Exhibit 10.42
AP Holdings, Inc.
c/o Steamboat Holdings, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Re: AP HOLDINGS, INC.'S 11 1/4% SENIOR DISCOUNT NOTES DUE 2008 (THE "NOTES")
Dear Ladies and Gentlemen,
This letter (this "AGREEMENT") evidences our agreement to the
amendments, as set forth herein (the "AMENDMENTS"), of the Indenture, dated
March 30, 1998, between AP Holdings, Inc. (the "COMPANY"), the guarantors named
therein and State Street Bank and Trust Company, as trustee (the "INDENTURE"),
and our further agreement to consent to waive certain provisions of the
Indenture as set forth herein with regards to us (the "WAIVER").
We hereby represent and warrant to the Company as of the date hereof as
follows:
1. We are duly organized and validly existing under the laws of the
jurisdiction of our incorporation or organization. We further represent
and warrant to, and covenant with, the Company that (i) we have full
right, power, authority and capacity to enter into this Agreement and
to consummate the transactions contemplated hereby, and (ii) upon the
execution and delivery of this Agreement, this Agreement shall
constitute a valid and binding obligation of ours, enforceable in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights
generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
2. We currently own $30,130,000 aggregate face amount of the Notes (the
"SUBJECT NOTES"). We beneficially own the Subject Notes. We have sole
power of disposition with respect to the Subject Notes with no
limitations, qualifications or restrictions on such rights, subject
only to applicable securities laws and the terms of this Agreement.
3. We have all necessary power and authority to dispose of the
Subject Notes and to consent to the Amendments and the Waiver pursuant
to this Agreement.
4. None of the execution and delivery of this Agreement by us, the
consummation by us of the transactions contemplated hereby or
compliance by us with any of the provisions hereof shall (A) conflict
with or result in any breach of any applicable organizational documents
applicable to us, (B) result in, or give rise to, a violation or breach
of, or constitute (with or without notice or lapse of time or both) a
default under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind
to which
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we are a party or by which we or any of the Subject Notes,
properties or assets may be bound or (C) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation
applicable to us or any of our properties or assets.
5. The Subject Notes and the certificates representing the Subject
Notes are now, and at all times during the term hereof will be, held by
us, or by a nominee or custodian for our benefit, free and clear of all
liens except for any such encumbrances or proxies arising hereunder. At
the time of the transfer by us of the Subject Notes to the Company
pursuant to this Agreement, the transfer shall pass to and
unconditionally vest in the Company good and valid title to all the
Subject Notes, free and clear of all claims, liens, restrictions,
limitations and encumbrances whatsoever, other than any such
encumbrances created by the Company.
6. This Agreement is made with us in reliance upon our representations
to the Company, which by our execution of this Agreement we hereby
confirm, that any new security to be received by us as a result of the
Amendments or the Waiver will be acquired for investment for our own
account, not as a nominee or agent, and not with a view to the resale
or distribution of any part thereof, and that we have no present
intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, we further
represent that we do not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations
to such person or to any third person, with respect to any security
resulting from the Amendments or the Waiver.
7. We understand that any new security resulting from the Amendments or
the Waiver will not be registered under the Securities Act on the
ground that the issuance of such securities is exempt from registration
under the Securities Act pursuant to Section 4(2) thereof, and that the
Company's reliance on such exemption is predicated on our
representations set forth herein. We realize that the basis for the
exemption may not be present if, notwithstanding such representations,
we have in mind merely acquiring any such new security for a fixed or
determinable period in the future, or for a market rise, or for sale if
the market does not rise. We have no such intention.
8. We represent that we are experienced in evaluating and investing in
securities and acknowledge that we are able to fend for ourselves, can
bear the economic risk of our investment, and have such knowledge and
experience in financial and business matters that we are capable of
evaluating the merits and risks of the Amendments and the Waiver.
9. We are an institutional "accredited investor" as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the U.S.
Securities Act of 1933, as amended.
10. We further represent and acknowledge that the Amendments and the
Waiver may result in the Subject Notes being considered a new security
under the
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Securities Act and that the offer and sale of such new security
has not been approved or disapproved by the U.S. Securities
and Exchange Commission ("SEC") or any other federal or state office or
agency, nor will such offer and sale be approved by any such agency.
