Time of the
following conditions:
(a) The representations and warranties of Central and Central
Sub set forth in this Agreement (without taking into account any
qualifications as to materiality contained in such representations and
warranties) shall be true and correct when made and as of the Closing Date
(except to the extent that any such representation and warranty had by its
terms been made as of a specific date, in which case such representation
and warranty shall be true and correct as of such date), and Central,
Central Sub and the Central Subsidiaries shall have performed the
obligations to be performed by each under this Agreement prior to the
Closing Date, except where the failure to be so true and correct, and all
failures to perform and comply with such obligations (without taking into
account any qualifications as to materiality contained in such
representations, warranties, covenants and agreements), does not and will
not have, in the aggregate, a Central Material Adverse Effect. Any
information delivered by Central to Holdings prior to the Effective Time
for attachment to the schedules to bring down the representations and
warranties contained herein on the Closing Date which supplements or
updates any schedule previously delivered shall be used for determining if
any representation or warranty set forth in this Agreement is true and
correct on the Closing Date and for determining if Holdings had knowledge
of a particular fact as of the Closing Date, in each case, for purposes of
Holdings ability to seek indemnification under Article VIII, provided that
the supplemented or updated schedule shall not be used for determining if
any representation or warranty set forth in this Agreement shall have been
true on the date hereof, and provided further that the updating or
supplementing of any schedule shall not limit Holding's rights under
Section 6.3(a) and Section 6.3(b) herein. The updating of any schedule
shall not be deemed an admission by Central that its has breached any
representation or warranty contained herein.
(b) There shall not have occurred any Central Material
Adverse Effect since the date of this Agreement.
(c) Holdings shall have received a certificate to the effect
that the conditions set forth in the foregoing clauses (a) and (b) have
been satisfied signed on behalf of Central and Central Sub by an officer of
Central and Central Sub, respectively.
(d) Holdings shall have received an opinion from Skadden,
Arps, Slate, Meagher & Flom LLP, counsel to Holdings, in form and substance
reasonably satisfactory to Holdings, dated as of the Closing Date,
substantially to the effect that, on the basis of facts, representations,
and assumptions set forth in such opinion that are consistent with the
state of facts existing at the Effective Time, the Merger will be treated
for federal income tax purposes as a reorganization within the meaning of
Section 368(a) of the Code and that accordingly:
(i) no gain or loss will be recognized by
Central, Holdings or Central Sub as a result of the Merger;
(ii) no gain or loss will be recognized by the
stockholders of Holdings on the exchange of their Holdings Common
Stock for Central Common Stock pursuant to the Merger (except with
respect to cash received in lieu of a fractional share interest in
Central Common Stock); and
(iii) the tax basis of the Central Common
Stock received by shareholders who exchange their Holdings Common
Stock for Central Common Stock in the Merger will be the same as the
tax basis of Holdings Common Stock surrendered in exchange therefor
(reduced by any amount allocable to a fractional share interest for
which cash is received).
In rendering such opinion, Skadden, Arps, Slate, Meagher & Flom LLP may
require and rely upon representations and covenants including those
contained in certificates of officers of Central, Central Sub, Holdings and
others, including certificates substantially in the form of Exhibits A and
B.
(e) Allright shall have received an opinion from Harwell,
Howard, Hyne, Gabbert & Manner, P.C., counsel to Central, in form and
substance reasonably satisfactory to Holdings and its counsel.
(f) Central shall have provided to Holdings a letter from
KPMG Peat Marwick LLP, stating their belief that no condition exists which
would preclude Central from accounting for the Merger as a pooling-of-
interests pursuant to APB 16, and Arthur Andersen shall have delivered a
letter to Holdings, stating their belief that Holdings qualifies as a
"combining company" in accordance with the criteria set forth in paragraph
46 of APB 16 and has not violated the criteria set forth in paragraph Nos.
47c, 47d and 48c of APB 16 during the period extending from two years
preceding the initiation date of the Merger and the Closing Date, provided,
that if Arthur Andersen does not provide such letter to Holdings, Arthur
Andersen must deliver a letter to Holdings (and Holdings shall immediately
deliver such letter to Central) stating its belief as to why Holdings does
not qualify as a "combining company" in accordance with the criteria set
forth in paragraph 46 of APB 16 or its belief as to how Holdings has
violated the criteria set forth in paragraph Nos. 47c, 47d and 48c of APB
16 during the period extending from two years preceding the initiation date
of the Merger and the Closing Date, as the case may be, and in such letter
also state what facts, if any, have changed since the later of the date
hereof and the date on which the Proxy Statement was mailed to Central's
shareholders pursuant to Section 5.3 to cause Arthur Andersen to change its
belief with respect to such issues and why, in its reasonable opinion,
Holdings cannot take actions to cure such pooling issues.
ARTICLE VII
TERMINATION; NON-CONSUMMATION
Section 7.1 Termination. This Agreement may be terminated at any
time prior to the Closing:
(a) by mutual agreement of all of the parties hereto;
(b) by Holdings or Central upon notice given to the other in
the event that the other shall, contrary to the terms of this Agreement,
fail or refuse to consummate the transactions contemplated hereby or to
take any other action referred to herein necessary to consummate the
transactions contemplated hereby, after affording such defaulting party a
thirty-day period after notice in which to cure;
(c) by Holdings or Central upon notice given to the other if
the Closing shall not have taken place on or before 120 days after the date
hereof (or such later date as Holdings and Central shall have agreed);
provided that the failure of the Closing to occur on or before such date is
not the result of the breach of the covenants, agreements, representations
or warranties hereunder of the party seeking such termination, and provided
further that if the Closing has not taken place due solely to the fact that
the waiting period under the HSR Act shall not have expired or been
terminated, the 120 days referred to above may be extended at the option of
either Holdings or Central for an additional 60 days, and, provided further
that to the extent the SEC has not declared the Form S-4 effective on or
before 120 days after the date hereof solely as a result of the fact that
Holdings had not delivered to Central audited financial statements for the
fiscal year ended June 30, 1998 prior to September 30, 1998, the 120 days
shall be extended by the number of days after September 30, 1998 that such
financial statements were delivered; or
(d) by Holdings or Central upon written notice to the other
party if any court or governmental authority of competent jurisdiction
shall have issued a final permanent order, enjoining or otherwise
prohibiting the transactions contemplated by this Agreement.
Section 7.2 Effect of Termination, Non-Competition.
(a) In the event of the termination of this Agreement as
provided in Section 7.1, this Agreement shall forthwith become wholly void
and of no further force and effect and, other than in the event of a
termination pursuant to Section 7.1(b), there shall be no liability on the
part of any of the parties hereto (except as set forth in this Section and
Sections 5.9 and 9.4), or their respective officers or directors. In the
event of the termination of this Agreement pursuant to Section 7.1(b), the
terminating party shall be indemnified by the other party for any or all
damages, costs and expenses sustained or incurred as a result of such
termination. The obligations of the parties to this Agreement under
Sections 5.4, 5.9, 9.4 and this Section shall survive any such termination.
The terms of the Confidentiality Agreements between Central and Holdings,
dated January 30, 1998 and May 19, 1998, shall survive according to the
terms contained therein, notwithstanding the termination of this Agreement,
provided that the terms of the Confidentiality Agreement may be enforced on
behalf of Holdings and Allright by AEW and Apollo.
(b) Central shall not use any of the information obtained
with respect to Holdings, Allright or any Subsidiary or any landlord of a
property leased or managed by Holdings, Allright or any Subsidiary to
compete, directly or indirectly, with Holdings, Allright or any Subsidiary,
whether with respect to customers, suppliers, employees or with regard to
pricing, distribution or otherwise at any time after the date hereof until
the Closing. In addition, for a period of time as set forth below in
paragraph (c) below, Central agrees to refrain from, directly and
indirectly, making any offer or proposal, or seeking or soliciting the
opportunity, or responding to any solicitation, or entering into any
agreement to, operate, acquire, lease or manage any parking facility which
Allright or any Subsidiary operated, owned, leased or managed, or is
subject to a binding agreement (provided, in the case of a parking facility
subject to a binding agreement, only if such binding agreement was
disclosed to Central) to do any of the foregoing, as of the date hereof or
the date of termination of this Agreement, or encouraging any owner,
lessor, partner or customer (or any of their respective affiliates) with
respect to such parking facility to terminate (whether or not pursuant to
an existing right of termination) or otherwise adversely modify its
business relationship with Allright or any Subsidiary in any matter
whatsoever. In addition, for the time period set forth below, Central will
refrain from directly or indirectly employing, attempting to employ,
recruiting or otherwise soliciting, inducing or influencing any person to
leave employment with Allright or any Subsidiary who was employed by
Allright or any Subsidiary either on the date hereof or on the date of
termination of this Agreement.
(c) For purposes of paragraph (b), in the event the Merger is
not consummated as a result of the conditions set forth in Sections 6.2 (a)
(with respect to the bring-down of representations and warranties) or
6.2(b), not being satisfied, or upon a material breach of this Agreement by
Central, the restrictions on Central's ability to compete shall be for a
period of three years, and if the Merger is not consummated for any other
reason, such restrictions shall be in effect for a period of eighteen
months.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
Section 8.1 Survival of Representations, Warranties and
Agreements. The representations, warranties and covenants of each of
Holdings, Central and Central Sub made in this Agreement shall survive the
Closing until the first anniversary of the Closing (the "Indemnity
Period"), except for representations and warranties made in Section 3.8
(other than with respect to breaches of Section 3.8 arising from a
fraudulent act or fraudulent omission committed by AEW, Apollo Holdings or
Allright in connection with the preparation of the Financial Statements)
and Section 3.16 (other than with respect to those properties not contained
in the Law Report (as defined below)), which shall not survive the Closing.
The aforementioned representations, warranties and covenants shall not,
except as provided in Section 7.2 hereof, survive any termination of this
Agreement. The parties intend to shorten the statute of limitations and
agree that no claims or causes of action may be brought against each of
AEW, Apollo, Holdings, Central and Central Sub or any of its directors,
officers, employees, affiliates, controlling persons, agents or
representatives based upon, directly or indirectly, any of the
representations, warranties or agreements contained in this Agreement after
the Indemnity Period or, except as provided in Section 7.2 hereof, any
termination of this Agreement. This Section 8.1 shall not limit any
covenant or agreement of the parties which contemplates performance after
the Closing, including, without limitation, the covenants and agreements
set forth in Sections 5.6, 5.10, 5.11, 5.13 and 5.15 hereof.
Section 8.2 Agreement to Indemnify by AEW and Apollo.
(a) Subject to the terms and conditions set forth herein,
from and after the Closing, AEW and Apollo shall indemnify and hold
harmless Central, the Surviving Corporation and their respective directors,
officers, employees, affiliates, controlling persons, agents and
representatives and their successors and assigns (collectively, the
"Central Indemnitees") from and against all liability, demands, claims,
actions or causes of action, assessments, losses, damages, costs and
expenses (including, without limitation, reasonable attorneys' fees and
expenses, but excluding any such claims, losses or damages related to
breaches of representations and warranties contained in Section 3.8 (other
than with respect to breaches of Section 3.8 arising from a fraudulent act
or fraudulent omission committed by AEW, Apollo, Holdings or Allright in
connection with the preparation of the Financial Statements) and Section
3.16 hereof (other than with respect to properties not contained in the Law
Report)) (collectively, "Central Damages") asserted against or incurred by
any Central Indemnitee as a result of or arising out of a breach of any
representation, warranty or covenant contained in this Agreement (excluding
representations and warranties contained in Section 3.8 (other than with
respect to breaches of Section 3.8 arising from a fraudulent act or
fraudulent omission committed by AEW, Apollo, Holdings or Allright in
connection with the preparation of the Financial Statements) and Section
3.16 hereof (other than with respect to properties not contained in the Law
Report), and excluding any breaches of representations and warranties with
respect to matters for which Central or its representatives had knowledge
(based on reasonable information) prior to the date hereof), without
consideration of materiality standards contained in the representations and
warranties, when made or at and as of the Closing as though such
representation or warranty was made at and as of the Closing.
Notwithstanding the foregoing, AEW and Apollo shall not be liable for any
breaches of representations and warranties resulting in Central Damages if
Central or its representatives had knowledge of such breaches (based on
reasonable information) at the Closing Date.
(b) The obligations of AEW and Apollo to indemnify the
Central Indemnitees pursuant to Section 8.2(a) hereof with respect to a
breach of a representation, warranty or covenant contained in this
Agreement, excluding representations and warranties contained in Section
3.8 (other than with respect to breaches of Section 3.8 arising from a
fraudulent act or fraudulent omission committed by AEW, Apollo, Holdings or
Allright in connection with the preparation of the Financial Statements)
and Section 3.16 hereof (other than with respect to properties not
contained in the Law Report), are subject to the following limitations:
(i) No indemnification shall be made by AEW or
Apollo unless the aggregate amount of Central Damages exceeds
$4,000,000, and then only for the amount by which the Central Damages
exceed $4,000,000. Each of Apollo and AEW shall be liable for 50% of
all Central Damages in excess of $4,000,000, in the aggregate, and not
exceeding $34,000,000, in the aggregate; provided, however, that AEW
or Apollo shall not be liable for the obligations of the other under
this Section 8.2(b)(i).
(ii) AEW and Apollo shall be obligated to
indemnify the Central Indemnitees only for those claims giving rise to
Central Damages as to which the Central Indemnitees have given each of
AEW and Apollo written notice thereof prior to the end of the
Indemnity Period. Any written notice delivered by a Central
Indemnitee to AEW and Apollo with respect to Central Damages shall set
forth with as much specificity as is reasonably practicable the basis
of the claim for such Central Damages and, to the extent reasonably
practicable, a reasonable estimate of the amount thereof.
(iii) The sole remedy for any Excess Severance
shall be an adjustment to the Equity Purchase Price as set forth in
Section 2.6(b), and the Central Indemnitees shall not be entitled to
indemnification hereunder for any Central Damages arising from any
such increase in aggregate severance exposure.
Section 8.3 Agreement to Indemnify by Central.
(a) Subject to the terms and conditions set forth herein,
from and after the Closing, Central shall indemnify and hold harmless the
stockholders of Holdings as of the Closing (and, in the case where such
stockholders are not natural persons, their respective directors, officers,
employees, affiliates, controlling persons, agents and representatives) and
their permitted successors and assigns (collectively, the "Holdings
Indemnitees") from and against all liability, demands, claims, actions or
causes of action, assessments, losses, damages, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses)
(collectively, "Holdings Damages") asserted against or incurred by any
Holdings Indemnitee as a result of or arising out of a breach of any
representation, warranty or covenant contained in this Agreement (excluding
any breaches of representations and warranties with respect to matters for
which Holdings or its representatives had knowledge (based on reasonable
information) prior to the date hereof), without consideration of
materiality standards contained in the representations and warranties, when
made or at and as of the Closing as though such representation or warranty
was made at and as of the Closing. Notwithstanding the foregoing, Central
shall not be liable for any breaches of representations and warranties
resulting in Holdings Damages if Holdings had knowledge of such breaches
(based on reasonable information) at the Closing Date.
(b) The obligations of Central to indemnify the Holdings
Indemnitees pursuant to Section 8.3(a) hereof with respect to a breach of a
representation or warranty contained in this Agreement are subject to the
following limitations:
(i) No indemnification shall be made by Central
unless the aggregate amount of Holdings Damages exceeds $4,000,000,
and then only for the amount by which the Holdings Damages exceed
$4,000,000 and do not exceed $34,000,000, in the aggregate.
(ii) Central shall be obligated to indemnify the
Holdings Indemnitees only for those claims giving rise to Holdings
Damages as to which the Holdings Indemnitees have given Central
written notice thereof prior to the end of the Indemnity Period. Any
written notice delivered by a Holdings Indemnitee to Central with
respect to Holdings Damages shall set forth with as much specificity
as is reasonably practicable the basis of the claim for such Holdings
Damages and, to the extent reasonably practicable, a reasonable
estimate of the amount thereof.
Section 8.4 Indemnification - Environmental Matters.
(a) Subject to the terms and conditions set forth herein,
from and after the Closing, AEW and Apollo shall indemnify and hold
harmless the Central Indemnitees from and against all liability, demands,
claims, actions or causes of action, assessments, losses, damages, costs
and expenses (including, without limitation, reasonable attorneys' fees and
expenses, but excluding the Central Damages) (collectively, the
"Environmental Damages" and, together with the Central Damages, the
"Damages") asserted against or incurred by any Central Indemnitee solely
with respect to those matters contained in the report of Law Engineering &
Environmental Services, Inc., dated July 19, 1996 (the "Law Report")
previously furnished to Central and set forth on Schedule 8.4. The
obligations of AEW and Apollo under this Section 8.4(a) shall terminate
upon the thirty month anniversary of the Closing (the "Environmental
Indemnity Period").
(b) The obligations of AEW and Apollo to indemnify the
Central Indemnitees pursuant to clause (i) of Section 8.4(a) are subject to
the following limitations:
(i) With respect to each individual property,
each of Apollo and AEW shall be liable up to a maximum of 25% of all
Environmental Damages (the remaining 50% shall be the sole liability
and responsibility of Central) described in the Law Report under the
column entitled "nominal cost" for that property, and in no event
shall either be liable for over $5,000,000, in the aggregate, for all
properties. In no event shall AEW or Apollo be liable for the
obligations of the other or Central under this Section 8.4(b)(i).
(ii) AEW and Apollo shall be obligated to
indemnify the Central Indemnitees only for those claims giving rise to
Environmental Damages as to which the Central Indemnitees have given
each of AEW and Apollo written notice thereof prior to the end of the
Environmental Indemnity Period. Any written notice delivered by a
Central Indemnitee to AEW and Apollo with respect to Environmental
Damages shall set forth with as much specificity as is reasonably
practicable the basis of the claim for such Environmental Damages and,
to the extent reasonably practicable, a reasonable estimate of the
amount thereof.
(iii) No indemnification shall be made by AEW
or Apollo for environmental clean up costs incurred with respect to a
particular property to the extent such clean up costs are not (i)
required to be incurred by the Central Indemnitees by a federal, state
or local governmental or regulatory agency or (ii) incurred by the
Central Indemnities in connection with the sale or refinancing of such
property to the extent required by the buyer or the lender thereto, as
the case may be.
Section 8.5 Procedures. The obligations of the indemnifying
parties under this Article VIII to indemnify the indemnified parties with
respect to Damages or Holdings Damages, as the case may be, resulting from
the assertion of liability by third parties (a "Claim"), will be subject to
the following terms and conditions:
(a) An indemnitee against whom any Claim is asserted will
give the indemnifying party or parties, as the case may be, written notice
of any such Claim promptly after learning of such Claim, and each
indemnifying party may at its option undertake the defense thereof by
representatives of its own choosing. Failure to give prompt notice of a
Claim hereunder shall not affect the obligations of the indemnifying party
or parties, as the case may be, under this Article VIII except to the
extent an indemnifying party is materially prejudiced by such failure to
give prompt notice. If an indemnifying party within 30 days after notice
of any such Claim, or such shorter period as is reasonably required, fails
to assume the defense of such Claim, the indemnitee against whom such Claim
has been made will (upon further notice to the indemnifying party) have the
right to undertake the defense, compromise or settlement of such Claim on
behalf of and for the account and risk, and at the expense, of the
indemnifying party or parties, as the case may be, subject to the right of
each indemnifying party to assume the defense of such Claim at any time
prior to settlement, compromise or final determination thereof. In
connection with the handling and disposition of any Claim, the parties
agree to use their reasonable best efforts to cooperate and consult with
each other to the extent practicable in order to mitigate any Holdings
Damages, Environmental Damages or Central Damages which may arise from any
such Claim.
(b) Anything in this Section 8.5 to the contrary
notwithstanding, no indemnitee shall enter into any settlement or
compromise of any action, suit or proceeding or consent to the entry of any
judgment (i) which does not include as an unconditional term thereof the
delivery by the claimant or plaintiff to the indemnifying party or parties,
as the case may be, of a written release from all liability in respect of
such action, suit or proceeding and (ii) without the prior written consent
of the indemnifying party or parties, as the case may be, which consent
shall not be unreasonably withheld or delayed.
(c) All obligations for indemnification incurred by each of
the indemnifying party or parties, as the case may be, under this Article
VIII may be satisfied, in the sole discretion of the indemnifying party or
parties, as the case may be, by the payment of Central Common Stock in lieu
of cash, provided, however, that Central shall satisfy any such obligation
only through a payment of Central Common Stock to the extent required in
order to qualify the Merger as a pooling of interests transaction under APB
16. For purposes of this subsection, the value of a share of Central
Common Stock delivered in lieu of cash under this clause shall be deemed to
equal the closing sale price per share of Central Common Stock on the NYSE
on the Closing Date.
(d) The amount of Damages and Holdings Damages for which
indemnification is provided under this Article VIII herein shall be net of
(i) any amounts recovered by the appropriate indemnitee under insurance
policies with respect to such Damages or Holdings Damages, (ii) any balance
sheet reserves with respect to such Damages or Holdings Damages to the
extent accounted for on the balance sheet delivered in connection with the
Working Capital Adjustment, and (iii) any amounts recovered by the
appropriate indemnitee pursuant to third party indemnification agreements;
provided that in the case of (i) and (iii) above, the indemnitee must first
seek recovery from such insurance carrier or third party, as the case may
be, prior to seeking indemnification from an indemnifying party hereunder;
provided, further, that the indemnitee shall not adversely modify, reduce
coverage or terminate any existing insurance policy or third party
indemnification agreement prior to the expiration of the Indemnity Period
or, with respect to environmental insurance policies and third party
indemnification agreements relating to matters set forth in Section 8.4, if
any, the Environmental Indemnity Period.
Section 8.6 Sharing of Purchase Claim Costs. Subject to the
terms and conditions set forth herein, AEW, Apollo and Central agree, with
respect to the partnership listed on Schedule 3.20 numbered "5" (the
"Partnership"), that if the other partners of the Partnership shall assert
the right (the "Purchase Claim") to purchase the entire interest of the
Allright subsidiary which is a partner (the "Allright Partner") in the
Partnership, then Central, AEW and Apollo shall jointly make determinations
regarding the defense or other disposition of the Purchase Claim, including
the terms of any disposition of the Allright Partner pursuant to the
Purchase Claim, and shall share in any Purchase Claim Costs (as defined
below) as follows: (i) each of AEW and Apollo shall be liable for 25% of
the first $4,000,000 in Purchase Claim Costs up to a maximum obligation by
each of $1,000,000 and 0% of any Purchase Claim Costs beyond $4,000,000;
and (ii) Central shall be liable for 50% of the first $4,000,000 in
Purchase Claim Costs and 100% of any Purchase Claim Costs beyond
$4,000,000. For purposes of this Section 8.6, "Purchase Claim Costs" shall
include the difference, if any, between (i) $2,288,960, and (ii) the
purchase price paid by such remaining partner for the entire interest of
the Allright Partner, determined in accordance with the provisions of the
Partnership Agreement of the Partnership (the "Partnership Agreement") plus
any documented out-of -pocket costs of Central, AEW and Apollo in
responding to the Purchase Claim. Purchase Claim Costs shall not
constitute Central Damages for any purposes under this Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Schedules. All references to Schedules are to the
Disclosure Schedule exchanged among the parties to this Agreement.
Disclosures included in any Schedule shall, to the extent clear from the
context, be considered to be made for purposes of all Schedules, to the
extent that such Schedules are intended to contain the same subject matter
and be used in the same context. Inclusion of any matter in any Schedule
does not imply that such matter would, under the provisions of this
Agreement, have to be included in such Schedule.
Section 9.2 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally or transmitted by telex or telegram or mailed by registered or
certified mail (returned receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by
like notice):
If to Holdings, to:
Apollo Real Estate Investment Fund II, L.P.
1301 Avenue of the Americas
New York, New York 10019
Attn: William S. Benjamin
AEW Partners, L.P.
225 Franklin Street
Boston, Massachusetts 02110
Attn: Marc Davidson
with copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attn: Randall H. Doud
and to:
Goodwin, Procter & Hoar
Exchange Place
Boston, Massachusetts 02109
Attn: Laura Hodges Taylor
If to Central or Central Sub, to:
Central Parking Corporation
2401 21st Avenue South
Nashville, Tennessee 37212
Attn: Monroe J. Carell, Jr.
with copy to:
Harwell Howard Hyne Gabbert & Manner, P.C.
1800 First American Center
315 Deaderick Street
Nashville, Tennessee 37238
Attn: Mark Manner
Section 9.3 Interpretation. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 9.4 Brokers and Financial Advisors. Central represents
and warrants that, except for The Blackstone Group, L.P. (for whose fees
and expenses Central is solely responsible and against whose fees and
expenses Central hereby indemnifies Holdings), no person is entitled to any
brokerage or finder's fee, financial advisory fee or other payment from
Central or any of its affiliates based on agreements, arrangements or
undertakings made by Central in connection with the transactions
contemplated hereby. Holdings represents and warrants that, except for
Bear, Stearns & Co. (for whose fees and expenses Central is responsible for
to the extent set forth in Section 5.9 and Central hereby indemnifies
Holdings with respect to such fees to such extent and, if Central is not
responsible for such fees and expenses under Section 5.9, Holdings hereby
indemnifies Central with respect to such fees and expenses), no person is
entitled to any brokerage or finder's fee, financial advisory fee or other
payment from Holdings or any of its affiliates based on agreements,
arrangements or undertakings made by Holdings or any of its affiliates in
connection with the transactions contemplated hereby.
Section 9.5 Amendment. This Agreement and the Schedules hereto
may be amended by the parties hereto, but may not be amended except by an
instrument or instruments in writing signed and delivered on behalf of each
of the parties hereto.
Section 9.6 Extension; Waiver. At any time prior to the Closing
Date, any party hereto which is entitled to the benefits hereof may (a)
extend the time for the performance of any of the obligations or other acts
of any of the other parties hereto, (b) waive any inaccuracy in the
representations and warranties of any of the other parties hereto contained
herein or in any Schedule hereto or in any document delivered pursuant
hereto, and (c) waive compliance with any of the agreements of any of the
other parties hereto or conditions contained herein. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid if
set forth in an instrument in writing signed and delivered on behalf of
such party.
Section 9.7 Entire Agreement. This Agreement (including the
Schedules, documents and instruments referred to herein) and the
Confidentiality Agreements constitute the entire agreement and supersede
all other prior agreements and understandings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof and
thereof.
Section 9.8 Assignment. This Agreement shall not be assigned by
operation of law or otherwise, and any attempted assignment shall be void.
Section 9.9 Governing Law; Jurisdiction. This Agreement shall be
governed in all respects, including validity, interpretation and effect, by
the laws of the State of Delaware. Any dispute arising in connection with
this Agreement and any claim arising hereunder may be brought in the courts
of the State of Delaware, or in any federal court within the State of
Delaware, and by execution of this Agreement, each of the parties accepts
the jurisdiction of such courts, and irrevocably agrees to be bound by any
judgment rendered thereby in connection with this Agreement. The foregoing
consents shall not constitute general consents to the service of process in
the State of Delaware for any purpose except as provided above and shall
not be deemed to confer rights to any person other than the respective
parties to this Agreement. Nothing herein shall affect the right of either
party hereto to commence legal proceedings or otherwise proceed against the
other party in any other jurisdiction.
Section 9.10 Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but which
together shall constitute a single agreement.
Section 9.11 Joint and Several Liability. Any obligation of AEW
and Apollo arising hereunder shall be considered several, but not joint,
obligations of such parties.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the authorized officers of the parties hereto on the date
first above written.
CENTRAL PARKING CORPORATION
By: /s/ Monroe J. Carell, Jr.
-------------------------------
Name: Monroe J. Carell, Jr.
Title: Chief Executive Officer
CENTRAL MERGER SUB, INC.
By: /s/ Monroe J. Carell, Jr.
--------------------------------
Name: Monroe J. Carell, Jr.
Title: Chief Executive Officer
ALLRIGHT HOLDINGS, INC.
By: /s/ William S. Benjamin
--------------------------------
Name: William S. Benjamin
Title: President
APOLLO REAL ESTATE INVESTMENT FUND II, L.P. (with
respect to Article VIII, Article IX and Sections
2.6(d), 3.2 and 3.4 only)
By: Apollo Real Estate Advisors II, L.P., its
managing general partner
By: Apollo Real Estate Capital Advisors II, Inc.,
its general partner
By: /s/ William S. Benjamin
----------------------------------
Name: William S. Benjamin
Title: Vice President
AEW PARTNERS, L.P.
(with respect to Article VIII, Article IX and Sections
2.6(d), 3.2 and 3.4 only)
By: AEW/L.P., its general partner
By: AEW, Inc., its general partner
By: /s/ Marc L. Davidson
-----------------------------
Name: Marc L. Davidson
Title: Vice President
EXHIBIT A
[CENTRAL PARKING CORPORATION]
______________, 1998
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
KPMG Peat Marwick LLP
1900 Nashville City Center
Nashville, Tennessee 37219
Ladies and Gentlemen:
You have been requested to render an opinion (the "Opinion")
regarding certain United States Federal income tax consequences of the
merger (the "Merger") of Central Merger Sub, Inc. ("Central Sub"), a
Delaware corporation and wholly owned subsidiary of Central Parking
Corporation ("Central"), a Tennessee corporation, with and into Allright
Holdings, Inc. ("Holdings"), a Delaware corporation, with Holdings
continuing as the surviving corporation, upon the terms and conditions set
forth in the Agreement and Plan of Merger (the "Merger Agreement") dated as
of _____, 1998 between Central, Central Sub and Holdings. Capitalized
terms not otherwise defined herein have the meaning specified in the Merger
Agreement.
In connection with the Merger, and recognizing that you will rely
upon this certificate in rendering the Opinion, the undersigned, an officer
of Central, after due inquiry and investigation, hereby certifies that, as
of the date herein:
1. The facts relating to the Merger, which facts are described
in the Proxy Statement relating to the Merger dated ___________, 1998,
insofar as such facts pertain to Central and Central Sub, are true, correct
and complete in all material respects, and insofar as such facts pertain to
Holdings, the undersigned has no reason to believe that such facts are not
true, correct and complete in all material respects.
2. The Merger will be consummated in compliance with the terms
and conditions of the Merger Agreement and as described in the Proxy
Statement, and none of the terms and conditions contained in the Merger
Agreement have been waived or modified.
3. The aggregate fair market value of the Central Common Stock
(including any cash provided in lieu of fractional shares of Central Common
Stock) received by holders of Holdings Common Stock in the Merger, will be
approximately equal to the fair market value of the Holdings Common Stock
surrendered in exchange therefor, as determined by arm's-length
negotiations between the managements of Central and Holdings.
4. Following the Merger, Central will cause Holdings to hold at
least 90 percent of the fair market value of its net assets and at least 70
percent of the fair market value of its gross assets, and at least 90
percent of the fair market value of Central Sub's net assets and at least
70 percent of the fair market value of Central Sub's gross assets, held
immediately prior to the Effective Time. For purposes of this
representation, amounts paid by Holdings or Central Sub to shareholders who
receive cash or other property pursuant to the Merger, amounts paid by
Holdings or Central Sub to pay reorganization expenses, and all redemptions
and distributions (except for regular, normal dividends) made by Holdings
or Central Sub immediately preceding the Effective Time will be included as
assets of Holdings or Central Sub, respectively, immediately prior to the
Effective Time.
5. Prior to the Effective Time, Central will be in control of
Central Sub within the meaning of Section 368(c) of the Code. At no time
prior to the Effective Time has Central Sub conducted or will Central Sub
conduct any business activities or operations of any kind.
6. Central has no plan or intention to cause Holdings to issue
additional shares of its stock (or securities, options, warrants or
instruments giving the holder thereof the right to acquire Holdings stock)
that would (or if exercised would) result in Central losing control of
Holdings within the meaning of Section 368(c) of the Code.
7. Except for cash paid in lieu of fractional share interests
of Central Common Stock pursuant to the Merger, neither Central nor anyone
related to Central within the meaning of Treasury Regulation Section 1.368-
1(e)(3) has any plan or intention to purchase, redeem or otherwise
reacquire any of the shares of Central Common Stock issued in the Merger,
other than through a stock purchase program meeting the requirements of
Section 4.05(1)(b) of Revenue Procedure 96-30. Any existing stock
repurchase plan will not be modified in connection with the Merger.
8. Central has no plan or intention to liquidate Holdings; to
merge Holdings with and into another entity; to sell or otherwise dispose
of any of the stock of Holdings; to contribute the stock of Holdings to any
other entity; or to cause Holdings to sell or otherwise dispose of any of
its assets or any of the assets of Central Sub acquired in the Merger,
except for dispositions made in the ordinary course of business or
transfers described in Section 368(a)(2)(C) of the Code, in which case the
foregoing representations shall be deemed to apply to any transferee.
9. Central Sub will have no liabilities assumed by Holdings,
and will not transfer to Holdings any assets subject to liabilities, in the
transaction.
10. Following the Merger, Central will cause Holdings to
continue its historic business or use a significant portion of its
historic business assets in a business.
11. Except as provided in the Merger Agreement, each of Central
and Central Sub will pay their respective expenses, if any, incurred in
connection with the Merger.
12. There is no intercorporate indebtedness existing between
Central and Holdings, or between Central Sub and Holdings, that was issued,
acquired or will be settled at a discount.
13. In the Merger, shares of Holdings stock representing control
of Holdings, as defined in Section 368(c) of the Code, will be exchanged
solely for voting stock of Central, except with respect to cash received in
lieu of fractional shares pursuant to the Merger.
14. Neither Central nor Central Sub (nor any other subsidiary of
Central) owns, directly or indirectly, or has owned during the past five
years, directly or indirectly, any stock of Holdings.
15. Neither Central nor Central Sub is an investment company as
defined in Section 368(a)(2)(F)(iii) and (iv) of the Code.
16. The payment of cash in lieu of fractional shares of Central
Common Stock is solely for the purpose of avoiding the expense and
inconvenience to Central of issuing fractional shares and does not
represent separately bargained for consideration. Except for any case in
which a Holdings shareholder holds beneficial interests in shares of
Holdings Common Stock through more than one brokerage account and such
multiple accounts cannot be aggregated, either because the beneficial
interests cannot be identified or it would be impracticable to do so, the
fractional share interests of each Holdings shareholder will be aggregated,
and no Holdings shareholder will receive cash in an amount equal to or
greater than the value of one full share of Central Common Stock.
17. None of the compensation received by any shareholder-
employees of Holdings attributable to periods after the Effective Time
represents separate consideration for, or is allocable to, any of their
Holdings Common Stock. None of the Central Common Stock that will be
received by any of the Holdings shareholders who are or will be employees
of Holdings, Central Sub or Central represents separately bargained for
consideration which is allocable to any employment agreement or
arrangement. The compensation paid to any shareholder-employees of
Holdings after the Effective Time will be for services actually rendered
and will be commensurate with amounts paid to third parties bargaining at
arm's-length for similar services.
18. Central will pay or assume only those expenses of Holdings
that are solely and directly related to the Merger as contemplated by the
Merger Agreement.
19. Notwithstanding Section 8.5(c) of the Merger Agreement,
which gives Central the discretion, under certain circumstances, to satisfy
any indemnification obligation with cash or shares of Central Common Stock,
Central will not satisfy any such indemnification obligation with cash that
is in excess of the amount of cash permitted to be received pursuant to
Section 368(a)(2)(E) of the Code.
20. None of the consideration paid by Central pursuant to the
Merger will be allocated to the Noncompetition Agreement.
The undersigned will promptly notify Skadden, Arps, Slate,
Meagher & Flom LLP and KPMG Peat Marwick LLP if any of the above
representations or covenants cease to be accurate and complete.
CENTRAL PARKING CORPORATION
By:_______________________
Name:_____________________
Title:______________________
EXHIBIT B
[ALLRIGHT HOLDINGS, INC.]
______________, 1998
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
KPMG Peat Marwick LLP
1900 Nashville City Center
Nashville, Tennessee 37219
Ladies and Gentlemen:
You have been requested to render an opinion (the "Opinion")
regarding certain United States Federal income tax consequences of the
merger (the "Merger") of Central Merger Sub, Inc. ("Central Sub"), a
Delaware corporation and wholly owned subsidiary of Central Parking
Corporation ("Central"), a Tennessee corporation, with and into Allright
Holdings, Inc. ("Holdings"), a Delaware corporation, with Holdings
continuing as the surviving corporation, upon the terms and conditions set
forth in the Agreement and Plan of Merger (the "Merger Agreement") dated as
of _________, 1998 among Central, Central Sub and Holdings. Capitalized
terms not otherwise defined herein have the meaning specified in the Merger
Agreement.
In connection with the Merger, and recognizing that you will rely
upon this certificate in rendering the Opinion, the undersigned, an officer
of Holdings, after due inquiry and investigation, hereby certifies that, as
of the date herein:
1. The facts relating to the Merger, which facts are described
in the Proxy Statement relating to the Merger dated ___________, 1998,
insofar as such facts pertain to Holdings, are true, correct and complete
in all material respects, and insofar as such facts pertain to Central and
Central Sub, the undersigned has no reason to believe that such facts are
not true, correct and complete in all material respects.
2. The Merger will be consummated in compliance with the terms
and conditions of the Merger Agreement and as described in the Proxy
Statement, and none of the terms and conditions contained in the Merger
Agreement have been waived or modified.
3. The aggregate fair market value of the Central Common Stock,
(including any cash provided in lieu of fractional shares of Central Common
Stock) received by holders of Holdings Common Stock in the Merger, will be
approximately equal to the fair market value of the Holdings Common Stock
surrendered in exchange therefor, as determined by arm's-length
negotiations between the managements of Central and Holdings.
4. Neither Holdings nor any corporation related to Holdings has
redeemed or otherwise acquired or has any present plan or intention to
redeem or otherwise acquire any Holdings Common Stock in anticipation of
the Merger, or otherwise as part of a plan of which the Merger is a part.
Neither Holdings nor any corporation related to Holdings has made or has
any present plan or intention to make any extraordinary distributions with
respect to Holdings Common Stock. To the best knowledge of the management
of Holdings, neither Central nor any corporation related to Central (as
defined in Regulations Section 1.368-1(e)(3)) has a present plan or
intention to purchase Holdings Common Stock or any Central Common Stock.
5. At the time of the Merger, Holdings will hold at least 90
percent of the fair market value of its net assets and at least 70 percent
of the fair market value of its gross assets held immediately prior to the
Effective Time. For purposes of this representation, amounts paid by
Holdings to shareholders who receive cash or other property pursuant to the
Merger, amounts paid by Holdings to pay reorganization expenses, and all
redemptions and distributions (except for regular, normal dividends) made
by Holdings immediately preceding the Effective Time will be included as
assets of Holdings immediately prior to the Effective Time.
6. Holdings has no plan or intention to issue additional shares
of its stock (or securities, options, warrants or instruments giving the
holder thereof the right to acquire Holdings stock) that would (or if
exercised would) result in Central losing control of Holdings within the
meaning of Section 368(c) of the Code.
7. Except as provided in the Merger Agreement, each of Holdings
and its shareholders will pay their respective expenses, if any, incurred
in connection with the Merger.
8. There is no intercorporate indebtedness existing between
Central and Holdings, or between Central Sub and Holdings, that was issued,
acquired or will be settled at a discount.
9. In the Merger, shares of Holdings stock representing control
of Holdings, as defined in Section 368(c) of the Code, will be exchanged
solely for voting stock of Central, except with respect to cash received in
lieu of fractional shares pursuant to the Merger.
10. Holdings is not an investment company as defined in Section
368(a)(2)(F)(iii) and (iv) of the Code.
11. On the date of the Merger, the fair market value of the
assets of Holdings will exceed the sum of its liabilities, plus the amount
of liabilities, if any, to which the assets are subject.
12. Prior to and in connection with the Merger, Holdings will
not make an extraordinary distribution within the meaning of Temporary
Regulations Section 1.368-1T(e)(1)(ii)(A).
13. Holdings is not under the jurisdiction of a court in a Title
11 or similar case within the meaning of Section 368(a)(3)(A) of the Code.
14. The payment of cash in lieu of fractional shares of Central
Common Stock is solely for the purpose of avoiding the expense and
inconvenience to Central of issuing fractional shares and does not
represent separately bargained for consideration. Except for any case in
which a Holdings shareholder holds beneficial interests in shares of
Holdings Common Stock through more than one brokerage account and such
multiple accounts cannot be aggregated, either because the beneficial
interests cannot be identified or it would be impracticable to do so, the
fractional share interests of each Holdings shareholder will be aggregated,
and no Holdings shareholder will receive cash in an amount equal to or
greater than the value of one full share of Central Common Stock.
15. None of the compensation received by any shareholder-
employees of Holdings attributable to periods on or prior to the Effective
Time represents separate consideration for, or is allocable to, any of
their Holdings Common Stock. None of the Central Common Stock that will be
received by any of the Holdings shareholders who are or will be employees
of Holdings, Central Sub or Central represents separately bargained for
consideration which is allocable to any employment agreement or
arrangement. The compensation paid to any shareholder-employees of
Holdings on or prior to the Effective Time will be for services actually
rendered and will be commensurate with amounts paid to third parties
bargaining at arm's-length for similar services.
The undersigned will promptly notify Skadden, Arps, Slate,
Meagher & Flom LLP and KPMG Peat Marwick LLP if any of the above
representations or covenants cease to be accurate and complete.
ALLRIGHT HOLDINGS, INC.
By:_________________________
Name:______________________
Title:_______________________
EXHIBIT C
NONCOMPETITION AGREEMENT
This NONCOMPETITION AGREEMENT (the "AGREEMENT") is made and entered
into this 19th day of March, 1999, by and between CENTRAL PARKING
CORPORATION, a Tennessee corporation ("CENTRAL") and APOLLO REAL ESTATE
INVESTMENT FUND II, L.P. ("APOLLO"), a Delaware limited partnership and AEW
PARTNERS, L.P. ("AEW"), a Delaware limited partnership (collectively,
"SHAREHOLDERS" and individually, a "SHAREHOLDER") and certain related
funds.
R E C I T A L S:
WHEREAS, Shareholders have been shareholders of Allright Holdings,
Inc., a Delaware corporation (the "CORPORATION"), and have been involved in
the management of Shareholders' business interests related to the parking
industry;
WHEREAS, Central Merger Sub, Inc., a corporation and wholly-owned
subsidiary of Central ("Central Sub"), pursuant to that certain Agreement
and Plan of Merger dated as of September 21, 1998 (the "MERGER AGREEMENT"),
has merged with and into Corporation, with Corporation being the surviving
entity;
WHEREAS, Shareholders and the other signatories hereto have agreed,
as an inducement to Central to enter into the Merger Agreement, that
Shareholders and such other parties would enter into a Noncompetition
Agreement with Central on terms reasonably
acceptable to Central.
AGREEMENT
In consideration of the mutual agreements, covenants, terms, and
conditions contained in the Merger Agreement and the consideration paid to
the Shareholders as described in the Merger Agreement, the parties agree as
follows:
1. PARTIES BOUND. The provisions of the Noncompetition Agreement
shall be binding upon the Shareholders and the Related Parties, as
hereinafter defined. As used herein, "Related Parties" shall mean, with
respect to Apollo, all of the "real estate investment opportunity funds"
now existing or hereafter created, either (i) managed or advised by Apollo
Real Estate Advisors, L.P., Apollo Real Estate Advisors, II, L.P., Apollo
Real Estate Advisors, III, L.P., or a successor or affiliated entity
thereto, in each case serving as general partner, and (ii) any other
affiliated fund as to which William J. Benjamin serves in an portfolio
oversight capacity; and, with respect to AEW, all of the "high yield
private equity real estate opportunity funds" now existing or hereafter
created either (x) managed or advised by AEW Capital Management, L.P. ("AEW
Capital"), or (y) of which AEW Capital or an entity controlled by it serves
as general partner (currently, the Shareholder, AEW Partners II, L.P. and
AEW Partners III, L.P.), and any other AEW fund for which Thomas H. Nolan
or Marc L. Davidson serves as portfolio manager or otherwise exercises
investment discretion. All obligations and responsibilities arising out of
this Agreement shall be several, but not joint, obligations of Apollo and
its Related Parties on the one hand and AEW and its Related Parties on the
other. For purposes hereof, the term "Related Party" does not include any
portfolio investment entities in which a Shareholder has a beneficial or
pecuniary interest or any third party which may have voting, economic or
contractual relationships with a Shareholder as a partner of such
Shareholder, a partner with a Shareholder in a portfolio investment or
otherwise and over which a Shareholder does not have actual investment or
dispositive power. Furthermore, with respect to the foregoing, Central
understands and agrees that affiliates of the Shareholders are engaged in
the business of making and managing investments and investor capital and
that such affiliates (other than the aforementioned real estate focused
investment funds) shall not be subject to any of the restrictions
contemplated by this Agreement.
2. NONCOMPETITION.
a. COVENANT. Within the Prohibited Area, as defined in Section
c. below, Shareholders and Related Parties agree that they shall not
directly or indirectly own a controlling interest in, manage or control any
business or person competing with Central and/or its subsidiaries,
including the Corporation and its subsidiaries. For purposes of this
subsection, a business or person shall only be deemed to be "competing" if
it is engaged in the ownership, operation or management of parking
facilities, on-street parking management and enforcement, toll road
collections, red light enforcement, parking consultation, shuttle
operation, and valet parking operation (the "Business").
b. DURATION OF NONCOMPETITION COVENANT. The noncompetition
covenant reflected in the immediately preceding paragraph above shall
expire with respect to a Shareholder and its Related Parties, six (6)
months after such Shareholder's designee no longer serves on Central's
Board of Directors (such period herein the "RESTRICTED PERIOD").
c. PROHIBITED AREA. The term "Prohibited Area" shall mean the
entire world.
d. PERMITTED INVESTMENTS. Notwithstanding any of the foregoing,
nothing in this Agreement shall prohibit Shareholders or the Related
Parties from (i) making investments in an entity which is engaged in the
Business, provided that gross revenues from operations in the Business do
not exceed ten million dollars per annum, (ii) acquiring real estate which
includes integrated parking facilities or acquiring (not itself operating
or managing) stand alone parking facilities, (iii) retaining any investment
existing on the date hereof or (iv) selling, recapitalizing, reorganizing,
restructuring, retaining or increasing their investment in any existing
investment or new investment made after the date hereof in compliance with
this Agreement, provided that in the case of this subsection (iv) only, in
the event any such change in an investment would give a Shareholder
management of or a controlling interest in a competing entity as set forth
in Section 2.a (except for any otherwise permitted by this subsection 2.d),
the Shareholder's designees shall promptly notify Central of such change
and upon request of Central shall resign from Central's Board of Directors,
and in such event the Restricted Period for such Shareholder shall
terminate upon such resignation (except with respect to those investments
listed on Exhibit 2(d), for which the six month period following
resignation shall continue to apply).
e. USE OF CORPORATION NAME. Except as specifically agreed in
writing by Central, the Shareholders and Related Parties agree that, during
the Restricted Period or thereafter, they will not in any manner in
connection with the Business use, or permit any employee, or at such
Shareholder's direction, agent or representative, to use, the names
"Allright", "Edison", "National", "Central Parking", "Central", or any
derivation thereof or any other names currently or previously used (upon
notice by Central, in the case of those not currently in use) by
Corporation or Central or their subsidiaries; provided however, that the
Shareholders and Related Parties and their employees, agents and
representatives shall not be prohibited from disclosing the existence or
nature of the Shareholders' investment in Central, or the participation on
Central's Board of Directors of such Shareholders' representatives, subject
to restrictions imposed by applicable law.
3. NONSOLICITATION. During a parties' respective Restricted Period
and for a period of eighteen months (six (6) if not in connection with a
resignation from Central's Board of Directors as described in Section
2.d(iv)) thereafter, Shareholders and Related Parties shall not, directly
or indirectly, solicit any person who is, at the time of such solicitation,
an employee of Central or Corporation to be employed by or otherwise
participate in the management or operation of any Business that is
"competing" (as such term is defined in Section 2.a.) with Central or
Corporation; provided, however, that in no event shall the Shareholders or
Related Parties be prohibited from making any general solicitation or
advertisement with respect to employment opportunities or otherwise or any
similar general or public solicitation.
4. CONFIDENTIALITY. Shareholders and Related Parties acknowledge that
they have and may in the future obtain certain proprietary, confidential
and non-public information respecting Central, Corporation and their
respective businesses and affairs ("Confidential Information); it being
understood that Confidential Information does not and shall not include (i)
information that is or becomes publicly available through no fault of the
Shareholder (except respecting information required to be disclosed by
law), or (ii) information obtained or developed independent of the
Confidential Information. During the Restricted Period and for a period of
eighteen (six (6) if not in connection with a resignation from Central's
Board of Directors as described in Section 2.d(iv)) months thereafter,
Shareholders and Related Parties will not disclose to any person, firm,
association, or governmental agency any Confidential Information except as
required by law and will not use any of such information for their own
benefit. All Confidential Information will remain the property of Central
and Corporation and shall be destroyed or returned to Central and
Corporation by a Shareholder upon the Shareholder's designee's resignation
or removal from Central's Board of Directors.
5. ADDITIONAL PROVISIONS REGARDING NONSOLICITATION, NONCOMPETITION
AND CONFIDENTIALITY.
a. REASONABLENESS. Shareholders and Related Parties acknowledge
and agree that the duration, the scope, and the geographic area covered by
Sections 2, 3 and 4 above are reasonable and necessary to protect Central
and Corporation from competing efforts and that Shareholders' and Related
Parties' agreement to abide by the terms thereof was necessary to induce
Central and Corporation to enter into the Merger Agreement. Shareholders
and Related Parties further acknowledge that execution of the Merger
Agreement and the consideration provided for therein are sufficient
consideration to Shareholders and Related Parties to agree to abide by the
terms thereof.
If, however, it shall be judicially determined that any
provision of Sections 2, 3 or 4 is unreasonably broad in any respect, such
provision shall not be declared invalid, but rather shall be modified to
the extent that it shall be determined to be reasonable and enforceable.
The existence of any claim or cause of action of Shareholders or Related
Parties against Central or Corporation, whether predicated on the Merger
Agreement or otherwise, shall not constitute a defense to the enforcement
of the provisions of Sections 2, 3 or 4.
b. EQUITABLE RELIEF. Shareholders and Related Parties
acknowledge and agree that a remedy at law will be inadequate for any
breach by Shareholders and Related Parties of Sections 2, 3 or 4.
Shareholders and Related Parties further agree that Central and/or
Corporation shall be entitled to an injunction, both preliminary and final,
and any other appropriate equitable relief to enforce its rights under such
Sections. Such remedies shall be cumulative and non-exclusive, being in
addition to any and all other remedies available to Central and/or
Corporation at law and equity.
6. MISCELLANEOUS.
a. NO WAIVER. No waiver of any of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding, unless executed in writing
by the party making the waiver.
b. ATTORNEYS' FEES. In the event that an attorney is employed
by a party hereto with regard to any legal action, arbitration, or other
proceeding for the enforcement of this Agreement, the prevailing party in
such proceeding, whether at trial or upon appeal, and in addition to any
other relief to which it may be granted, shall be entitled to recover all
costs, expenses, and a reasonable sum for attorneys' fees incurred in
bringing such action, arbitration, or proceeding, and in enforcing any
judgment granted therein, all of which costs, expenses, and attorneys' fees
shall be deemed to have accrued upon the commencement of such action and
shall be paid whether or not such action is prosecuted to judgment.
c. NO DISCLOSURE. The parties hereto agree that they will not,
and will not permit any of their employees, agents or representatives to,
disclose the existence or terms and provisions of this Agreement except if
and to the extent required by applicable law; and each party making any
such required disclosure agrees to cooperate reasonably with the others in
ensuring that any such disclosure is acceptable to such other parties.
d. NOTICES. All notices, requests, demands, or other
communications under this Agreement shall be in writing and shall be deemed
to have been duly given on the date of service if served personally on the
party to whom notice is to be given, or on the third (3rd) day after
mailing if mailed to the party to whom notice is to be given, by first
class mail, registered or certified, postage prepaid, and properly
addressed as follows:
To Shareholders or Related Parties:
AEW Partners, L.P.
225 Franklin Street
Boston, Massachusetts 02110
Attention: Marc Davidson
Apollo Real Estate Investment Fund II, L.P.
Apollo Real Estate Management II, Inc.
1301 Avenue of the Americas
New York, New York 10019
Attention: William S. Benjamin
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: Randall H. Doud
Goodwin, Procter & Hoar, LLP
Exchange Place
Boston, Massachusetts 02109
Attention: Laura Hodges Taylor
To Central or Corporation:
Central Parking Corporation
2401 21st Avenue South
Nashville, Tennessee 37212
Attention: Monroe J. Carell
with a copy to:
Harwell Howard Hyne Gabbert & Manner, P.C.
315 Deaderick Street
1800 First American Center
Nashville, Tennessee 37238
Attention: Mark Manner
Each party may change its address indicated above by giving the other
party written notice of the new address in the manner above set forth.
e. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter thereof and
supersedes all prior agreements and understandings between them or any of
them as to such subject matter.
f. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of this Agreement and
such invalid, illegal and unenforceable provision shall be reformed and
construed so that it will be valid, legal, and enforceable to the maximum
extent permitted by law.
g. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
h. SECTION HEADINGS. The headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning
or interpretation of this Agreement.
i. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of
Delaware.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first-above written.
CENTRAL:
CENTRAL PARKING CORPORATION,
INC., a Tennessee corporation
By:___________________________
Name:
Title:
SHAREHOLDER :
APOLLO REAL ESTATE INVESTMENT FUND II,
L.P., a Delaware limited partnership
By: Apollo Real Estate Advisors II, L.P., its
General Partner
By: Apollo Real Estate Capital Advisors II,
Inc., its General Partner
Name:__________________________________
Title:
SHAREHOLDER :
AEW PARTNERS, L.P., a Delaware limited
partnership
By:____________________________________
Name:
Title:
EXHIBIT 2(D)
AAA Parking (Atlanta)
Ace Parking (San Diego)
American Parking System (San Juan)
American Parking (Tulsa/Santa Fe)
AMPCO System (Los Angeles)
APCOA Europe (Stuttgart)
APCOA/Standard (Chicago)
Car Park Services (Toronto)
CitiPark (San Francisco)
Classified Parking (Dallas)
Colonial Parking (Washington, D.C.)
Dennison Parking (Indianapolis)
Diamond Parking (Seattle)
Doggett Parking (Washington, D.C.)
Five Star (Los Angeles)
Garage Management Corp. (New York City)
Loop Parking (Minneapolis)
Mallah Parking (New York City)
Manhattan Parking Corp. (New York City)
Mile High Parking (Denver)
National Car Park (London)
Olympic Auto Park (Cincinnati)
Park N' Fly (Atlanta)
Park One (New Orleans)
Parking Company of America (Atlanta/Cincinnati)
Parking Concepts (Los Angeles)
Parkway Corp. (Philadelphia)
PMI (Washington, D.C.)
Quik Park (New York City)
Rapid Park (New York City)
Republic Parking (Chattanooga)
St. Louis Parking (St. Louis)
System Parking (Louisville)
United Parking (Atlanta)
USA Parking (Ft. Lauderdale)
VA Parking (Richmond)
TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER . . . . . . . . . . . . . . 2
Section 1.1 The Merger . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Effective Time . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.3 Closing . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.4 Certificate of Incorporation . . . . . . . . . . . . . . . 3
Section 1.5 By-Laws . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.6 Directors and Officers . . . . . . . . . . . . . . . . . . 3
ARTICLE II
CONVERSION OF SECURITIES . . . . . . . . . . 3
Section 2.1 Conversion of Securities . . . . . . . . . . . . . . . . . 3
Section 2.2 Closing of Holdings Transfer Books . . . . . . . . . . . . 4
Section 2.3 No Fractional Shares . . . . . . . . . . . . . . . . . . . 4
Section 2.4 Certain Adjustments . . . . . . . . . . . . . . . . . . . 4
Section 2.5 Stock Options; Warrants . . . . . . . . . . . . . . . . . 4
Section 2.6 Calculation of Exchange Ratio . . . . . . . . . . . . . . 6
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF HOLDINGS . . . . . . . 9
Section 3.1 Organization . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.2 Authority; Enforceability . . . . . . . . . . . . . . . . 9
Section 3.3 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.4 Non-Contravention . . . . . . . . . . . . . . . . . . . 10
Section 3.5 Consents . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.6 Capital Stock . . . . . . . . . . . . . . . . . . . . . 11
Section 3.7 Organization and Qualification of Allright and the
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.8 Financial Statements . . . . . . . . . . . . . . . . . . 12
Section 3.9 Undisclosed Liabilities . . . . . . . . . . . . . . . . 12
Section 3.10 Absence of Certain Changes or Events . . . . . . . . . . 12
Section 3.11 Legal Proceedings . . . . . . . . . . . . . . . . . . . 13
Section 3.12 Employee Benefits . . . . . . . . . . . . . . . . . . . 13
Section 3.13 Properties, Contracts and Other Data . . . . . . . . . . 15
Section 3.14 Certain Tax Matters . . . . . . . . . . . . . . . . . . 16
Section 3.15 Compliance with Laws . . . . . . . . . . . . . . . . . . 17
Section 3.16 Environmental Laws . . . . . . . . . . . . . . . . . . . 18
Section 3.17 Affiliate Transactions . . . . . . . . . . . . . . . . . 19
Section 3.18 Labor and Employment Matters . . . . . . . . . . . . . . 19
Section 3.19 Insurance . . . . . . . . . . . . . . . . . . . . . . . 20
Section 3.20 Certain Contracts . . . . . . . . . . . . . . . . . . . 20
Section 3.21 Accounting Matters . . . . . . . . . . . . . . . . . . . 20
Section 3.22 No Implied Representation . . . . . . . . . . . . . . . 20
Section 3.23 Intellectual Property . . . . . . . . . . . . . . . . . 21
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
CENTRAL AND CENTRAL SUB . . . . . . . . . . . 21
Section 4.1 Organization . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.2 Authority; Enforceability . . . . . . . . . . . . . . . 21
Section 4.3 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 22
Section 4.4 Non-Contravention . . . . . . . . . . . . . . . . . . . 22
Section 4.5 Consents . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 4.6 Capital Stock . . . . . . . . . . . . . . . . . . . . . 23
Section 4.7 Organization and Qualification of the Central
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 24
Section 4.8 SEC Reports . . . . . . . . . . . . . . . . . . . . . . 24
Section 4.9 Undisclosed Liabilities . . . . . . . . . . . . . . . . 25
Section 4.10 Absence of Certain Changes or Events . . . . . . . . . . 25
Section 4.11 Legal Proceedings . . . . . . . . . . . . . . . . . . . 25
Section 4.12 Employee Benefits . . . . . . . . . . . . . . . . . . . 26
Section 4.13 Properties, Contracts and Other Data . . . . . . . . . . 28
Section 4.14 Certain Tax Matters . . . . . . . . . . . . . . . . . . 29
Section 4.15 Compliance with Laws . . . . . . . . . . . . . . . . . . 30
Section 4.16 Environmental Laws . . . . . . . . . . . . . . . . . . . 31
Section 4.17 Affiliate Transactions . . . . . . . . . . . . . . . . . 32
Section 4.18 Labor and Employment Matters . . . . . . . . . . . . . . 32
Section 4.19 Insurance . . . . . . . . . . . . . . . . . . . . . . . 32
Section 4.20 Certain Contracts . . . . . . . . . . . . . . . . . . . 33
Section 4.21 Accounting Matters . . . . . . . . . . . . . . . . . . . 33
Section 4.22 No Implied Representation . . . . . . . . . . . . . . . 33
ARTICLE V
COVENANTS . . . . . . . . . . . . . . 34
Section 5.1 Conduct of Business by Allright . . . . . . . . . . . . 34
Section 5.2 Conduct of Business by Central . . . . . . . . . . . . . 36
Section 5.3 Preparation of the Form S-4 and the Proxy Statement;
Stockholders Meetings . . . . . . . . . . . . . . . . . 38
Section 5.4 Investigation; Non-Solicitation . . . . . . . . . . . . 40
Section 5.5 Approvals and Consents; Cooperation; Notification . . . 41
Section 5.6 Central Board of Directors . . . . . . . . . . . . . . . 42
Section 5.7 Public Announcements . . . . . . . . . . . . . . . . . . 42
Section 5.8 Tax Treatment of Merger . . . . . . . . . . . . . . . . 42
Section 5.9 Expenses; Severance . . . . . . . . . . . . . . . . . . 42
Section 5.10 Employment Matters . . . . . . . . . . . . . . . . . . . 44
Section 5.11 Indemnification, Exculpation and Insurance . . . . . . . 45
Section 5.12 NYSE Exchange Listings . . . . . . . . . . . . . . . . . 47
Section 5.13 Affiliates . . . . . . . . . . . . . . . . . . . . . . . 47
Section 5.14 Pooling of Interests . . . . . . . . . . . . . . . . . . 47
Section 5.15 Conveyance Taxes . . . . . . . . . . . . . . . . . . . . 48
Section 5.16 Registration Rights Agreement . . . . . . . . . . . . . 48
Section 5.17 Restructuring Agreement . . . . . . . . . . . . . . . . 48
ARTICLE VI
CONDITIONS TO CONSUMMATION OF THE MERGER . . . . . . 48
Section 6.1 Conditions to Each Party's Obligations to
Effect the Merger . . . . . . . . . . . . . . . . . . . 48
Section 6.2 Conditions to the Obligations of Central to Effect the
Merger . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.3 Conditions to the Obligations of Holdings to Effect the
Merger . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE VII
TERMINATION; NON-CONSUMMATION . . . . . . . . . 54
Section 7.1 Termination . . . . . . . . . . . . . . . . . . . . . . 54
Section 7.2 Effect of Termination . . . . . . . . . . . . . . . . . 55
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION . . . . . 56
Section 8.1 Survival of Representations, Warranties and Agreements . 56
Section 8.2 Agreement to Indemnify by AEW and Apollo . . . . . . . . 57
Section 8.3 Agreement to Indemnify by Central. . . . . . . . . . . . 58
Section 8.4 Indemnification - Environmental Matters . . . . . . . . 60
Section 8.5 Procedures . . . . . . . . . . . . . . . . . . . . . . . 61
Section 8.6 Sharing of Purchase Claim Costs. . . . . . . . . . . . . 62
ARTICLE IX
MISCELLANEOUS . . . . . . . . . . . . . 63
Section 9.1 Schedules . . . . . . . . . . . . . . . . . . . . . . . 63
Section 9.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 9.3 Interpretation . . . . . . . . . . . . . . . . . . . . . 64
Section 9.4 Brokers and Financial Advisors . . . . . . . . . . . . . 64
Section 9.5 Amendment . . . . . . . . . . . . . . . . . . . . . . . 65
Section 9.6 Extension; Waiver . . . . . . . . . . . . . . . . . . . 65
Section 9.7 Entire Agreement . . . . . . . . . . . . . . . . . . . . 65
Section 9.8 Assignment . . . . . . . . . . . . . . . . . . . . . . . 65
Section 9.9 Governing Law; Jurisdiction . . . . . . . . . . . . . . 65
Section 9.10 Counterparts . . . . . . . . . . . . . . . . . . . . . . 66
Section 9.11 Joint and Several Liability. . . . . . . . . . . . . . . 66
Exhibit A
Exhibit B
Exhibit C
AMENDMENT
AMENDMENT, dated as of January 5, 1999 (this "Amendment"), to the
AGREEMENT AND PLAN OF MERGER, dated as of September 21, 1998 (the "Merger
Agreement"), among Central Parking Corporation ("Central"), a Tennessee
corporation, Central Merger Sub, Inc. ("Central Sub"), a Delaware
corporation and wholly owned subsidiary of Central, Allright Holdings, Inc.
("Holdings"), a Delaware corporation and the sole shareholder of Allright
Corporation ("Allright"), a Delaware corporation, Apollo Real Estate
Investment Fund II, L.P. ("Apollo"), a Delaware limited partnership and AEW
Partners, L.P. ("AEW"), a Delaware limited partnership. Capitalized terms
used herein without definition have the terms ascribed to them in the
Merger Agreement.
W I T N E S S E T H
WHEREAS, the parties to the Merger Agreement have determined to
amend it in certain respects and the parties to the Registration Rights
Agreement have determined to amend it in certain respects, all such parties
representing that they have obtained all necessary approvals to do so;
Now, therefore, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
1. The Merger Agreement is amended by restating Section 7.1(c) as
follows: "by Holdings or Central upon notice given to the other if the
Closing shall not have taken place on or before the earlier to occur of
February 19, 1999 or the date 23 business days following the Form S-4 being
declared effective by the SEC (or such later date as Holdings and Central
shall have agreed); provided that the failure of the Closing to occur on or
before such date is not the result of the breach of the covenants,
agreements, representations or warranties hereunder of the party seeking
such termination, and provided further that if the Closing has not taken
place due solely to the fact that the waiting period under the HSR Act
shall not have expired or been terminated, the required date of the Closing
may be extended at the option of either Holdings or Central to no later
than March 20, 1999; or"
2. This Amendment may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
3. This Amendment shall be governed by and construed in accordance
with the laws of the State of Delaware applicable to contracts made and to
be performed wholly within that State.
4. Except to the extent specifically modified in this Amendment, all
of the terms and provisions of the Merger Agreement, and the parties'
respective rights thereunder, shall remain in full force and effect and
shall be deemed to apply to this Amendment.
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the authorized officers of the parties hereto on the date
first above written.
CENTRAL PARKING CORPORATION
By: /s/ Monroe J. Carell, Jr.
Name: Monroe J. Carell, Jr.
Title: Chairman
CENTRAL MERGER SUB, INC.
By: /s/ Monroe J. Carell, Jr.
Name: Monroe J. Carell, Jr.
Title: Chairman
ALLRIGHT HOLDINGS, INC.
By: /s/ William S. Benjamin
Name: William S. Benjamin
Title: President
APOLLO REAL ESTATE INVESTMENT FUND II, L.P.
By: Apollo Real Estate Advisors II, L.P., its
managing general partner
By: Apollo Real Estate Capital Advisors II, Inc.,
its general partner
By: /s/ William S. Benjamin
Name: William S. Benjamin
Title: Vice President
AEW PARTNERS, L.P.
By: AEW/L.P., its general partner
By: AEW, Inc., its general partner
By: /s/ Marc L. Davidson
Name: Marc L. Davidson
Title: Vice President
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of September 21, 1998,
among (i) Central Parking Corporation, a Tennessee corporation (the
"Company"), (ii) Apollo Real Estate Investment Fund II, L.P., a Delaware
limited partnership (together with its Affiliates, "Apollo"), (iii) AEW
Partners, L.P., a Delaware limited partnership (together with its
Affiliates, "AEW"), and (iv) Monroe J. Carell, Jr., The Monroe Carell, Jr.
Foundation, Monroe Carell, Jr. 1995 Grantor Retained Annuity Trust, Monroe
Carell, Jr. 1994 Grantor Retained Annuity Trust, The Carell Children's
Trust, The 1996 Carell Grandchildren's Trust, The Carell Family
Grandchildren 1990 Trust, The Kathryn Carell Brown Foundation, The Edith
Carell Johnson Foundation, The Julia Carell Stadler Foundation, 1997 Carell
Elizabeth Brown Trust, 1997 Ann Scott Johnson Trust, 1997 Julia Claire
Stadler Trust, 1997 William Carell Johnson Trust, 1997 David Nicholas Brown
Trust and 1997 George Monroe Stadler Trust (together with their respective
Affiliates other than the Company, the "Carell Holders"). Apollo, AEW and
all other holders at the effective time of the Merger (as hereinafter
defined) of the shares of Common Stock, par value of $.01 per share (the
"Holdings Common Stock"), of Allright Holdings, Inc., a Delaware
corporation ("Holdings"), or of options and warrants to purchase shares of
Holdings Common Stock, are sometimes referred to collectively as the
"Allright Holders" and the Allright Holders and the Carell Holders are
sometimes referred to collectively as the "Holders."
W I T N E S S E T H
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of
the date hereof (the "Merger Agreement"), by and among the Company, Central
Merger Sub, Inc., a Delaware corporation ("Central Sub"), Holdings, AEW and
Apollo, shareholders of Holdings will receive from the Company shares of
the Company's Common Stock (as hereinafter defined) pursuant to the merger
of Holdings with and into Central Sub, with Holdings being the surviving
corporation (the "Merger"); and
WHEREAS, the parties hereto desire to set forth the rights of the
Holders and the obligations of the Company with respect to the registration
of the Registrable Securities (as hereinafter defined) pursuant to the
Securities Act (as hereinafter defined); and
WHEREAS, the execution and delivery of this Agreement by the
parties hereto is a condition to the willingness of each of Holdings,
Apollo and AEW to enter into the Merger Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements
of the Company, Central Sub and Holdings contained in the Merger Agreement
and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Merger
Agreement. For purposes of this Agreement the following terms shall have
the following meanings:
"Affiliate" has the meaning assigned to such term under Rule 405
of the Securities Act.
"Business Day" means any day other than (i) a Saturday or Sunday,
or (ii) a day on which banking institutions in the City of New York are
authorized or required by law or executive order to remain closed.
"Charitable Organization" means any corporation, community chest,
fund or foundation organized and operated exclusively for religious,
charitable, scientific, testing for public safety, literary or educational
purposes, or to foster national or international amateur sports competition
or for the prevention of cruelty to children or animals, no part of the net
earnings of which inures to the benefit of any private shareholder or
individual (including, without limitation, any family members of Monroe J.
Carell, Jr. and beneficiaries of the various trusts which are Carell
Holders), no substantial part of the activities of which is carrying on
propaganda, or otherwise attempting, to influence legislation, and which
does not participate in, or intervene in (including the publishing or
distributing of statements), any political campaign on behalf of (or in
opposition to) any candidate for public office.
"Common Stock" means the shares of common stock, par value $0.01
per share, of the Company.
"Convertible Securities" means any securities of the Company or
any Affiliates thereof which are convertible into, or exchangeable for,
shares of common stock or common stock equivalents (excluding options and
warrants which are issued to employees, officers and directors in the
ordinary course of business consistent with past practice), the terms of
which satisfy the following conditions: (a) the per share price for
converting such convertible securities into, or exchanging such convertible
securities for, shares of Common Stock must be at least 18% higher than the
market price per share of Common Stock on the day before the issuance of
such convertible securities, (b) such convertible securities must not be
convertible into shares of Common Stock at any time before the three year
anniversary of the issuance of such convertible securities, except with
respect to earlier conversions related to extraordinary transactions in
accordance with market practices, (c) such convertible securities must not,
by their terms, place any restrictions on the ability of the Company to
satisfy its obligations under this Agreement, or in any manner adversely
impact the ability of any of the Holders to exercise the rights granted to
them hereunder, and (d) the terms and provisions of such Convertible
Securities must be consistent with customary market practices.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations thereunder.
"Extra Underwriting End Date" means (i) in the event that the
Extra Underwriting is consummated, the date set forth in the underwriting
agreement for the Extra Underwriting as the first day after the closing of
the Extra Underwriting that the Company, Apollo, AEW and the Carell Holders
will be allowed to effect open market sales of shares of Common Stock
without the consent of the Underwriters' Representative, (ii) in the event
that the Extra Underwriting Notice is not given prior to the date one year
following the Shelf Registration Date, such date or (iii) in the event that
the Extra Underwriting Notice is given but the Extra Underwriting is
abandoned with the concurrence of Apollo, AEW and the Carell Holders, the
date of such abandonment.
"Initial Liquidity Date" means the earliest date on which each of
Apollo, AEW and the Carell Holders shall have received gross proceeds from
the sale of Registrable Securities following the date hereof at least equal
to their respecting Initial Underwriting Amounts.
"Initial Underwriting Amount" means (i) in the case of either
Apollo or AEW, $125 million (or such lesser amount, to the extent that (A)
other Allright Holders participate in an Underwritten Offering which closes
before the Initial Liquidity Date, or (B) AEW and Apollo elect to
distribute shares of Common Stock to Cheslock, Bakker & Associates, Inc.
("CBA") before the Initial Liquidity Date (where such reduction shall be
based on the aggregate market value of the Registrable Securities
distributed to CBA by Apollo and AEW on the day prior to such transfer)),
(ii) in the case of the Carell Holders, $100 million, and (iii) in the case
of any other Holders, the product of (x) the amount of Registrable
Securities received by such Holder at the Closing multiplied by (y) a
fraction, the numerator of which is the amount of Registrable Securities
the Underwriters' Representative of the Initial Underwriting believes, at
the time the Initial Underwriting Notice is delivered to the Company, must
be sold to yield gross proceeds of $125 million to Apollo (or, in the event
that the Initial Underwriting Notice is not delivered to the Company by the
end of the Initial Underwriting Notice Period, the amount of Registrable
Securities that would be need to be sold, based on the Market Value per
share of Common Stock on the day before the last day of the Initial
Underwriting Notice Period, to yield gross proceeds of $125 million), and
the denominator of which is the amount of Registrable Securities received
by Apollo at the Closing.
"Kinney Registration Rights" means the registration rights
provided for in the registration rights agreement, dated February 12, 1998,
by and among the Company, Lewis Katz and Saul Schwartz (the "Kinney
Holders"), as in effect as of the date hereof, a complete and accurate copy
of which has been provided by the Company to Apollo and AEW.
"Market Value" means the average, rounded to the nearest cent
($0.01), of the closing price per share of Common Stock on the New York
Stock Exchange for the twenty (20) consecutive trading days ending on the
trading day immediately preceding the date in question.
"Maximum Number" when used in connection with an underwritten
offering, shall mean the number of shares of Common Stock that the
Underwriters' Representative has informed the Company may be included as
part of such offering without materially and adversely affecting the
success or pricing of such offering.
"Offering" means any Underwritten Offering, or any offering of
unregistered securities to a purchaser or purchasers for reoffering to
select investors in a transaction which is exempt from federal securities
laws.
"Person" shall mean any natural person, firm, individual,
corporation, partnership, limited liability company, joint venture,
business trust, association, trust, company or other organization or
entity, whether incorporated or unincorporated.
"Preferred Stock" means any shares of capital stock of the
Company or any Affiliate thereof which have preferential rights to
dividends or to amounts distributable upon liquidation of the Company.
"Prospectus" means the prospectus included in the Registration
Statement, as amended or supplemented by any prospectus supplement with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement and by all other
amendments and supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such prospectus.
"Public" means all stockholders of the Company, as of a given
date, excluding the Carell Holders, executive officers of the Company,
members of the Board of Directors of the Company, and all other
stockholders of the Company who then beneficially own at least 5% of the
outstanding shares of Common Stock.
"Publication Date" means the date on which the Company initially
publishes financial results reflecting the first thirty days of combined
operations of the Company and Holdings after the consummation of the
Merger.
"Registrable Securities" means, collectively, (i) the shares of
Common Stock issued to the Allright Holders in connection with the Merger
or pursuant to options or warrants held by the Allright Holders (the
"Allright Shares"), (ii) any stock or other securities into which or for
which the Allright Shares may hereafter be changed, converted or exchanged,
(iii) any other securities issued or distributed in respect of the Allright
Shares by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, reorganization, merger,
consolidation or otherwise, and (iv) that number of shares of Common Stock
that, when ultimately disposed of by the Carell Holders in one or more
transactions after the date of this Agreement, will yield gross proceeds to
the Carell Holders of $250 million (excluding transfers by the Carell
Holders to any purchasers up to that amount of shares of Common Stock
received by the Carell Holders pursuant to the contribution of assets to
the Company, as required by the Transaction Support Agreement, dated as of
the date hereof, by and among Monroe J. Carell, Jr., the Company, Apollo
and AEW (the "Exempted Transfers")).
"Registration Expenses" means any and all expenses incident to
performance of or compliance by the Company with its registration
obligations under Section 3, including, without limitation, (i) all SEC and
securities exchange registration and filing fees, (ii) all fees and
expenses of complying with securities or blue sky laws (including fees and
disbursements of counsel for any underwriters in connection with blue sky
qualifications of the Registrable Securities), (iii) all printing,
messenger and delivery expenses, (iv) all fees and expenses incurred in
connection with the listing of the Registrable Securities on any securities
exchange pursuant to Section 7(h), (v) the fees and disbursements of
counsel for the Company and of its independent public accountants, (vi) any
fees and disbursements of underwriters customarily paid by the issuers or
sellers of securities, and the reasonable fees and expenses of any special
experts retained in connection with the requested registration, and
(vii) the expenses incurred in connection with making "roadshow"
presentations and holding meetings with potential investors to facilitate
the distribution and sale of Registrable Securities.
"Registration Statement" means any registration statement of the
Company which covers Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to
such registration statements including post-effective amendments, and all
exhibits and all material incorporated by reference in such Registration
Statement.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and the rules and regulations thereunder.
"SEC" means the Securities and Exchange Commission.
"Shelf Registration Date" means (i) in the event that the Initial
Underwriting is consummated, the date set forth in the underwriting
agreement for the Initial Underwriting as the first day after the closing
of the Initial Underwriting that the Company, Apollo, AEW and the Carell
Holders will be allowed to effect open market sales of shares of Common
Stock without the consent of the Underwriters' Representative, (ii) in the
event that the Initial Underwriting Notice is not given prior to the date
nine months following the Publication Date, such date or (iii) in the event
that the Initial Underwriting Notice is given but the Initial Underwriting
is abandoned with the concurrence of Apollo, AEW and the Carell Holders,
the date of such abandonment.
"TIPS Registration Statement" means the shelf registration
statement filed on Form S-3 on June 1, 1998 (registration statements no.
333-52497 and 333-52497-01) as such registration statements may be amended
or supplemented from time to time.
"Total Market Capitalization" means the aggregate market value of
all outstanding equity securities, Preferred Stock and Convertible
Securities of the Company, and the book value of all outstanding loan
obligations and debt instruments of the Company (excluding any Convertible
Securities).
"Underwriting Amount" means that amount of shares of Common
Stock, which, when sold in an Underwritten Offering, would yield gross
proceeds of a given amount of money, as reasonably estimated by the owner
of such shares of Common Stock and the Underwriters' Representative of such
Underwritten Offering at the time such owner informs the Company of its
desire to initiate, or participate in, an Underwritten Offering.
"Underwriters' Representative" when used in connection with an
Underwritten Offering, shall mean the managing underwriter of such
offering, or, in the case of a co-managed underwriting, the managing
underwriter designated as the Underwriters' Representative by the co-
managers.
"Underwritten Offering" shall mean a registration in which
securities of the Company are sold to one or more underwriters for
reoffering to the public.
2. Securities Subject to This Agreement. The securities entitled to
the benefits of this Agreement are the Registrable Securities. For the
purposes of this Agreement, Registrable Securities will cease to be
Registrable Securities when (i) a Registration Statement covering such
Registrable Securities has been declared effective under the Securities Act
and they have been disposed of pursuant to such effective Registration
Statement, (ii) such Registrable Securities are distributed to the public
pursuant to Rule 144 and/or Rule 145 (or any similar provision then in
force) under the Securities Act, (iii) such Registrable Securities shall
have been otherwise transferred, new certificates for such Registrable
Securities not bearing a legend restricting further transfer shall have
been delivered by the Company and subsequent disposition of such
Registrable Securities shall not require registration or qualification of
such Registrable Securities under the Securities Act or any state
securities or blue sky law then in force, or (iv) such Registrable
Securities shall have ceased to be outstanding.
3. Registration Under the Securities Act.
(a) Initial Underwriting. (i) At any time after the Publication
Date and before the date nine months following the Publication Date (the
"Initial Underwriting Notice Period"), the Carell Holders, or Allright
Holders owning at least 80% of the Registrable Securities then owned by all
the Allright Holders, shall have the right to demand, by written notice
(the "Initial Underwriting Notice"), the Company to use its reasonable best
efforts to register under the Securities Act up to the Initial Underwriting
Amount for such Holder or Holders of Registrable Securities for resale by
such Holder or Holders in an Underwritten Offering (the "Initial
Underwriting"). In the event that one or more Holders deliver the Initial
Underwriting Notice, the Company shall then promptly mail written notice
thereof (a "Company Notice") to all other Holders, and then each such
Holder may then elect to participate in the Initial Underwriting by
delivering to the Company, within fifteen days after such Company Notice is
given, a written notice specifying the number of Registrable Securities
such Holders wish to have registered for resale in the Initial Underwriting
up to but not exceeding such Holder's Initial Underwriting Amount. All
rights to demand the Initial Underwriting shall expire immediately after an
Initial Underwriting Notice is properly delivered to the Company, but shall
be subject to the reinstatement provisions contained in Section 3(g).
(ii) The Registrable Securities to be sold in the Initial
Underwriting (including pursuant to any underwriters' overallotment option)
shall be allocated among the various Holders participating in the Initial
Underwriting up to but not exceeding their respective Initial Underwriting
Amounts in the following order of priority: (A) subject to pro rata
reduction to the extent that any allocations are made pursuant to clause
(C), each of Apollo and AEW shall be entitled to receive (1) 50% of the
first $100 million in gross proceeds (or, if only one of them is
participating, 100% of such gross proceeds), (2) 0% of the next $50 million
in gross proceeds, (3) 33 1/3% of the next $150 million in gross proceeds
(or, if only one of them is participating, 66 2/3% of such gross proceeds),
and (4) 50% of the next $50 million in gross proceeds (or, if only one of
them is participating, 100% of such gross proceeds); (B) the Carell Holders
shall be entitled to receive (1) 0% of the first $100 million in gross
proceeds, (2) 100% of the next $50 million in gross proceeds, (3) 33 1/3%
of the next $150 million in gross proceeds, and (4) 0% of the next $50
million in gross proceeds; and (C) any Allright Holders other than Apollo
or AEW shall be entitled to receive a percentage of the gross proceeds
allocated to Apollo and AEW hereunder equal to the percentage represented
by the number of Registrable Securities then held by such Allright Holder
divided by the number of Registrable Securities then held by all Allright
Holders participating in the Initial Underwriting. In the event that there
shall be gross proceeds in excess of $350 million and the Company shall
determine not to allocate such excess to shares of Common Stock to be sold
by the Company, the Holders shall be allocated additional Registrable
Securities to be sold in proportion to their holding of all remaining
Registrable Securities.
(b) Shelf Registration. (i) The Company shall use its
reasonable best efforts to promptly process, file and cause to become
effective a Registration Statement on Form S-3 (the "Shelf") for an
offering to be made on a delayed or continuous basis pursuant to Rule 415
under the Securities Act (or any similar rule that may be adopted by the
SEC) and permitting sales in ordinary course brokerage or dealer
transactions not involving an Underwritten Offering, the initial filing to
be made not later than 30 days before the Shelf Registration Date in the
event that the Initial Underwriting is consummated or 30 days after the
Shelf Registration Date in the event that the Initial Underwriting Notice
is not given or the Initial Underwriting is abandoned. Each Allright
Holder which owns, on the date of the initial filing of the Shelf (the
"Initial Filing Date"), Registrable Securities (each such Holder, an
"Eligible Holder") shall have the right to resell such Registrable
Securities under the Shelf until the date that such Eligible Holder sells
all of such Registrable Securities, whether or not under the Shelf (such
Eligible Holder's "Termination Date"). The Carell Holders shall have the
right to resell that amount of Registrable Securities under the Shelf which
has an aggregate Market Value, on the Initial Filing Date, of (a) $150
million, plus (b) the Initial Underwriting Amount of the Carell Holders,
less (c) the gross proceeds received by the Carell Holders in all sales of
Registrable Securities before the Initial Filing Date (excluding gross
proceeds received in the Exempted Transfers). The Carell Holders shall
lose their right to sell under the Shelf once they have sold, in one or
more transactions occurring after the Initial Filing Date, whether in the
Initial Underwriting, the Extra Underwriting, under the Shelf or otherwise,
at least that amount of shares of Common Stock equal to the amount of
Registrable Securities of the Carell Holders registered under the Shelf
pursuant to this Section 3(b)(i) (the Carell Holders' "Termination Date").
The Company agrees to use its reasonable best efforts to keep the Shelf
continuously effective and usable for resale of Registrable Securities
until all Eligible Holders lose their rights to resell Registrable
Securities under the Shelf.
(ii) The Company agrees to include within the Method of
Distribution for the Shelf the possible distribution by the Allright
Holders to their respective investors of the Registrable Securities held by
them; provided, that nothing herein shall restrict an Allright Holder from
distributing Registrable Securities to its investors under the Shelf before
it receives gross proceeds of at least its Initial Underwriting Amount, or
sells an amount of Registrable Securities equal to at least its Initial
Underwriting Amount. No Allright Holder may, however, transfer to its
investors any registration rights granted hereunder when distributing
Registrable Securities to such investors, unless the Company has failed to
cause the Shelf to become effective within 45 days after the Shelf
Registration Date.
(iii) Each Allright Holder agrees that, in the event that it
shall have received gross proceeds of at least its Initial Underwriting
Amount, or sold that amount of Registrable Securities equal to at least its
Initial Underwriting Amount, with respect to one or more sales of
Registrable Securities (whether in the Initial Underwriting, the Extra
Underwriting (as defined in Section 3(c)), resales under the Shelf or
otherwise), it shall be restricted from reselling Registrable Securities
under the Shelf until the Carell Holders shall have received gross proceeds
of at least $100 million in one or more sales of Registrable Securities
(whether in the Initial Underwriting, the Extra Underwriting, resales under
the Shelf or otherwise) after the date of this Agreement. The Carell
Holders agree that, in the event that they shall have received gross
proceeds of at least $100 million with respect to one or more sales of
Registrable Securities (whether in the Initial Underwriting, the Extra
Underwriting, resales under the Shelf or otherwise), they shall be
restricted from reselling Registrable Securities under the Shelf until each
of Apollo and AEW shall have received gross proceeds of at least its
Initial Underwriting Amount in one or more sales of Registrable Securities
(whether in the Initial Underwriting, the Extra Underwriting, resales under
the Shelf or otherwise) after the Closing. Each of Apollo, AEW and the
Carell Holders agrees to promptly notify the Company and each other in
writing at such time that it has received sufficient gross proceeds for it
to become restricted from resales pursuant to this Section 3(b)(iii).
Notwithstanding the foregoing, nothing herein shall restrict the ability of
any Holder to distribute Registrable Securities to its investors.
(iv) In the event that one or more Holders exercises a Demand
Right (as defined in Section 3(c)), then each Eligible Holder (including
the Holder or Holders exercising such Demand Right and regardless of
whether or not such Eligible Holder elects to participate in the Extra
Underwriting related to such Company Notice) may not sell any Registrable
Securities under the Shelf at any time after 30 days after receiving such
Company Notice and before the Extra Underwriting End Date; provided, that
nothing herein shall limit the ability of an Allright Holder to distribute
Registrable Securities to its investors.
(v) The Company shall have the right, at any time after the
Allright Holders, collectively, own less than 7% of all the Registrable
Securities received by the Allright Holders in the Merger, to terminate the
Shelf and promptly process and file, and use its reasonable best efforts to
cause to become effective, a Registration Statement on Form S-3 (the
"Second Shelf") for an offering to be made on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act (or any similar rule that may
be adopted by the SEC) and permitting sales in ordinary course brokerage or
dealer transactions not involving an Underwritten Offering. The Company
must register for resale under the Second Shelf all Registrable Securities
that were registered for resale under the Shelf at the time the Shelf is
terminated, but may also register for sale under the Second Shelf all
shares of Common Stock, and any other securities of the Company, that the
Company desires to register for resale at such time. The Company shall
cause the Second Shelf to remain effective at least up to the date until
which the Company would, under the terms of this Agreement, be required to
maintain the effectiveness of the Shelf, if otherwise not terminated
pursuant to this Section 3(b)(v). The Holders shall not have any
restrictions on their ability to resell Registrable Securities under the
Second Shelf which are greater than the restrictions on their ability to
resell Registrable Securities under the Shelf.
(c) Extra Underwriting. (i) In the event that, as of the date
of the giving of the Extra Underwriting Notice referred to below, either
Apollo or AEW shall have failed to receive gross proceeds of at least its
Initial Underwriting Amount from selling Registrable Securities or the
Carell Holders shall have failed to receive gross proceeds of at least $100
million from selling Registrable Securities, each of (A) AEW and/or Apollo,
if AEW and/or Apollo shall have failed to receive such gross proceeds,
together with all other Allright Holders who have failed to sell that
amount of Registrable Securities equal to at least their respective Initial
Underwriting Amounts, by agreement of Allright Holders owning at least 60%
of the Registrable Securities then owned by all the Allright Holders, (B)
and the Carell Holders, if they have failed to receive gross proceeds of at
least their Initial Underwriting Amount, shall have the right, at any time
commencing on the Shelf Registration Date and ending on the twelve month
anniversary of the Shelf Registration Date (the "Extra Underwriting Notice
Period"), to demand (a "Demand Right"), by written notice (an "Extra
Underwriting Notice"), the Company to use its reasonable best efforts to
register under the Securities Act up to the Initial Underwriting Amount of
such Holder or Holders, less the amount of gross proceeds received by, or
the amount of Registrable Securities sold by, such Holder in the Initial
Underwriting, if any, and in any other sales of Registrable Securities
after the Shelf Registration Date, for resale by such Holder or Holders in
an Underwritten Offering (the "Extra Underwriting"). In the event that
one or more of such Holders deliver the Extra Underwriting Notice, the
Company shall then promptly mail a Company Notice to all other Holders who
shall have failed to receive gross proceeds of at least their respective
Initial Underwriting Amounts, or to sell that amount of Registrable
Securities equal to at least their respective Initial Underwriting Amounts,
and then each such other Holder may then elect to participate in the Extra
Underwriting by delivering to the Company, within fifteen days after such
Company Notice is given, a written notice specifying the number of
Registrable Securities such Holders wish to have registered for resale in
the Initial Underwriting up to but not exceeding such Holder's Initial
Underwriting Amount, less the amount of gross proceeds received by such
Holder, or that amount of Registrable Securities sold by such Holder, in
the Initial Underwriting, if any, and in any other sales of Registrable
Securities after the date hereof. The Company shall use its reasonable
best efforts to promptly (but in no event later than fifteen Business Days
after receipt of the Extra Period Demand Notice) supplement or amend the
Shelf, including the Method of Distribution or similar section therein, or,
in the event that the Shelf shall not have been filed, to promptly process,
file and cause to become effective a Registration Statement on Form S-3, in
order to cover registration of the resale of all of the Registrable
Securities properly requested to be registered pursuant to this Section
3(c)(i) by the Holders. All Demand Rights shall expire immediately after
an Extra Underwriting Notice is properly delivered to the Company, but
shall be subject to the reinstatement provisions contained in Section 3(g).
(ii) The Registrable Securities to be sold in the Extra
Underwriting (including pursuant to any underwriters' overallotment option)
shall be allocated among the various Holders participating in the Extra
Underwriting up to but not exceeding their respective Initial Underwriting
Amounts in the same order of priority set forth in Section 3(a)(ii), except
that for purposes of this Section 3(c)(ii) determinations of the gross
proceeds received by any Holder shall be deemed to include gross proceeds
received from the sale of any Registrable Securities following the date
hereof and through and including the Extra Underwriting, and determinations
of the amount of Registrable Securities sold by any Holder shall be deemed
to include any sales of Registrable Securities following the date hereof
and through and including the Extra Underwriting, but shall not be deemed
to include the distribution of Registrable Securities by a Holder to its
investors.
(d) Incidental Registration. If at any time the Company
proposes to register any of its Common Stock under the Securities Act after
the date hereof (other than in connection with any acquisition or business
combination transaction and other than in connection with stock options and
employee benefit plans and compensation) either in connection with a
primary offering for cash for the account of the Company, a secondary
offering or a combined primary and secondary offering, the Company will,
each time it intends to effect such a registration, give a Company Notice
to all Holders whose Termination Date shall not have occurred at least 15
Business Days prior to the initial filing of a registration statement with
the SEC pertaining thereto, informing such Holders of its intent to file
such registration statement and of the Holders' right to request the
registration of the Registrable Securities held by the Holders. Upon the
written request of one or more of the Holders made within 10 business days
after any such Company Notice is given (which request shall specify the
Registrable Securities intended to be disposed of by each such Holder, and,
unless the applicable registration is intended to effect a primary offering
of Common Stock for cash for the account of the Company, the intended
method of distribution thereof), the Company will use its reasonable best
efforts to effect the registration under the Securities Act of all
Registrable Securities, which the Company has been so requested to register
by one or more Holders to the extent required to permit the disposition (in
accordance with the intended methods of distribution thereof or, in the
case of a registration which is intended to effect a primary offering for
cash for the account of the Company, in accordance with the Company's
intended method of distribution) of the Registrable Securities so requested
to be registered, including, if necessary, by filing with the SEC a post-
effective amendment or a supplement to the registration statement filed by
the Company or the related prospectus or any document incorporated therein
by reference or by filing any other required document or otherwise
supplementing or amending the registration statement filed by the Company,
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such registration statement or by
the Securities Act, any state securities or blue sky laws, or any rules and
regulations thereunder; provided, however, that if, at any time after
giving written notice of its intention to register any securities and prior
to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
register or to delay such registration of the securities, the Company shall
give written notice of such determination to each Holder of Registrable
Securities and, thereupon, (A) in the case of a determination not to
register, the Company shall be relieved of its obligation to register any
Registrable Securities in connection with such registration, and (B) in the
case of a determination to delay such registration, the Company shall be
permitted to delay registration of any Registrable Securities requested to
be included in such registration statement for the same period as the delay
in registering such other securities.
(e) Underwriter Limitations. (i) If, in connection with an
Underwritten Offering other than the Initial Underwriting or the Extra
Underwriting, the Underwriters' Representative of the offering registered
thereon shall inform the Company in writing that in its opinion there is a
Maximum Number of shares of Common Stock that may be successfully included
therein; then (a) in the event such Registration Statement relates to an
offering initiated by the Company of Common Stock being offered for the
account of the Company, the Company may include in such registration the
number of shares it proposes to offer and, if such number is less than the
Maximum Number, then the number of shares of Common Stock requested to be
included in such registration by any Person other than the Company may be
reduced, pro rata in proportion to the number of shares of Common Stock
owned by such Persons requesting to participate in such offering, to the
extent necessary to reduce the respective total number of shares of Common
Stock requested to be included in such offering to the Maximum Number, and
(b) in the event such a Registration Statement is initiated by any Person
other than the Company or a Holder, such Person shall have the right, in
its sole discretion, to include in such registration the number of shares
of Common Stock it proposes to offer and, if such number is less than the
Maximum Number, then the number of shares of Common Stock requested to be
included by any other Person may be reduced pro rata in proportion to the
number of shares of Common Stock owned by such Persons, to the extent
necessary to reduce the respective total number of shares of Common Stock
requested to be included in such offering to the Maximum Number.
(ii) Notwithstanding Section 3(e)(i), in the event that the
Company decides to conduct an Underwritten Offering other than the Initial
Underwriting and the Extra Underwriting, and at such time any of Apollo,
AEW or the Carell Holders shall have failed to receive gross proceeds from
the sale of Registrable Securities since the date hereof at least equal to
at least their respective Initial Underwriting Amounts, and if the
Underwriters' Representative of such Underwritten Offering shall inform the
Company in writing that in its opinion there is a Maximum Number of shares
of Common Stock that may be successfully included therein beyond the number
of shares to be sold by the Company, then each of the above Holders who
shall have so failed to receive such gross proceeds, and all other Holders
who shall have failed to sell that amount of Registrable Securities equal
to their respective Initial Underwriting Amounts, may include in such
registration that number of Registrable Securities which, in the opinion of
the Underwriters' Representative, when sold would yield gross proceeds
sufficient to bring each such Holder's gross proceeds from the sale of
Registrable Securities after the date hereof to such Holder's Initial
Underwriting Amount, or would allow each such Holder to sell an amount of
Registrable Securities which would bring each such Holder's amount of
Registrable Securities sold to its Initial Underwriting Amount. To the
extent that the Maximum Number is insufficient to accomplish the foregoing,
the Registrable Securities to be sold in such Underwritten Offering
(including pursuant to any underwriters' overallotment option) shall be
allocated among the various Holders participating in such Underwritten
Offering up to but not exceeding their respective Initial Underwriting
Amounts in the same order of priority set forth in Section 3(a)(ii).
(iii) Notwithstanding the foregoing, any reduction of the shares
of Common Stock requested by a Person to be included in any Registration
Statement pursuant to this Section 3(e) shall be limited to the extent such
reduction would place the Company in breach of any presently existing
contractual obligations that it might have.
(f) Company Limitations. (i) The Company hereby agrees that,
until the earlier to occur of the Extra Underwriting End Date and the
Initial Liquidity Date, it will not (i) sell any shares of Common Stock
other than (A) pursuant to the Merger, (B) to the Carell Holders, to the
extent the issuance of such shares of Common Stock is required by Section
5.14 of the Merger Agreement, (C) pursuant to mergers, acquisitions and
purchases involving the Company and/or its Affiliates whereby the Company
issues shares of Common Stock which are not registered under the Securities
Act and which either (1) have an aggregate value of no more than $10
million (where the value of a share of Common Stock issued pursuant to a
given transaction is determined based on the closing price per share of
Common Stock on the trading day immediately preceding the date on which
such transaction occurred), or (2) are not transferable by the holders
thereof for at least two years from the respective dates of issuance, or
(D) upon exercise of options or conversion of other securities outstanding
as of the date of this Agreement, or options or other securities issued to
employees, officers and directors after the date of this Agreement in the
ordinary course of business consistent with past practice, with or without
registration under the Securities Act, without first providing for the sale
of Registrable Securities as contemplated by Section 3(a)(ii), (ii) permit
any Underwritten Offering, not for the account of the Company, involving
the sale of shares of Common Stock other than the Initial Underwriting, the
Extra Underwriting, the TIPS Registration Statement and any Underwritten
Offering required by the Kinney Registration Rights, (iii) grant to any
Holder, or any Person included within the Carell Holders, registration
rights not provided for in this Agreement as of the date hereof, or waive
any conditions herein with respect to any Holder, or any Person included
within the Carell Holders, without waiving such conditions with respect to
all other Holders, (iv) otherwise facilitate a sale by any Person with the
Holders of shares of Common Stock, (v) grant registration rights to any
Person which would permit such Person to participate in the Initial
Underwriting, the Shelf or the Extra Underwriting, or to have such Person's
shares of Common Stock registered for resale, prior to the Initial
Liquidity Date, or (vi) grant to any Person registration rights that
contemplate Underwritten Offerings which preclude the exercise of the
customary "piggyback" rights granted to certain Holders in Section 3(d).
(ii) Furthermore, during the period of time beginning on the
date hereof and ending on the Shelf Registration Date, or, in the event
that the Underwriters' Representative of the Initial Underwriting provides
the Company with its written consent to a plan by the Company to conduct an
Offering of Preferred Stock or Convertible Securities during the Lockout
Period (as hereinafter defined) related to the Initial Underwriting, ending
on the closing of the Initial Underwriting, the Company may not sell any
shares of Preferred Stock or Convertible Securities, and during the period
of time beginning on the day after the Shelf Registration Date and ending
on the earlier to occur of the Extra Underwriting End Date and the Initial
Liquidity Date, the Company may not sell shares of Preferred Stock and/or
Convertible Securities if, after consummation of such sale, the aggregate
market value of the Preferred Stock and/or Convertible Securities
outstanding (as calculated on the day such transaction is completed) is
greater than the lesser of (a) 20% of the Company's Total Market
Capitalization (as calculated on the day such transaction is completed),
and (b) 50% of the market value of the outstanding shares of Common Stock
held by the Public on the day such transaction is completed. The Company
hereby agrees that in the event that it elects to conduct an Offering of
Preferred Stock or Convertible Securities, it will promptly mail a Company
Notice to all Holders who shall have then failed to receive gross proceeds
of at least their respective Initial Underwriting Amounts, or to sell that
amount of Registrable Securities equal to at least their respective Initial
Underwriting Amounts. Each such Holder may then elect to participate in
such Offering by delivering to the Company, within fifteen days after such
Company Notice is given, a written notice specifying the number of
Registrable Securities such Holder wishes to have sold in such Offering up
to but not exceeding such Holder's Initial Underwriting Amount, less the
amount of gross proceeds received by such Holder, or that amount of
Registrable Securities sold by such Holder, in the Initial Underwriting, if
any, and in any other sales of Registrable Securities after the date
hereof. In the event that one or more Holders elects to participate in an
Offering, the Company hereby agrees that it will include the offering of
Registrable Securities by such Holder or Holders in any "roadshow"
marketing efforts conducted by the Company in connection with such
Offering. In the event that a Holder sells Registrable Securities in an
Offering, regardless of whether or not such Offering is covered by a
registration statement filed by the Company, such Holder shall be subject
to the provisions of Section 6 of this Agreement, to the extent that the
Underwriters' Representative, or, in the event an Offering is not conducted
on a "firm commitment" underwritten basis, the substantial equivalent of an
Underwriters' Representative (the "Lead Purchaser"), asks participating
sellers to refrain from selling shares of Common Stock during a Lockout
Period (as hereinafter defined). No Holder, however, shall be obligated to
refrain from selling shares of Common Stock during a Lockout Period
relating to an Offering of Convertible Securities or Preferred Stock if
such Holder did not participate in such Offering.
(iii) In the event that Holders participate in an Offering of
Convertible Securities or Preferred Stock, then the Extra Underwriting
Notice Period shall be deemed not to continue to run during that period of
time beginning on the first date that a Holder or Holders notifies the
Company of its or their desire to participate in such Offering, and ending
on the date that the Underwriters' Representative or the Lead Purchaser of
such Offering selects as the first day that the participating sellers may
sell shares of Common Stock after the closing of such Offering, or, in the
event that such Offering is not consummated, on the date such Offering is
abandoned (an "Offering End Date"). Such extension of the Extra
Underwriting Notice Period shall only be deemed to occur, however, in the
event that an Offering End Date occurs before the Initial Liquidity Date.
For purposes of this Agreement, participation in an Offering of Convertible
Securities or Preferred Stock by one or more Holders shall not be deemed to
be an exercise of a Demand Right or a right to demand the Initial
Underwriting.
(g) Pricing Determinations. (i) The Carell Holders and (ii)
representatives of the Allright Holders electing to participate in the
Initial Underwriting and/or the Extra Underwriting, such representatives to
be selected by Allright Holders owning a majority of the Registrable
Securities being offered by the Allright Holders for resale in such
Underwritten Offering, shall mutually determine the offering price per
share and underwriting discounts that shall apply in the Initial
Underwriting and the Extra Underwriting, subject to the right of (i) any
such Holder to withdraw its Registrable Securities from such Underwritten
Offering should it be dissatisfied with the proposed offering price per
share or underwriting discount, and (ii) any non-withdrawing Holders to
include additional Registrable Securities in such Underwritten Offering to
replace shares withdrawn by another Holder. In the event that the Company
refuses to execute the underwriting agreement related to the Initial
Underwriting or the Extra Underwriting, and subsequently the Initial
Underwriting or the Extra Underwriting, as the case may be, is abandoned,
then all rights to demand the Initial Underwriting or the Extra
Underwriting, as the case may be, shall be restored, and the Initial
Underwriting Notice Period or the Extra Underwriting Notice Period, as the
case may be, shall be reinstated for that amount of days equal to the
difference between (x) the amount of days comprising such period, less (y)
the amount of days that lapsed in such period before the Initial
Underwriting Notice or the Extra Underwriting Notice, as the case may be,
was delivered to the Company.
(h) Kinney Registration Rights. The registration rights granted
hereunder shall be subordinate to the Kinney Registration Rights; provided,
that, in the event that the Kinney Holders exercise a "demand" Kinney
Registration Right during the Extra Underwriting Notice Period and before
the Extra Underwriting Notice is properly delivered to the Company, or
during the Initial Underwriting Notice Period and before the Company
receives a demand for the Initial Underwriting, then the Extra Underwriting
Notice Period or the Initial Underwriting Notice Period, as the case may
be, shall be deemed not to continue to run during that period of time
beginning on the date a "demand" Kinney Registration Right is exercised and
ending on the date that the Underwriters' Representative of the
Underwritten Offering related to such exercise selects as the first day
that the Company and the Kinney Holders may sell shares of Common Stock
after the closing of such Underwritten Offering, or, in the event that such
Underwritten Offering is not consummated, on the date such Underwritten
Offering is abandoned (a "Kinney Offering End Date"). Such extension of
the Extra Underwriting Notice Period or the Initial Underwriting Notice
Period shall only be deemed to occur, however, in the event that a Kinney
Offering End Date occurs before the Initial Liquidity Date.
(i) Sales of Registrable Securities. For purposes of this
Agreement, the following transfers of Registrable Securities shall not be
deemed to be "sales" of Registrable Securities: (i) the transfers of
shares among Persons comprising an individual Holder, (ii) pledges of
shares permitted under Section 11(d), (iii) transfers of shares by Apollo
and AEW to CBA, (iv) the Exempted Transfers, (v) donations of shares by the
Holders which are made to Charitable Organizations, and (vi) any
distribution of shares by an Allright Holder to its investors.
4. Blackout Period. The Company shall be entitled to elect that a
Registration Statement not be usable, for a reasonable period of time, but
not in excess of 30 days, with respect to a Registration Statement relating
to the Initial Underwriting, or 90 days, with respect to a Registration
Statement related to any other sale of Registrable Securities (a "Blackout
Period"), if the Company determines in good faith that the registration and
distribution of Registrable Securities (or the use of the Registration
Statement or related Prospectus) would interfere with any pending material
financing, acquisition, corporate reorganization or any other material
corporate development involving the Company or any of its subsidiaries or
would require premature disclosure thereof and promptly gives the Holders
of Registrable Securities written notice of such determination, and if
requested by Holders, the Company will promptly deliver to it or them a
general statement of the reasons for such postponement or restriction on
use and an approximation of the anticipated delay; provided, however, that
the aggregate number of days included in all Blackout Periods, when taken
together with any Lockout Periods and Suspension Periods, during any
consecutive 12 months after the Publication Date shall not exceed 180 days
(or such longer period of time, to the extent that the Underwriters'
Representative of the Initial Underwriting requests a Lockout Period for
the Company and the Holders of longer than 90 days after the Initial
Underwriting).
5. Selection of Underwriters. Subject to the right of Central, the
Carell Holders and representatives of the Allright Holders electing to
participate in the Initial Underwriting and/or the Extra Underwriting, such
representatives to be selected by Allright Holders owning a majority of the
Registrable Securities being offered for resale by the Allright Holders in
such Underwritten Offering, to jointly determine otherwise, (i) Bear
Stearns & Co. Inc. shall be the lead-managing underwriter of the Initial
Underwriting and the Extra Underwriting, shall manage the "book" related to
such Underwritten Offerings, and shall be the Underwriters' Representative
of such Underwritten Offerings and (ii) NationsBanc Montgomery Securities
LLC and J.C. Bradford & Co. shall each be a co-managing underwriter with
respect to such Underwritten Offerings.
6. Holdback Agreement.
(a) If so requested by the Underwriters' Representative in
connection with an offering of shares of Common Stock covered by a
registration statement filed by the Company, the Holders participating in
such Underwritten Offering, and all other Holders who are Affiliates of
Central at the time of such Underwritten Offering, shall agree not to
effect any sale or distribution of the Registrable Securities other than
pursuant to such Underwritten Offering, including a sale pursuant to Rule
144, without the prior written consent of the Underwriters' Representative
(which if given to any such Holder shall be deemed to be given to all such
Holders), during the 7-day period prior to, and during the 90-day period
beginning on, the date such registration statement or amendment to such
registration statement is declared effective under the Securities Act by
the SEC or, with respect to the Initial Underwriting, for a longer period
of time if so requested by the Underwriters' Representative of the Initial
Underwriting (any such period, a "Lockout Period"); provided that the
Holders are timely notified of such effective date in writing by the
Company or the Underwriters' Representative. The Holders shall not be
subject to Lockout Periods for longer than 97 days (or such longer period
of time, to the extent that the Underwriters' Representative of the Initial
Underwriting requests a Lockout Period for the Company and the Holders of
longer than 90 days after the Initial Underwriting) during any 12-month
period and shall not be subject to Lockout Periods, when taken together
with any Blackout Periods and Suspension Periods, during any consecutive 12
months after the Publication Date in excess of 180 days (or such longer
period of time, to the extent that the Underwriters' Representative of the
Initial Underwriting requests a Lockout Period for the Company and the
Holders of longer than 90 days after the Initial Underwriting). A Holder
shall no longer be subject to such restrictions following such Holder's
Termination Date.
(b) If so requested by the Underwriters' Representative in
connection with an Underwritten Offering of any Registrable Securities, the
Company shall agree not to effect any sale or distribution of shares of
Common Stock without the prior written consent of the Underwriters'
Representative (other than in connection with any acquisition or business
combination transaction and other than in connection with stock options and
employee benefit plans and compensation) during the 7-day period prior to,
and during the 90-day period beginning on, the date the registration
statement or amendment to a registration statement relating to such
Underwritten Offering is declared effective under the Securities Act by the
SEC or, with respect to the Initial Underwriting, for a longer period of
time if so requested by the Underwriters' Representative of Initial
Underwriting, and shall use its reasonable best efforts to obtain and
enforce similar agreements from any other Persons if requested by the
Underwriters' Representative.
(c) Notwithstanding anything else in this Section 6 to the
contrary, no Holder shall be precluded from distributing to its investors
the Registrable Securities as set forth in Section 3(b)(ii).
7. Registration Procedures. If and whenever the Company is required
to use its reasonable best efforts to effect or cause the registration of
any Registrable Securities under the Securities Act as provided in this
Agreement and the Merger Agreement, the Company will as expeditiously as
possible and without limiting any time period set forth elsewhere in this
Agreement:
(a) Subject to the requirements to file the Registration
Statement on Form S-4 pursuant to the Merger Agreement, prepare and file
with the SEC a Registration Statement with respect to such Registrable
Securities on a form for which the Company then qualifies or which counsel
for the Company shall deem appropriate, and which form shall be available
for the sale of the Registrable Securities in accordance with the intended
methods of distribution thereof, and use its reasonable best efforts to
cause such Registration Statement to become effective as promptly as
practicable after filing and to keep such Registration Statements effective
as provided in Section 3; provided that, a reasonable time before filing a
Registration Statement or Prospectus or any amendments or supplements
thereto (other than reports required to be filed by it under the Exchange
Act and the rules and regulations adopted by the SEC thereunder), the
Company will furnish to the Holders of Registrable Securities covered by
such Registration Statement and their counsel for review and comment copies
of all documents proposed to be filed;
(b) prepare and file with the SEC amendments and post-effective
amendments to each such Registration Statement and such amendments and
supplements to the Prospectus used in connection therewith as may be
necessary to maintain the effectiveness of such registration or as may be
required by the rules, regulations or instructions applicable to the
registration form utilized by the Company or by the Securities Act for
shelf registration or otherwise necessary to keep such Registration
Statement effective for the applicable period and cause the Prospectus as
so supplemented to be filed pursuant to Rule 424 under the Securities Act,
and to otherwise comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement until such time as all of such securities have been disposed of
in accordance with the intended methods of disposition set forth in such
Registration Statement and Prospectus;
(c) furnish to each Holder of such Registrable Securities such
number of copies of such Registration Statement and of each amendment and
post-effective amendment thereto (in each case including all exhibits), the
Prospectus and Prospectus supplement, as applicable, and such other
documents as such Holder may reasonably request in order to facilitate the
disposition of the Registrable Securities by such Holder (the Company
hereby consenting to the use (subject to the limitations set forth in the
last paragraph of this Section 7) of the Prospectus or any amendment or
supplement thereto in connection with such disposition);
(d) use its reasonable best efforts to register or qualify such
Registrable Securities covered by such Registration Statement under such
other securities or blue sky laws of such jurisdictions as each Holder
shall reasonably request, and do any and all other acts and things which
may be reasonably necessary or advisable to enable such Holder to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such Holder, except that the Company shall not for any
such purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction where, but for the requirements of this
Section 7(d), it would not be obligated to be so qualified, to subject
itself to taxation in any such jurisdiction, or to consent to general
service of process in any such jurisdiction;
(e) notify each Holder of any such Registrable Securities
covered by such Registration Statement at any time when a Prospectus
relating thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in Section 7(b), of the Company's
becoming aware that the Prospectus included in such Registration Statement,
as then in effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing, and at the request of any such Holder prepare and furnish to such
Holder a reasonable number of copies of an amendment or supplement to the
Registration Statement or related Prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such Registrable Securities,
such Prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances
then existing;
(f) notify each Holder of Registrable Securities covered by such
Registration Statement at any time
(1) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the
same has become effective,
(2) of any request by the SEC for amendments or supplements
to the Registration Statement or the Prospectus or for additional
information, and of any comments, oral or written, by the SEC
with respect thereto,
(3) of the issuance by the SEC of any stop order suspending
the effectiveness of the Registration Statement or the initiation
of any proceedings for that purpose,
(4) if at any time the representations and warranties of
the Company contemplated by paragraph (i)(1) below cease to be
true and correct, and
(5) of the receipt by the Company of any notification with
respect to the suspension of qualification or exemption from
qualification of the Registrable Securities for offering or sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
(g) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable (but not more than
eighteen months) after the effective date of the Registration Statement, an
earnings statement which shall satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations promulgated thereunder;
(h) cause all such Registrable Securities to be listed on any
securities exchange on which the Common Stock is then listed, if such
Registrable Securities are not already so listed and if such listing is
then permitted under the rules of such exchange, and to provide a transfer
agent, CUSIP number and registrar for such Registrable Securities covered
by such Registration Statement no later than the effective date of such
Registration Statement;
(i) enter into agreements (including underwriting agreements)
and take all other appropriate actions in order to expedite or facilitate
the disposition of such Registrable Securities and in such connection,
whether or not an underwriting agreement is entered into and whether or not
the registration is an Underwritten Offering:
(1) make such representations and warranties to the Holders
of such Registrable Securities, limited, as to such Holders, to
the extent such representations and warranties are based solely
on representations and warranties made by such Holders, and the
underwriters, if any, and agree to such indemnification and
contribution agreements, in form, substance and scope as are
customarily made by issuers to underwriters in comparable
underwritten offerings;
(2) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the underwriters,
if any, the Holders of the Registrable Securities being sold)
addressed to each such Holder and the underwriters, if any,
covering the matters customarily covered in opinions requested in
comparable underwritten offerings and such other matters as may
be reasonably requested by such Holders and such underwriters;
(3) obtain "cold comfort" letters and updates thereof from
the Company's independent certified public accountants addressed
to the selling Holders of Registrable Securities and the
underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "cold
comfort" letters by underwriters in connection with comparable
underwritten offerings;
(4) if requested, provide the indemnification in accordance
with the provisions and procedures of Section 9 hereof to all
parties to be indemnified pursuant to said Section; and
(5) deliver such documents and certificates as may be
reasonably requested by Apollo, AEW or the Carell Holders and the
underwriters, if any, to evidence compliance with clause (f)
above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company;
provided, that the matters set forth in this Section 7(i) shall be effected
at each closing under any underwriting or similar agreement as and to the
extent required thereunder and that nothing in this Section 7(i) shall be
interpreted in any manner which would increase the liability of the Company
to the Holders beyond those provided for in Section 9;
(j) cooperate with the Holders of Registrable Securities covered
by such Registration Statement and the underwriter or underwriters, if any,
to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing the securities to be sold
under such Registration Statement, and enable such securities to be in such
denominations and registered in such names as the underwriter or
underwriters, if any, or such Holders may reasonably request;
(k) if requested by the underwriter or underwriters or a Holder
of Registrable Securities being sold in connection with an Underwritten
Offering, immediately incorporate in a Prospectus supplement or post-
effective amendment such information as the underwriters and the Holders of
the Registrable Securities being sold, agree should be included therein
relating to the plan of distribution with respect to such Registrable
Securities, including, without limitation, information with respect to the
principal amount of Registrable Securities being sold to such underwriters,
the purchase price being paid therefor by such underwriters and with
respect to any other terms of the underwritten offering of the Registrable
Securities to be sold in such offering and make all required filings of
such Prospectus supplement or post-effective amendment promptly upon being
notified of the matters of be incorporated in such Prospectus supplement or
post-effective amendment;
(l) in the event of the Initial Underwriting and the Extra
Underwriting, participate in any "roadshow" marketing efforts reasonably
requested by the underwriters; and
(m) make available for inspection by any Holder of Registrable
Securities included in such Registration Statement any underwriter
participating in any disposition pursuant to such Registration Statement,
and any attorney, accountant or other agent retained by any such Holder or
underwriter (collectively, the "Inspectors"), all financial and other
records and other information, pertinent corporate documents and properties
of any of the Company and its subsidiaries and affiliates (collectively,
the "Records"), as shall be reasonably necessary to enable them to exercise
their due diligence responsibility.
The Company may require each Holder of Registrable Securities as
to which any registration is being effected to furnish the Company with
such information regarding such Holder and pertinent to the disclosure
requirements relating to the registration and the distribution of such
securities as the Company may from time to tine reasonably request in
writing.
Each Holder of Registrable Securities agrees that, upon receipt
of any notice (the "Suspension Notice") from the Company of the happening
of any event of the kind described in Section 7(e), such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to the
Prospectus or Registration Statement covering such Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 7(e), and, if so directed by the
Company, such Holder will use its reasonable best efforts to deliver to the
Company (at the Company's expense) all copies, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice. The
Company will use its reasonable best efforts to ensure that no Suspension
Period exceeds 30 days. The Company shall not be permitted to give more
than one Suspension Notice during any period of 12 consecutive months or to
cause the aggregate number of days included in all Suspension Periods, when
taken together with any Blackout Periods and Lockout Periods, during any
consecutive 12 months after the Publication Date to exceed 180 days (or
such longer period of time, to the extent that the Underwriters'
Representative of the Initial Underwriting requests a Lockout Period for
the Company and the Holders of longer than 90 days after the Initial
Underwriting).
8. Registration Expenses. With respect to the Initial Underwriting
and the Extra Underwriting but not any other Underwritten Offering in which
they may participate, the Holders participating as sellers shall, on a pro-
rata basis based on the amount of Registrable Securities sold by each
seller in such Underwritten Offering, pay all Registration Expenses
incurred in connection with the Registrable Securities sold by such
holders; provided, that if, within two years following the closing of
either such Underwritten Offering, the Company provides reimbursement of
any such expenses to any Holder, it will provide pro rata reimbursement to
all Holders. Each such Holder will also be responsible for the payment of
its own underwriting discounts, commissions and transfer taxes, if any,
relating to the sale or disposition of such Registrable Securities and any
of its own expenses, including the fees and expenses of any counsel
retained by it.
9. Indemnification; Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify each Holder of Registrable Securities, its officers and directors
and each Person who controls such Holder (within the meaning of the
Securities Act) and any agent or investment adviser thereof against all
losses, claims, damages, liabilities and expenses (including reasonable
attorneys' fees and expenses of investigation) incurred by such party
pursuant to any actual or threatened action, suit, proceeding or
investigation arising out of or based upon (i) any untrue or alleged untrue
statement of material fact contained in a Registration Statement, any
Prospectus or preliminary Prospectus, or any amendment or supplement to any
of the foregoing or (ii) any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein (in the case of a Prospectus or a preliminary
Prospectus, in light of the circumstances then existing) not misleading,
except in each case insofar as the same arise out of or are based upon, any
such untrue statement or omission made in reliance on and in conformity
with (i) information with respect to such indemnified party furnished in
writing to the Company by such indemnified party or its counsel expressly
for use therein, or (ii) with respect to Apollo and AEW, the
representations and warranties made by Holdings in the Merger Agreement and
the schedules attached thereto, but only to the extent that such
representations and warranties were incorrect as of the Closing and the
alleged inaccuracies or omissions relate to periods preceding the Closing;
provided, that the release of the Company's indemnification obligations
pursuant to clause (ii) will be limited (x) to the extent that the Company
becomes aware that a representation or warranty made by Holdings in the
Merger Agreement and the schedules thereto is incorrect or incomplete
before the effectiveness of the Registration Statement, the Prospectus or
preliminary Prospectus, or any amendment or supplement to any of the
foregoing, containing such untrue statement or omission or (y) to the
extent that the Company became aware of such incorrectness or
incompleteness after the effectiveness of such document and failed to
promptly amend or supplement such document as may be necessary to satisfy
the requirements of the Securities Act. In connection with an Underwritten
Offering, the Company will indemnify the underwriters thereof, their
officers and directors and each Person who controls such underwriters
(within the meaning of the Securities Act) to the same extent as provided
above with respect to the indemnification of the Holders of Registrable
Securities. Notwithstanding the foregoing provisions of this Section 9(a),
in the case of an offering that is not an Underwritten Offering, the
Company will not be liable to any Holder of Registrable Securities under
the indemnity agreement in this Section 9(a) for any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense
that arises out of such Holder's failure to send or give a copy of the
final Prospectus to the Person asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of the Registrable Securities to such Person if
such statement or omission was corrected in such final Prospectus and the
Company has previously furnished copies thereof in accordance with this
Agreement. Notwithstanding the foregoing, nothing in this Section 9(a)
shall be construed in any manner which would increase the indemnification
liabilities of Apollo and/or AEW to the Company contained in Article VIII
of the Merger Agreement.
(b) Indemnification by Holders of Registrable Securities. In
connection with a Registration Statement, each Holder will furnish to the
Company in writing such information, including with respect to the name,
address and the amount of Registrable Securities held by such Holder, as
the Company reasonably requests for use in such Registration Statement or
the related Prospectus and agrees to indemnify and hold harmless (in the
same manner and to the same extent as set forth in Section 9(a)) the
Company, all other prospective Holders, with respect to a Holder, or any
underwriter, as the case may be, and any of their respective affiliates,
directors, officers and controlling Persons, (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities and
expenses resulting from any untrue or alleged untrue statement of a
material fact or any omission or alleged omission of a material fact
required to be stated in such Registration Statement or Prospectus or any
amendment or supplement to either of them or necessary to make the
statements therein (in the case of a Prospectus, in the light of the
circumstances then existing) not misleading, but only to the extent that
any such untrue statement or omission is made in reliance on and in
conformity with information with respect to such Holder furnished in
writing to the Company by such Holder or its counsel specifically for
inclusion therein.
(c) Conduct of Indemnification Proceedings. Any Person entitled
to indemnification hereunder agrees to give prompt written notice to the
indemnifying party after the receipt by such indemnified party of any
written notice of the commencement of any action, suit, proceeding or
investigation or threat thereof made in writing for which such indemnified
party may claim indemnification or contribution pursuant to this Agreement
(provided that failure to give such notification shall not affect the
obligations of the indemnifying person pursuant to this Section 9 except to
the extent the indemnifying party shall have been actually prejudiced as a
result of such failure). In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under these
indemnification provisions for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs
of investigation, unless in the reasonable judgment of any indemnified
party a conflict of interest is likely to exist between such indemnified
party and any other of such indemnified parties with respect to such claim,
in which event the indemnifying party shall be obligated to pay the
reasonable fees and expenses of such additional counsel or counsels. The
indemnifying party will not be subject to any liability for any settlement
made without its consent (which consent will not be unreasonably withheld).
(d) Contribution. If the indemnification from the indemnifying
party provided for in this Section 9 is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims,
damages, liabilities and expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and indemnified party
in connection with the actions which resulted in such losses, claims,
damages, liabilities and expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of
the losses, claims, damages, liabilities and expenses referred to above
shall be deemed to include, subject to the limitations set forth in Section
9(c), any legal and other fees and expenses reasonably incurred by such
indemnified party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 9(d) were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 9(d), no
underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission, and no Holder of Registrable Securities shall
be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities of such Holder were offered
to the public (net of all underwriting discounts and commissions) exceeds
the amount of any damages which such Holder has otherwise been required to
pay by reason of such untrue statement or omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
If indemnification is available under this Section 9, the
indemnifying parties shall indemnify each indemnified party to the full
extent provided in Section 9(a) or (b), as the case may be, without regard
to the relative fault of said indemnifying parties or indemnified party or
any other equitable consideration provided for in this Section 9(d).
(e) The provisions of this Section 9 shall be applicable in
respect of each registration pursuant to this Agreement, shall be in
addition to any liability which any party may have to any other party and
shall survive any termination of this Agreement.
10. Rule 144. For a period of two years following the Closing Date
or, if at the end of such two year period, a Holder is an affiliate of the
Company, until such time as no Holder is an affiliate of the Company, the
Company covenants that it will use reasonable best efforts to file the
reports required to be filed by it under the Securities Act and the
Exchange Act (or, if the Company is not required to file such reports, it
will, upon the request of any Holder of Registrable Securities, use its
reasonable best efforts to make publicly available other information so
long as necessary to permit sales under Rule 144 under the Securities Act),
and it will take such further action as any Holder of Registrable
Securities may reasonably request, all to the extent required from time to
time to enable such Holder to sell shares of Common Stock without
registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
11. Miscellaneous.
(a) Remedies. Each Holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement.
(b) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Company has obtained the written
consent of the Carell Holders and Allright Holders owning 70% of the
Registrable Securities then held by all of the Allright Holders.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally or sent by telex or telecopier,
registered or certified mail (return receipt requested), postage prepaid,
or courier guaranteeing next day delivery to the parties at the following
addresses (or at such other address for any party an shall be specified by
like notice, provided that notices of a change of address shall be
effective only upon receipt thereof). Notices delivered personally shall
be effective upon receipt, notices sent by mail shall be effective three
days after mailing, notices sent by telex shall be effective when answered
back, notices sent by telecopier shall be effective when receipt is
acknowledged, and notices sent by courier guaranteeing next day delivery
shall be effective on the next business day after timely delivery to the
courier:
(i) if to the Holders at:
Apollo Real Estate Investment Fund II, L.P.
1301 Avenue of the Americas
New York, NY 10019
Attention: William S. Benjamin
Facsimile: (212) 261-4060
and
AEW Partners, L.P.
225 Franklin Street
Boston, MA 02110-2803
Attention: Marc Davidson
Facsimile: (617) 261-9555
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, NY 10022
Attention: Randall H. Doud
Facsimile: (212) 735-2000
and
Goodwin, Procter & Hoar
Exchange Place
Boston, MA 02109
Attention: Laura Hodges Taylor
Facsimile: (617) 570-8150
(ii) if to the Company at:
Central Parking Corporation
2401 21st Avenue South, Suite 200
Nashville, TN 37212
Attention: Monroe J. Carell, Jr.
Facsimile: (615)297-6240
with copies to:
Harwell Howard Hyne Gabbert & Manner, P.C.
1800 First American Center
315 Deaderick Street
Nashville, TN 37238
Attention: Mark Manner
Facsimile: (615) 251-1059
(iii) if to the Carell Holders at:
Central Parking Corporation
2401 21st Avenue South, Suite 200
Nashville, TN 37212
Attention: Monroe J. Carell, Jr.
Facsimile: (615) 297-6240
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors of each of the parties and
transferees of Registrable Securities. No provision of this Agreement
shall be construed in any manner as to restrict the ability of any Holder
to pledge all or any portion of the Registrable Securities owned by such
Holder, including the registration rights related to such Registrable
Securities granted hereunder, to any lender; provided, that, in the event
that one or more pledgees succeed to all or a portion of the shares of
Common Stock, and the registration rights related to such shares, formerly
owned by a Holder, such registration rights may only be exercised if the
then holders of a majority of such shares agree to exercise such right.
Accordingly, with respect to the exercise of any of the registration rights
granted hereunder, the original Holder of Registrable Securities, and all
pledgees of such Holder's Registrable Securities, shall be deemed to be,
collectively, one Holder. No holder of any such shares of Common Stock,
however, whether a Holder or a pledgee, shall be under any obligation to
sell, transfer or register any of the shares of Common Stock it then owns
in the event that a majority of such holders elects to exercise any
registration right granted hereunder.
(e) Kinney Shareholders Agreement. The Company hereby agrees
that it will use its reasonable best efforts to comply with all provisions
of the shareholders agreement and agreement not to compete, dated as of
February 12, 1998, by and among the Company, Monroe J. Carell, Jr. and the
Kinney Holders, which are related, in any manner, to the timing of the
activation of the Kinney Registration Rights, or in any manner amend or
modify such shareholders agreement in a manner adverse to the Holders with
respect to the registration rights granted hereunder.
(f) Construction. References herein to a specified number of
Registrable Securities are subject to equitable adjustment for shares of
Common Stock issued as a dividend or distribution on account of Registrable
Securities and for any combination or subdivision of outstanding
Registrable Securities into a less or greater number of securities (by
reclassification, stock split or otherwise). In the event shares of Common
Stock included in the Registrable Securities are exchanged for any other
securities issued by the Company, such other securities shall constitute
Registrable Securities in accordance with clause (b) of the definition of
"Registrable Securities" in Section 1 and the provisions of this Agreement
shall be interpreted and construed in order to provide registration rights
with respect to such other securities constituting Registrable Securities
that are substantially identical to the registration rights granted hereunder
with respect to the exchanged shares of Common Stock.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware applicable
to contracts made and to be performed wholly within that State.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein
shall not be in any way impaired thereby, it being intended that all
remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the
Holders shall be enforceable to the fullest extent permitted by law.
(k) Entire Agreement. This Agreement is intended by the parties
as a final expression and a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter hereof. There are no restrictions, promises, warranties or
undertakings with respect to the subject matter hereof, other than those
set forth or referred to herein and therein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to
such subject matter.
(l) Termination. This Agreement, with respect to the Allright
Holders, shall terminate, and be of no further force and effect, in the
event that the Merger is not consummated for any reason.
(m) Pooling. Central, the Carell Holders, AEW and Apollo shall
use reasonable best efforts, with respect to the transactions contemplated
by this Agreement, to cause the Merger to be accounted for as a pooling of
interests under Opinion 16 of the Accounting Principles Board and
applicable SEC rules and regulations, and each party agrees that it shall
take no action that would cause such accounting not to be obtained.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
CENTRAL PARKING CORPORATION
By: /s/ Monroe J. Carell, Jr.
---------------------------------------------
Name: Monroe J. Carell, Jr.
Title: Chief Executive Officer and
Chairman of the Board
MONROE J. CARELL, JR.
/s/ Monroe J. Carell, Jr.
------------------------------------------------
THE CARELL CHILDREN'S TRUST
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 10/30/87
By: /s/ M. Kirk Scobey, Jr.
---------------------------------------------
Name: M. Kirk Scobey, Jr.
Title: Executive Vice President
MONROE CARELL, JR. 1994 GRANTOR
RETAINED ANNUITY TRUST
By: /s/ Monroe Carell, Jr.
---------------------------------------------
Name: Monroe Carell, Jr.
Title: Trustee U/A Monroe Carell, Jr.
dated 9/22/94
MONROE CARELL, JR. 1995 GRANTOR
RETAINED ANNUITY TRUST
By: /s/ Monroe Carell, Jr.
--------------------------------------------
Name: Monroe Carell, Jr.
Title: Trustee U/A Monroe Carell,
Jr. dated 2/7/95
THE 1996 CARELL GRANDCHILDREN'S TRUST
F/B/O JULIA CLAIRE STADLER
By: /s/ L. Glenn Worley
---------------------------------------------
Name: L. Glenn Worley
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Kathryn Carell Brown
---------------------------------------------
Name: Kathryn Carell Brown
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Julia Carell Stadler
---------------------------------------------
Name: Julia Carell Stadler
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Edith Carell Johnson
---------------------------------------------
Name: Edith Carell Johnson
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
THE 1996 CARELL GRANDCHILDREN'S TRUST
F/B/O CARELL ELIZABETH BROWN
By: /s/ L. Glenn Worley
---------------------------------------------
Name: L. Glenn Worley
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Kathryn Carell Brown
---------------------------------------------
Name: Kathryn Carell Brown
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Julia Carell Stadler
---------------------------------------------
Name: Julia Carell Stadler
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Edith Carell Johnson
---------------------------------------------
Name: Edith Carell Johnson
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
THE 1996 CARELL GRANDCHILDREN'S TRUST
F/B/O DAVID NICHOLAS BROWN
By: /s/ L. Glenn Worley
---------------------------------------------
Name: L. Glenn Worley
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Kathryn Carell Brown
---------------------------------------------
Name: Kathryn Carell Brown
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Julia Carell Stadler
---------------------------------------------
Name: Julia Carell Stadler
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Edith Carell Johnson
---------------------------------------------
Name: Edith Carell Johnson
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
THE 1996 CARELL GRANDCHILDREN'S TRUST F/B/O
WILLIAM CARELL JOHNSON
By: /s/ L. Glenn Worley
---------------------------------------------
Name: L. Glenn Worley
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Kathryn Carell Brown
---------------------------------------------
Name: Kathryn Carell Brown
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Julia Carell Stadler
---------------------------------------------
Name: Julia Carell Stadler
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Edith Carell Johnson
---------------------------------------------
Name: Edith Carell Johnson
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
THE 1996 CARELL GRANDCHILDREN'S TRUST F/B/O
GEORGE MONROE STADLER
By: /s/ L. Glenn Worley
---------------------------------------------
Name: L. Glenn Worley
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Kathryn Carell Brown
---------------------------------------------
Name: Kathryn Carell Brown
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Julia Carell Stadler
---------------------------------------------
Name: Julia Carell Stadler
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Edith Carell Johnson
---------------------------------------------
Name: Edith Carell Johnson
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O JULIA CLAIRE STADLER
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 12/26/90
By: /s/ M. Kirk Scobey, Jr.
---------------------------------------------
Name: M. Kirk Scobey, Jr.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O GEORGE MONROE STADLER
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 12/26/90
By: /s/ M. Kirk Scobey, Jr.
---------------------------------------------
Name: M. Kirk Scobey, Jr.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O CARELL ELIZABETH BROWN
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 12/26/90
By: /s/ M. Kirk Scobey, Jr.
---------------------------------------------
Name: M. Kirk Scobey, Jr.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O DAVID NICHOLAS BROWN
By: Equitable Trust Company, Successor
Trustee U/A Monroe Carell, Jr.
dated 12/26/90
By: /s/ M. Kirk Scobey, Jr.
---------------------------------------------
Name: M. Kirk Scobey, Jr.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O WILLIAM CARELL JOHNSON
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 12/26/90
By: /s/ M. Kirk Scobey, Jr.
---------------------------------------------
Name: M. Kirk Scobey, Jr.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O ANN SCOTT JOHNSON
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr.
dated 12/26/90
By: /s/ M. Kirk Scobey, Jr.
---------------------------------------------
Name: M. Kirk Scobey, Jr.
Title: Executive Vice President
THE MONROE CARELL, JR. FOUNDATION
By: /s/ Monroe J. Carell, Jr.
---------------------------------------------
Name: Monroe J. Carell, Jr.
Title: President
THE KATHRYN CARELL BROWN FOUNDATION
By: /s/ Kathryn Carell Brown
---------------------------------------------
Name: Kathryn Carell Brown
Title: Chairman, Board of Trustees
THE EDITH CARELL JOHNSON FOUNDATION
By: /s/ Edith Carell Johnson
---------------------------------------------
Name: Edith Carell Johnson
Title: Chairman, Board of Trustees
THE JULIA CARELL STADLER FOUNDATION
By: /s/ Julia Carell Stadler
---------------------------------------------
Name: Julia Carell Stadler
Title: Chairman, Board of Trustees
1997 CARELL ELIZABETH BROWN TRUST
By: /s/ L. Glenn Worley
---------------------------------------------
Name: L. Glenn Worley
Title: Trustee U/A Kathryn Carell Brown and
David H. Brown dated 12/23/97
1997 DAVID NICHOLAS BROWN TRUST
By: /s/ L. Glenn Worley
---------------------------------------------
Name: L. Glenn Worley
Title: Trustee U/A Kathryn Carell Brown and
David H. Brown dated 12/23/97
1997 WILLIAM CARELL JOHNSON TRUST
By: /s/ L. Glenn Worley
---------------------------------------------
Name: L. Glenn Worley
Title: Trustee U/A Edith Carell Johnson and
David B. Johnson dated 12/23/97
1997 ANN SCOTT JOHNSON TRUST
By: /s/ L. Glenn Worley
---------------------------------------------
Name: L. Glenn Worley
Title: Trustee U/A Edith Carell Johnson and
David B. Johnson dated 12/23/97
1997 GEORGE MONROE STADLER TRUST
By: /s/ L. Glenn Worley
---------------------------------------------
Name: L. Glenn Worley
Title: Trustee U/A Julia Carell Stadler and
George B. Stadler dated 12/23/97
1997 JULIA CLAIRE STADLER TRUST
By: /s/ L. Glenn Worley
---------------------------------------------
Name: L. Glenn Worley
Title: Trustee U/A Julia Carell Stadler and
George B. Stadler dated 12/23/97
APOLLO REAL ESTATE INVESTMENT FUND II, L.P.
By: Apollo Real Estate Advisors II, L.P.,
its general partner
By: Apollo Real Estate Capital Advisors II,
Inc., its general partner
By: /s/ William S. Benjamin
---------------------------------------------
Name: William S. Benjamin
Title: Vice President
AEW PARTNERS, L.P.
By: AEW/L.P., its general partner
By: AEW, Inc., its general partner
By: /s/ Marc Davidson
---------------------------------------------
Name: Marc Davidson
Title: Vice President
AMENDMENT
AMENDMENT, dated as of January 5, 1999 (this "Amendment"), to
REGISTRATION RIGHTS AGREEMENT, dated as of September 21, 1998 (the
"Registration Rights Agreement"), among (i) Central Parking Corporation, a
Tennessee corporation (the "Company"), (ii) Apollo Real Estate Investment
Fund II, L.P., a Delaware limited partnership (together with its
Affiliates, "Apollo"), (iii) AEW Partners, L.P., a Delaware limited
partnership (together with its Affiliates, "AEW"), and (iv) Monroe J.
Carell, Jr., The Monroe Carell, Jr. Foundation, Monroe Carell, Jr. 1995
Grantor Retained Annuity Trust, Monroe Carell, Jr. 1994 Grantor Retained
Annuity Trust, The Carell Children's Trust, The 1996 Carell Grandchildren's
Trust, The Carell Family Grandchildren 1990 Trust, The Kathryn Carell Brown
Foundation, The Edith Carell Johnson Foundation, The Julia Carell Stadler
Foundation, 1997 Carell Elizabeth Brown Trust, 1997 Ann Scott Johnson
Trust, 1997 Julia Claire Stadler Trust, 1997 William Carell Johnson Trust,
1997 David Nicholas Brown Trust and 1997 George Monroe Stadler Trust
(together with their respective Affiliates other than the Company, the
"Carell Holders"). Capitalized terms used herein without definition have
the terms ascribed to them in the Registration Rights Agreement.
W I T N E S S E T H
WHEREAS, the parties to the Merger Agreement have determined to
amend it in certain respects and the parties to the Registration Rights
Agreement have determined to amend it in certain respects, all such parties
representing that they have obtained all necessary approvals to do so;
NOW, THEREFORE, in consideration of the covenants and agreements
of the Company, Central Sub and Holdings contained in the Merger Agreement
and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. The Registration Rights Agreement is amended in the following
respects:
(a) The definition of "Shelf Registration Date" is modified by
changing the word "nine" in clause (ii) thereof to "fifteen".
(b) Section 3(a)(i) is modified by restating the first sentence
thereof as follows: "At any time after the Publication Date and before the
date fifteen months following the Publication Date (the "Initial
Underwriting Notice Period"), the Carell Holders, or Allright Holders
owning at least 80% of the Registrable Securities then owned by all the
Allright Holders, shall have the right to demand, by written notice (the
"Initial Underwriting Notice"), the Company to use its reasonable best
efforts to register under the Securities Act up to the Initial Underwriting
Amount for such Holder or Holders of Registrable Securities for resale by
such Holder or Holders in an Underwritten Offering (the "Initial
Underwriting"); provided, that the Initial Underwriting Notice may only be
given during the first nine months following the Publication Date if either
(x) it is joined in by Allright Holders owning at least 80% of the
Registrable Securities then owned by all the Allright Holders or (y) the
average sale price of the Common Stock for all trades on the New York Stock
Exchange during the thirty trading day period ending on the trading day
prior to the giving of the Initial Underwriting Notice shall be not less
than $35.00 (as equitably adjusted for any stock splits, stock dividends,
stock combinations or similar transactions)."
(c) Section 3(c)(i) is modified by restating the final sentence
thereof as follows: "All Demand Rights under this Section 3(c)(i) shall
expire immediately after an Extra Underwriting Notice is properly delivered
to the Company, but shall be subject to the reinstatement provisions
contained in Section 3(g).
(d) Section 3(c) is modified by adding the following clause
(ii), by renumbering the existing clause (ii) as clause (iii) and by making
conforming changes to existing references to clause (ii):
"(ii) In the event that, as of the date of the giving of the
Second Extra Underwriting Notice referred to below, either Apollo or AEW
shall have failed to receive gross proceeds of at least its Initial
Underwriting Amount from selling Registrable Securities or the Carell
Holders shall have failed to receive gross proceeds of at least $100
million from selling Registrable Securities, each of (A) AEW and/or Apollo,
if AEW and/or Apollo shall have failed to receive such gross proceeds,
together with all other Allright Holders who have failed to sell that
amount of Registrable Securities equal to at least their respective Initial
Underwriting Amounts, by agreement of Allright Holders owning at least 60%
of the Registrable Securities then owned by all the Allright Holders, and
(B) the Carell Holders, if they have failed to receive gross proceeds of at
least their Initial Underwriting Amount, shall have a Demand Right, at any
time commencing on the Extra Underwriting End Date, by written notice (a
"Second Extra Underwriting Notice"), the Company to use its reasonable best
efforts to register under the Securities Act up to the Initial Underwriting
Amount of such Holder or Holders, less the amount of gross proceeds
received by, or the amount of Registrable Securities sold by, such Holder
in the Initial Underwriting and the Extra Underwriting, if any, and in any
other sales of Registrable Securities after the Shelf Registration Date,
for resale by such Holder or Holders in an Underwritten Offering (the
"Second Extra Underwriting"). In the event that one or more of such
Holders deliver the Second Extra Underwriting Notice, the Company shall
then promptly mail a Company Notice to all other Holders who shall have
failed to receive gross proceeds of at least their respective Initial
Underwriting Amounts, or to sell that amount of Registrable Securities
equal to at least their respective Initial Underwriting Amounts, and then
each such other Holder may then elect to participate in the Second Extra
Underwriting by delivering to the Company, within fifteen days after such
Company Notice is given, a written notice specifying the number of
Registrable Securities such Holders wish to have registered for resale in
the Second Extra Underwriting up to but not exceeding such Holder's Initial
Underwriting Amount, less the amount of gross proceeds received by such
Holder, or that amount of Registrable Securities sold by such Holder, in
the Initial Underwriting and the Extra Underwriting, if any, and in any
other sales of Registrable Securities after the date hereof. The Company
shall use its reasonable best efforts to promptly (but in no event later
than fifteen Business Days after receipt of the Second Extra Underwriting
Notice) supplement or amend the Shelf, including the Method of Distribution
or similar section therein, or, in the event that the Shelf shall not have
been filed, to promptly process, file and cause to become effective a
Registration Statement on Form S-3, in order to cover registration of the
resale of all of the Registrable Securities properly requested to be
registered pursuant to this Section 3(c)(ii) by the Holders. All Demand
Rights under this Section 3(c)(ii) shall expire immediately after an Second
Extra Underwriting Notice is properly delivered to the Company, but shall
be subject to the reinstatement provisions contained in Section 3(g);
provided, however, that (x) if Carell Holders give the Second Extra
Underwriting Notice and none of the Allright Holders elect to participate
in the Second Extra Underwriting, the Allright Holders shall retain their
Demand Right under this Section 3(c)(ii) and (y) if Allright Holders give
the Second Extra Underwriting Notice and none of the Carell Holders elect
to participate in the Second Extra Underwriting, the Carell Holders shall
retain their Demand Right under this Section 3(c)(ii) ."
(e) Section 3(e)(ii) is modified by the addition of the
following sentence at the end thereof: "The foregoing provisions of this
Section 3(e)(ii) shall also apply for the benefit of the Holders to the
Second Extra Underwriting."
(f) Section 4 is modified by changing the reference to "180" in
the proviso thereof to "90".
(g) Section 6(a) is modified by changing the reference to "180"
in the proviso thereof to "90".
(h) Section 7 is modified by changing the reference to "180" in
the last sentence of the last paragraph thereof to "90".
(i) Section 8 is modified by deleting the word "and" and
substituting "," in the first sentence thereof and by adding the phrase
"and the Second Extra Underwriting" after the phrase "Extra Underwriting"
in the first sentence thereof.
2. This Amendment may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
3. This Amendment shall be governed by and construed in accordance
with the laws of the State of Delaware applicable to contracts made and to
be performed wholly within that State.
4. Except to the extent specifically modified in this Amendment, all
of the terms and provisions of the Registration Rights Agreement, and the
parties' respective rights thereunder, shall remain in full force and
effect and shall be deemed to apply to this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as
of the date first written above.
CENTRAL PARKING CORPORATION
By: /s/ Monroe J. Carell, Jr.
----------------------------------------------
Name: Monroe J. Carell, Jr.
Title: Chief Executive Officer
MONROE J. CARELL, JR.
/s/ Monroe J. Carell, Jr.
-------------------------------------------------
THE CARELL CHILDREN'S TRUST
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 10/30/87
By: /s/ M. Kirk Scobey, Jr.
----------------------------------------------
Name: M. Kirk Scobey, Jr.
Title: Executive Vice President
MONROE CARELL, JR. 1994 GRANTOR
RETAINED ANNUITY TRUST
By: /s/ Monroe J. Carell, Jr.
----------------------------------------------
Name: Monroe Carell, Jr.
Title: Trustee U/A Monroe Carell, Jr.
dated 9/22/94
MONROE CARELL, JR. 1995 GRANTOR
RETAINED ANNUITY TRUST
By: /s/ Monroe J. Carell, Jr.
----------------------------------------------
Name: Monroe Carell, Jr.
Title: Trustee U/A Monroe Carell, Jr.
dated 2/7/95
THE 1996 CARELL GRANDCHILDREN'S TRUST
F/B/O JULIA CLAIRE STADLER
By: /s/ L. Glenn Worley
----------------------------------------------
Name: L. Glenn Worley
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Kathryn Carell Brown
----------------------------------------------
Name: Kathryn Carell Brown
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Julia Carell Stadler
----------------------------------------------
Name: Julia Carell Stadler
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Edith Carell Johnson
----------------------------------------------
Name: Edith Carell Johnson
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
THE 1996 CARELL GRANDCHILDREN'S TRUST
F/B/O CARELL ELIZABETH BROWN
By: /s/ L. Glenn Worley
----------------------------------------------
Name: L. Glenn Worley
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Kathryn Carell Brown
----------------------------------------------
Name: Kathryn Carell Brown
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Julia Carell Stadler
----------------------------------------------
Name: Julia Carell Stadler
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Edith Carell Johnson
----------------------------------------------
Name: Edith Carell Johnson
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
THE 1996 CARELL GRANDCHILDREN'S TRUST
F/B/O DAVID NICHOLAS BROWN
By: /s/ L. Glenn Worley
----------------------------------------------
Name: L. Glenn Worley
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Kathryn Carell Brown
----------------------------------------------
Name: Kathryn Carell Brown
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Julia Carell Stadler
----------------------------------------------
Name: Julia Carell Stadler
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Edith Carell Johnson
----------------------------------------------
Name: Edith Carell Johnson
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
THE 1996 CARELL GRANDCHILDREN'S TRUST F/B/O
WILLIAM CARELL JOHNSON
By: /s/ L. Glenn Worley
----------------------------------------------
Name: L. Glenn Worley
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Kathryn Carell Brown
----------------------------------------------
Name: Kathryn Carell Brown
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Julia Carell Stadler
----------------------------------------------
Name: Julia Carell Stadler
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Edith Carell Johnson
----------------------------------------------
Name: Edith Carell Johnson
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
THE 1996 CARELL GRANDCHILDREN'S TRUST F/B/O
GEORGE MONROE STADLER
By: /s/ L. Glenn Worley
----------------------------------------------
Name: L. Glenn Worley
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Kathryn Carell Brown
----------------------------------------------
Name: Kathryn Carell Brown
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Julia Carell Stadler
----------------------------------------------
Name: Julia Carell Stadler
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
By: /s/ Edith Carell Johnson
----------------------------------------------
Name: Edith Carell Johnson
Title: Co-Trustee U/A Monroe Carell, Jr.
dated 2/20/96
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O JULIA CLAIRE STADLER
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 12/26/90
By: /s/ M. Kirk Scobey, Jr.
----------------------------------------------
Name: M. Kirk Scobey, Jr.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O GEORGE MONROE STADLER
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 12/26/90
By: /s/ M. Kirk Scobey, Jr.
----------------------------------------------
Name: M. Kirk Scobey, Jr.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O CARELL ELIZABETH BROWN
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 12/26/90
By: /s/ M. Kirk Scobey, Jr.
----------------------------------------------
Name: M. Kirk Scobey, Jr.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O DAVID NICHOLAS BROWN
By: Equitable Trust Company, Successor
Trustee U/A Monroe Carell, Jr.
dated 12/26/90
By: /s/ M. Kirk Scobey, Jr.
----------------------------------------------
Name: M. Kirk Scobey, Jr.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O WILLIAM CARELL JOHNSON
By: Equitable Trust Company, Successor Trustee
U/A Monroe Carell, Jr. dated 12/26/90
By: /s/ M. Kirk Scobey, Jr.
----------------------------------------------
Name: M. Kirk Scobey, Jr.
Title: Executive Vice President
THE CARELL FAMILY GRANDCHILDREN 1990 TRUST
F/B/O ANN SCOTT JOHNSON
By: Equitable Trust Company, Successor
Trustee U/A Monroe Carell, Jr.
dated 12/26/90
By: /s/ M. Kirk Scobey, Jr.
----------------------------------------------
Name: M. Kirk Scobey, Jr.
Title: Executive Vice President
THE MONROE CARELL, JR. FOUNDATION
By: /s/ Monroe J. Carell, Jr.
----------------------------------------------
Name: Monroe J. Carell, Jr.
Title: President
THE KATHRYN CARELL BROWN FOUNDATION
By: /s/ Kathryn Carell Brown
----------------------------------------------
Name: Kathryn Carell Brown
Title: Chairman, Board of Trustees
THE EDITH CARELL JOHNSON FOUNDATION
By: /s/ Edith Carell Johnson
----------------------------------------------
Name: Edith Carell Johnson
Title: Chairman, Board of Trustees
THE JULIA CARELL STADLER FOUNDATION
By: /s/ Julia Carell Stadler
----------------------------------------------
Name: Julia Carell Stadler
Title: Chairman, Board of Trustees
1997 CARELL ELIZABETH BROWN TRUST
By: /s/ L. Glenn Worley
----------------------------------------------
Name: L. Glenn Worley
Title: Trustee U/A Kathryn Carell Brown and
David H. Brown dated 12/23/97
1997 DAVID NICHOLAS BROWN TRUST
By: /s/ L. Glenn Worley
----------------------------------------------
Name: L. Glenn Worley
Title: Trustee U/A Kathryn Carell Brown and
David H. Brown dated 12/23/97
1997 WILLIAM CARELL JOHNSON TRUST
By: /s/ L. Glenn Worley
----------------------------------------------
Name: L. Glenn Worley
Title: Trustee U/A Edith Carell Johnson and
David B. Johnson dated 12/23/97
1997 ANN SCOTT JOHNSON TRUST
By: /s/ L. Glenn Worley
----------------------------------------------
Name: L. Glenn Worley
Title: Trustee U/A Edith Carell Johnson and
David B. Johnson dated 12/23/97
1997 GEORGE MONROE STADLER TRUST
By: /s/ L. Glenn Worley
----------------------------------------------
Name: L. Glenn Worley
Title: Trustee U/A Julia Carell Stadler and
George B. Stadler dated 12/23/97
1997 JULIA CLAIRE STADLER TRUST
By: /s/ L. Glenn Worley
----------------------------------------------
Name: L. Glenn Worley
Title: Trustee U/A Julia Carell Stadler and
George B. Stadler dated 12/23/97
APOLLO REAL ESTATE INVESTMENT FUND II, L.P.
By: Apollo Real Estate Advisors II, L.P.,
its general partner
By: Apollo Real Estate Capital Advisors II,
Inc., its general partner
By: /s/ William S. Benjamin
----------------------------------------------
Name: William S. Benjamin
Title: Vice President
AEW PARTNERS, L.P.
By: AEW/L.P., its general partner
By: AEW, Inc., its general partner
By: /s/ Marc Davidson
----------------------------------------------
Name: Marc Davidson
Title: Vice President
AFFILIATE AGREEMENT
September 11, 1998
Central Parking Corporation
2401 21st Avenue South
Nashville, TN 37212
Ladies and Gentlemen:
An Agreement and Plan of Merger, dated as of September 21, 1998 (the
"Merger Agreement"), has been entered into by and among Central Parking
Corporation ("Central"), a Tennessee corporation, Central Merger Sub, Inc.,
a Delaware corporation and a wholly-owned subsidiary of Central ("Sub"),
Apollo Real Estate Investment Fund II, L.P., a Delaware limited
partnership, AEW Partners, L.P., a Delaware limited partnership, and
Allright Holdings, Inc. ("Holdings"), a Delaware corporation. Pursuant to
the Agreement, Sub will merge with and into Holdings, Holdings will become
a wholly-owned subsidiary of Central and the stockholders of Holdings will
become stockholders of Central (the "Merger").
In accordance with the Agreement, shares of common stock, $0.01 par
value per share, of Holdings ("Holdings Common Stock") owned by the
undersigned at the Effective Time (as defined in the Agreement) shall be
converted into shares of common stock, $0.01 par value per share, of
Central ("Central Common Stock") in the manner and in the amounts described
in the Agreement.
The undersigned has been advised that before the Effective Time the
undersigned may be deemed to be an "affiliate" of Holding, and after the
Effective Time the undersigned may be deemed to be an "affiliate" of
Central, as the term "affiliate" is used in, and for purposes of,
Accounting Series Releases Nos. 130 and 135, as amended, of the Securities
and Exchange Commission (the "SEC"), although nothing contained herein
should be construed as an admission thereof or as a waiver of the right of
the undersigned to object to any claim that the undersigned is an
"affiliate" of Holdings or, after the Effective Time, Central.
In consideration of the mutual agreements, provisions and covenants
set forth in the Merger Agreement and hereinafter in this agreement, the
undersigned represents and agrees as follows:
1. Pooling Requirements. From the date which is 30 days prior
to the Effective Time until the earlier of the Effective Time or the
termination of the Merger Agreement, except as permitted below, the
undersigned will not sell, transfer or otherwise dispose of, or reduce its
interest in or risk relating to, any shares of Central Common Stock or
Holdings Common Stock presently beneficially owned by the undersigned. In
addition, except as permitted below, the undersigned will not (except to a
revocable trust of which the undersigned or members of the undersigned's
immediate family are the beneficiary) sell, transfer or otherwise dispose
of, or reduce the undersigned's interest in or risk relating to, any
Central Common Stock issued to the undersigned in the Merger or otherwise
beneficially owned by the undersigned until after such time as Central has
published (within the meaning of Accounting Series Release No. 135, as
amended, of the SEC) in an effective registration statement, an Annual
Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on
Form 8-K filed with the SEC, or any publicly disclosed quarterly earnings
report or press release or other authorized public disclosure by Central,
financial results covering at least 30 days of combined post-Merger
operations of Central and Holdings (the "Pooling Holding Period").
Nevertheless, the undersigned understands that the undersigned will be
permitted to sell, transfer or otherwise dispose of, or reduce the
undersigned's interest in or risk relating to, beginning on the date of
this agreement and ending at the expiration of the Pooling Holding Period,
an amount of Holdings Common Stock and Central Common Stock not more than
the de minimis amount permitted by the SEC in its rules and releases
relating to pooling-of-interests accounting treatment, subject to the
advance concurrence of Central and Holdings and each of their independent
auditors.
2. Rule 145. (a) Transfer Restrictions. The undersigned will
not offer, sell, pledge, transfer or otherwise dispose of any of the shares
of Central Common Stock issued to the undersigned in the Merger unless at
such time either: (i) such transaction shall be permitted pursuant to the
provisions of Rule 145 under the Securities Act of 1933, as amended (the
"Securities Act"); (ii) the undersigned shall have furnished to Central an
opinion of counsel, reasonably satisfactory to Central, or a "no action"
letter obtained by the undersigned from the staff of the SEC, to the effect
that no registration under the Securities Act would be required in
connection with the proposed offer, sale, pledge, transfer or other
disposition; or (iii) a registration statement under the Securities Act
covering the proposed offer, sale, pledge, transfer or other disposition
shall be effective under the Securities Act.
(b) Legend.
(i) The undersigned understands that all certificates
representing Central Common Stock deliverable to the undersigned pursuant
to the Merger shall bear a legend substantially as follows:
"The shares represented by this certificate may not be
offered, sold, pledged, transferred or otherwise disposed of
except in accordance with the requirements of the Securities
Act of 1933, as amended, and the other conditions specified
in the Affiliate Agreement, dated as of September 11, 1998
by and between the holder of this certificate and Central
Parking Corporation, copies of which may be inspected by the
holder of this certificate at the offices of Central Parking
Corporation, 2401 21st Avenue South, Nashville, Tennessee
37212, or furnished by Central Parking Corporation to the
holder of this certificate upon written request and without
charge."
(ii) The undersigned also understands that unless the
transfer by the undersigned of shares of Central Common Stock has been
registered under the Securities Act or is a sale made in conformity with
the provisions of Rule 145, Central reserves the right to put the following
legend on the certificates:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
were acquired from a person who received such shares in a
transaction to which Rule 145 promulgated under the
Securities Act of 1933, as amended, applies. The shares
have been acquired by the holder not with a view to, or for
resale in connection with, any distribution thereof within
the meaning of the Securities Act of 1933, as amended, and
may not be sold, pledged or otherwise transferred except in
accordance with an exemption from the registration
requirements of the Securities Act of 1933, as amended."
It is understood and agreed that the legends set forth in paragraphs
(i) and (ii) above shall be removed by delivery of substitute certificates
without such legends if the undersigned shall have delivered to Central a
copy of a "no action" letter from the staff of the SEC, or an opinion of
counsel in form and substance reasonably satisfactory to Central, to the
effect that such legends are not required for purposes of the Securities
Act.
Central, in its discretion, may cause stop transfer orders to be
placed with its transfer agent with respect to the certificates for the
shares of Central Common Stock which are required to bear the foregoing
legends.
It is understood and agreed that such legends and the stop orders
referred to above will be removed if (i) one year shall have elapsed from
the date the undersigned acquired the Central Common Stock received in the
Merger and the provisions of Rule 145(d)(2) are then available to the
undersigned, (ii) two years shall have elapsed from the date the
undersigned acquired the Central Common Stock received in the Merger and
the provisions of Rule 145(d)(3) are then applicable to the undersigned, or
(iii) Central has received either an opinion of counsel, in form and
substance reasonably satisfactory to Central, or a "no action" letter
obtained by the undersigned from the staff of the SEC, to the effect that
the restrictions imposed by Rule 145 no longer apply to the undersigned.
3. Miscellaneous.
(a) This agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
(b) This agreement shall be binding on the undersigned's
successors and assigns, including his heirs, executors and administrators.
(c) The undersigned has carefully read this agreement and
discussed its requirements, to the extent the undersigned believed
necessary, with the undersigned's counsel or counsel for Holdings.
(d) From and after the Effective Time and for so long as is
necessary in order to permit the undersigned to sell the Central Common
Stock held by the undersigned pursuant to Rule 145 and, to the extent
applicable, Rule 144 under the Securities Act, Central will use its
reasonable best efforts to file on a timely basis all reports required to
be filed by it pursuant to the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder, as the same shall be in effect at
the time, referred to in Rule 144 under the Securities Act, in order to
permit the undersigned to sell, transfer or otherwise dispose of the
Central Common Stock held by the undersigned pursuant to the terms and
conditions of Rule 145 and the applicable provisions of Rule 144.
Very truly yours,
AEW PARTNERS, L.P.
By: AEW/L.P., its general partner
By: AEW, Inc., its general partner
By: /s/ Marc Davidson
------------------------------------------
Name: Marc Davidson
Title: Vice President
Accepted:
CENTRAL PARKING CORPORATION
By: /s/ Monroe J. Carell, Jr.
------------------------------
Name: Monroe J. Carell, Jr.
Title: Chief Executive Officer and
Chairman of the Board
EXHIBIT 6
AGREEMENT OF JOINT FILING
AEW Partners, L.P., AEW/L.P., and AEW, Inc. agree that the
Statement on Schedule 13D to which this Agreement is attached as an
exhibit, and all future amendments to this Statement, shall be filed on
behalf of each of them. This Agreement is intended to satisfy Rule 13d-
1(f) under the Securities Exchange Act of 1934, as amended. This Agreement
may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same instrument.
Dated: March 29, 1999.
AEW Partners, L.P.
By: AEW/L.P., general partner
By: AEW, Inc., general partner
By: /s/ James J. Finnegan
------------------------------
Name: James J. Finnegan
Title: Vice President
AEW/L.P.
By: AEW, Inc., general partner
By: /s/ James J. Finnegan
------------------------------
Name: James J. Finnegan
Title: Vice President
AEW, Inc.
By: /s/ James J. Finnegan
------------------------------
Name: James J. Finnegan
Title: Vice President
