Exhibit 4.12
SIXTH AMENDMENT TO
CREDIT AGREEMENT
and
CONSENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT and CONSENT (the "Amendment") is
dated as of September 30, 2001 by and among APCOA/STANDARD PARKING, INC., a
Delaware corporation (the "Company"), the financial institutions listed on the
signature pages hereof (the "Lenders"), and BANK ONE, NA (having its principal
place of business in Chicago, Illinois), in its individual capacity as a Lender
and in its capacity as contractual representative (the "Agent") under that
certain Credit Agreement among the Company, the lenders party thereto and the
Agent dated as of March 30, 1998 (as clarified by letter agreement dated March
30, 1999 and by letter agreement dated August 23, 2000, and as amended by a
First Amendment to Credit Agreement dated as of November 12, 1999, a Second
Amendment to Credit Agreement dated as of March 30, 2000, a Third Amendment to
Credit Agreement dated as of May 12, 2000, a Fourth Amendment to Credit
Agreement dated as of November 14, 2000 and a Fifth Amendment to Credit
Agreement dated as of March 30, 2001, the "Credit Agreement"). Defined terms
used herein and not otherwise defined herein shall have the meaning given to
them in the Credit Agreement.
WITNESSETH
WHEREAS, the Company, the Lenders and the Agent are parties to the Credit
Agreement;
WHEREAS, the Company has requested that the Required Lenders agree to
certain amendments to the Credit Agreement and to consent to the "Specified
Transaction" (as defined in Section 2 below);
WHEREAS, the Company, the Lenders and the Agent have agreed to enter into
this Amendment on the terms and conditions set forth herein, to amend the Credit
Agreement and to consent to the Specified Transaction in the manner hereinafter
set forth;
NOW, THEREFORE, in consideration of the premises set forth above, the terms
and conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
have agreed to the following amendment to and consent under the Credit
Agreement:
1. Amendments to the Credit Agreement. Effective as of the date hereof and
subject to the satisfaction of the conditions precedent set forth in Section 3
below, the Credit Agreement is hereby amended as follows:
(a) The Definition of "Adjusted EBITDA" in Section 1.1 of the Credit
Agreement shall be amended to renumber the existing clause (I)(xii) as clause
(I)(xiii) and to insert the following new clause (I)(xii) immediately prior
thereto:
(xii) solely with respect to the fiscal quarter ended September 30,
2001, restructuring and special charges,
(b) Section 5.2(a) of the Credit Agreement is hereby deleted in its
entirety and the following new Sections 5.2(a) is substituted therefor:
(a) Adjusted Total Debt to Adjusted EBITDA Ratio. Permit or suffer the
Adjusted Total Debt to Adjusted EBITDA Ratio to be greater than (i) 6.95 to
1.0 at any time from and including the Effective Date to and including
September 29, 1999, (ii) 6.75 to 1.0 at any time from and including
September 30, 1999 to and including ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇) 8.15 to 1.0 at
any time from and including January 1, 2000 to and including September 30,
2000, (iv) 7.99 to 1.0 at any time from and including October 1, 2000 to
and including December 31, 2000, (v) 8.23 to 1.0 at any time from and
including January 1, 2001 to and including ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇) 8.07 to 1.0
at any time from and including April 1, 2001 to and including June 30,
2001, (vii) 7.77 to 1.0 at any time from and including July 1, 2001 to and
including September 30, 2001, (viii) 6.54 to 1.0 at any time from and
including October 1, 2001 to and including December 31, 2001, (v) 6.74 to
1.0 at any time from and including January 1, 2002 to and including March
31, 2002 and (vi) 6.42 to 1.0 at any time from and including April 1, 2002
to and including June 30, 2002.
2. Consent. Notwithstanding the provisions of Section 5.2(i) of the Credit
Agreement to the contrary, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 3 below, the Agent
and the Lenders hereby agree to permit the Company to eliminate the $8,000,000
intercompany account balance presently owing by the Parent in favor of the
Company pursuant to a two-step, non-cash transaction consummated during the
fiscal quarter ending December 31, 2001 whereby (a) the Company shall pay the
Parent $8,000,000 to redeem $8,000,000 of its Preferred Stock presently owned by
the Parent and (b) the Parent shall use the proceeds of the payment received
under clause (a) to contemporaneously pay the Company $8,000,000 in full
satisfaction of the aforementioned intercompany account balance (collectively,
the "Specified Transaction"); provided, however, that both before and upon
consummation of the Specified Transaction, (i) no Default or Unmatured Default
shall have occurred or be continuing and (ii) the representations and warranties
contained the Loan Documents shall be true and correct.
3. Conditions of Effectiveness. The effectiveness of this Amendment is
subject to the condition precedent that the Agent shall have received:
(a) duly executed originals of this Amendment from each of the
Company, the Required Lenders and the Agent;
(b) duly executed originals of a Reaffirmation in the form of Exhibit
A attached hereto from the Guarantors; and
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(c) an amendment fee of $100,000, payable to the Agent for the pro
rata benefit of the Lenders based upon their respective Commitments.
4. Representations and Warranties of the Company. The Company hereby
represents and warrants as follows:
(a) The Company has the corporate power and authority to execute and
deliver this Amendment and the officers of the Company executing this
Amendment have been duly authorized to execute and deliver the same and
bind the Company with respect to the provisions hereof.
(b) This Amendment and the Credit Agreement as previously executed and
amended and as amended hereby, constitute legal, valid and binding
obligations of the Company and are enforceable against the Company in
accordance with their terms (except as enforceability may be limited by
bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally).
(c) Upon the effectiveness of this Amendment and after giving effect
hereto, (i) the Company hereby reaffirms all covenants, representations and
warranties made in the Credit Agreement as previously amended and as
amended hereby, and agrees that all such covenants, representations and
warranties (other than covenants, representations and warranties that are
expressly made as of a specific date) shall be deemed to have been remade
as of the effective date of this Amendment and (ii) no Event of Default or
Unmatured Event has occurred and is continuing.
5. Reference to and Effect on the Credit Agreement.
(a) Upon the effectiveness of Section 1 hereof, on and after the date
hereof, each reference in the Credit Agreement or in any other Loan
Document (including any reference therein to "this Credit Agreement," "this
Agreement," "hereunder," "hereof," "herein" or words of like import
referring thereto) shall mean and be a reference to the Credit Agreement as
amended hereby.
(b) Except as specifically amended or consented to above, the Credit
Agreement and all other documents, instruments and agreements executed
and/or delivered in connection therewith, shall remain in full force and
effect, and are hereby ratified and confirmed. The amendments set forth
herein shall be limited precisely as provided for herein, and shall not be
deemed to be a waiver of, amendment of, consent to or modification of any
other term, provision or Event of Default or Unmatured Event of or under
the Credit Agreement or of any term or provision of any other Credit
Document or of any transaction or further or future action on the part of
the Company which would require the consent of the Agent or any Lender
under the Credit Agreement.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Agent or the Lenders, nor constitute a waiver of any
provision of the Credit Agreement or any other documents, instruments and
agreements executed and/or delivered in connection therewith.
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6. Costs and Expenses. The Borrower agrees to pay all reasonable costs,
fees and out-of-pocket expenses (including attorneys' fees and expenses of
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, special counsel to the Agent) incurred by the Agent
in connection with the preparation, arrangement, execution and enforcement of
this Amendment.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ., BUT
OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS) OF THE STATE OF
ILLINOIS.
8. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
9. Counterparts. This Amendment may be executed by one or more of the
parties to the Amendment on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and
year first above written.
APCOA/STANDARD PARKING, INC., as the
Company
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President
Chief Financial Officer and Treasurer
BANK ONE, NA (Main Office Chicago)
(formerly known as THE FIRST NATIONAL BANK
OF CHICAGO), as Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION
(formerly known as LaSalle National Bank),
as a Lender
By: /s/ ▇▇▇▇ ▇. Silver
---------------------------------
Name: ▇▇▇▇ ▇. Silver
Title: Vice President
Signature Page to Sixth Amendment to
APCOA/STANDARD PARKING, INC.
Credit Agreement and Consent
EXHIBIT A
REAFFIRMATION
Each of the undersigned hereby acknowledges receipt of a copy of the
foregoing Sixth Amendment to Credit Agreement and Consent dated as of September
30, 2001 (the "Amendment") by and among APCOA/STANDARD PARKING, INC., a Delaware
corporation (the "Company"), the financial institutions from time to time party
thereto (the "Lenders"), and Bank One, NA, in its individual capacity as a
Lender and in its capacity as contractual representative (the "Agent"), which
Amendment further amends that certain Credit Agreement among the Company, the
lenders party thereto and the Agent dated as of March 30, 1998 (as clarified by
letter agreement dated March 30, 1999 and by letter agreement dated August 23,
2000, and as amended by a First Amendment to Credit Agreement dated as of
November 12, 1999, a Second Amendment to Credit Agreement dated as of March 30,
2000, a Third Amendment to Credit Agreement dated as of May 12, 2000, a Fourth
Amendment to Credit Agreement dated as of November 14, 2000 and a Fifth
Amendment to Credit Agreement dated as of March 30, 2001, the "Credit
Agreement"). Capitalized terms used in this Reaffirmation and not defined herein
shall have the meanings given to them in the Credit Agreement.
Without in any way establishing a course of dealing by the Agent or any
Lender, each of the undersigned reaffirms the terms and conditions of the
Guaranty and any other Loan Document executed by it and acknowledges and agrees
that such agreements and each and every such Loan Document executed by the
undersigned in connection with the Credit Agreement remains in full force and
effect and is hereby reaffirmed, ratified and confirmed. All references to the
Credit Agreement contained in the above-referenced documents shall be a
reference to the Credit Agreement as so modified by the Amendment and as the
same may from time to time hereafter be amended, modified or restated.
REMAINDER OF PAGE INTENTIONALLY BLANK
IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized
officer to execute this Reaffirmation as of the 30th day of September, 2001.
A-1 Auto Park, Inc.
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
G. ▇▇▇▇ ▇▇▇▇▇▇▇
Vice President, Treasurer
AP Holdings, Inc.
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
G. ▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
APCOA Capital Corporation
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
G. ▇▇▇▇ ▇▇▇▇▇▇▇
Vice President, Treasurer
Century Parking, Inc.
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
G. ▇▇▇▇ ▇▇▇▇▇▇▇
Vice President, Treasurer
Events Parking Co., Inc.
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
G. ▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
Hawaii Parking Maintenance, Inc.
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
G. ▇▇▇▇ ▇▇▇▇▇▇▇
Vice President, Treasurer
SIGNATURE PAGE TO REAFFIRMATION
(Sixth Amendment and Consent)
Metropolitan Parking System, Inc.
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
G. ▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
S & S Parking, Inc.
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
G. ▇▇▇▇ ▇▇▇▇▇▇▇
Vice President, Treasurer
Sentinel Parking Co. of Ohio, Inc.
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
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G. ▇▇▇▇ ▇▇▇▇▇▇▇
Vice President, Treasurer
Sentry Parking Corporation
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
G. ▇▇▇▇ ▇▇▇▇▇▇▇
Vice President, Treasurer
Standard Auto Park, Inc.
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
G. ▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
Standard Parking Corporation
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
G. ▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
SIGNATURE PAGE TO REAFFIRMATION
(Sixth Amendment and Consent)
Standard Parking Corporation IL
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
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G. ▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
Tower Parking, Inc.
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
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G. ▇▇▇▇ ▇▇▇▇▇▇▇
Vice President, Treasurer
Virginia Parking Service, Inc.
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
G. ▇▇▇▇ ▇▇▇▇▇▇▇
Vice President, Treasurer
APCOA ▇▇▇▇▇▇▇ Parking Company, LLC
By: APCOA/Standard Parking, Inc., its
Sole Member
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
G. ▇▇▇▇ ▇▇▇▇▇▇▇
Executive Vice President, Chief
Financial Officer, Treasurer
APCOA LaSalle Parking Company, L.L.C.
By: APCOA/Standard Parking, Inc., its
Manager
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
G. ▇▇▇▇ ▇▇▇▇▇▇▇
Executive Vice President, Chief
Financial Officer, Treasurer
SIGNATURE PAGE TO REAFFIRMATION
(Sixth Amendment and Consent)
Executive Parking Industries, L.L.C.
By: APCOA/Standard Parking, Inc., its
Manager
By: /s/ G. ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
G. ▇▇▇▇ ▇▇▇▇▇▇▇
Executive Vice President, Chief
Financial Officer, Treasurer
SIGNATURE PAGE TO REAFFIRMATION
(Sixth Amendment and Consent)