11. We have had an opportunity to ask questions of and receive answers
from representatives of the Company concerning the terms of the Waiver,
and all such questions have been answered to our full satisfaction. We
understand that no person other than the Company has been authorized to
make any representation or warranty regarding the Waiver and, if made,
such representation may not be relied on unless it is made in writing
and signed by the Company. The Company has not rendered any investment
or tax advice to us with respect to the suitability of an investment in
any new security resulting from the Waiver or the tax consequences
thereof. The Company has urged us to consult its own tax advisor
concerning any tax matters relating to our investment.
12. We are not under common control with the Company, and do not
possess direct or indirect power to direct the management or policies
of the Company, whether through voting securities, agreements or
otherwise.
The Amendments consist of (A) the removal from, and giving no further
effect to, the following provisions of the Indenture: Section 4.3, Section 4.4,
Section 4.5, Section 4.6, Section 4.7, Section 4.8, Section 4.9, Section 4.10,
Section 4.11, Section 4.12, Section 4.13, Section 4.15, Section 4.16, Section
4.17, Section 4.18, Article V and Section 6.1(iv), Section 6.1(vi), Section
6.1(vii), Section 8.4(b), Section 8.4(c), Section 8.4(f), the removal of the
defined terms set forth in Section 1.1 and Section 1.2 relating to the
aforementioned provisions; (B) the amendment of Section 3.1, Section 3.5,
Section 3.8, Section 3.9 and Section 6.1(iii) insofar as they relate to Section
4.10; and (C) the amendment or removal of certain other provisions rendered
inoperable or obsolete as a result of the removal or amendment of the
aforementioned provisions.
Pursuant to the Waiver, we hereby waive our right to collect Interest
(as such term is defined in the Indenture) prior to March 15, 2007. Interest on
the Subject Notes shall accrue from March 15, 2003. On March 15, 2007, all
accrued Interest shall become due and payable. We acknowledge that the failure
by the Company to pay and the failure by the Trustee to remit payments of
Interest to us prior to March 15, 2007 shall not constitute a default under the
Indenture and shall not give rise to a cause of action by us against the Company
or the Trustee.
We represent that the only consideration we have received from the
Company in exchange for our agreement to the Amendments and the Waiver is the
promise by the Company to cause its subsidiary, APCOA/Standard Parking, Inc., to
engage in an exchange offer and consent solicitation as described in the press
release attached as Exhibit 99.1 to the Form 8-K filed by the Company with the
SEC on November 21, 2001 (the "PRESS RELEASE").
We agree that if at any time between the date hereof and December 23,
2001 we acquire additional notes other than the Subject Notes (the "ADDITIONAL
NOTES"), the Company can rely on all of the representations and warranties set
forth in this Agreement as true and correct with regards to such Additional
Notes, to the same extent as of the date hereof with regards to the
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Subject Notes and that you agree to the Amendment and Waiver with respect to
the Additional Notes. We agree to promptly notify the Company in writing when
we acquire Additional Notes, and we will specify the aggregate face amount of
all Subject Notes and Additional Notes we own.
The Amendments will become effective upon receipt by the Company of the
consent of holders of the Notes representing at least a majority in aggregate
principal amount of such Notes, excluding Notes owned by the Company and its
affiliates, and will become operative upon the execution of a supplemental
indenture which will be executed prior to the consummation of the transactions
relating to the exchange offer and consent solicitation by the Company's
subsidiary as described in the Press Release; PROVIDED, HOWEVER, that the
effectiveness of the Waiver shall be contingent in all respects on the prior
consummation of the transactions relating to the exchange offer and consent
solicitation by our subsidiary as described in the Press Release and the prior
effectiveness of the Amendments. We acknowledge that this letter and our
agreement to the Amendments and the Waiver are granted in order to induce the
Company to cause its subsidiary to take certain actions, and as such, this
letter and our agreement to the Amendments and the Waiver is a consent coupled
with an interest and is irrevocable for its term.
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The internal law of the State of New York shall govern and be used
to construe this Agreement.
Dated: November 20, 2001
FIDUCIA LTD.
By:
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman
