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EXHIBIT 4.8
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of March 30, 2000
(this "Amendment"), is among APCOA/STANDARD PARKING, INC., a Delaware
corporation (the "Company"), the Lenders set forth on the signature pages hereof
(collectively, the "Lenders") and BANK ONE, NA, as agent for the Lenders (in
such capacity, the "Agent").
RECITALS
A. The Company, the Guarantors, the Agent and the Lenders are
parties to a Credit Agreement dated as of March 30, 1998 (as clarified by letter
agreement dated March 30, 1999, and amended by a First Amendment to Credit
Agreement dated as of November 12, 1999, the "Credit Agreement").
B. The Company desires to amend the Credit Agreement, and the
Agent and the Lenders are willing to do so in accordance with the terms hereof.
TERMS
In consideration of the premises and of the mutual agreements
herein contained, the parties agree as follows:
ARTICLE I. AMENDMENTS. Upon fulfillment of the conditions set
forth in Article III hereof, the Credit Agreement shall be amended as follows:
1.1 The definition of "Applicable Margin" in Section 1.1
shall be amended by deleting the table set forth therein and the paragraph
following such table and inserting the table and paragraph set forth below in
place thereof:
APPLICABLE MARGIN FOR ALL ADVANCES AND FEES
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Adjusted Total Debt to Adjusted Corporate Base LIBOR Loan and Letter of
Adjusted EBITDA Ratio Rate Loan Credit Fees Commitment Fees
---------------------- ----------------------- ------------------------ ---------------
> or = to 6.5:1.0 225 bps 350 bps 75 bps
> or = to 6.0:1.0 but < 6.50:1.0 175 bps 300 bps 62.5 bps
> or = to 5.5:1.0 but < 6.0:1.0 150 bps 275 bps 62.5 bps
> or = to 5.0:1.0 but < 5.5:1.0 125 bps 250 bps 62.5 bps
> or = to 4.5:1.0 but < 5.0:1.0 100 bps 225 bps 50 bps
< 4.5:1.0 75 bps 200 bps 50 bps
Notwithstanding anything in this Agreement to the contrary, as of the Second
Amendment Effective Date the Applicable Margin shall be based on an Adjusted
Total Debt to Adjusted EBITDA Ratio of greater than or equal to 6.5:1.0 pursuant
to the above table until adjusted for the first time after the Second Amendment
Effective Date.
1.2 The following definitions are hereby added to
Section 1.1 in appropriate alphabetical order:
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"Second Amendment" shall mean the Second Amendment
to this Agreement dated as of March 30, 2000.
"Second Amendment Effective Date" shall mean the date
of the Second Amendment.
1.3 Section 2.1(c) is amended by adding the following to
the end thereof: "and (iii) the aggregate principal amount of Revolving Credit
Loans shall not exceed $35,000,000 at any time."
1.4 Section 5.1(g) is amended by adding the following to
the end thereof: "At all times on and after the date requested by the Agent in
its discretion and to the extent practical as determined by the Agent, the
Company and the Guarantors shall direct all clients and other account debtors to
make all payments in connection with any obligations of the Company or any
Guarantor directly to a lock-box account, which account shall be a non-interest
bearing account over which the Agent shall have the power of application and
withdrawal, and all amounts received in such lock-box account shall be applied
to the Lender Indebtedness on such terms required by the Agent, and the Company
and the Guarantors shall promptly execute such lock-box agreements, dominion of
funds agreements and related agreements in connection therewith, each in form
and substance satisfactory to the Agent.
1.5 Sections 5.2(a), (b) and (c) shall be amended and
restated as follows:
(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
Xxxxxxxx 00, 0000, (xxx) 8.0 to 1.0 at any time from and including
January 1, 2000 to and including September 30, 2000, (iv) 6.50 to 1.0
at any time from and including October 1, 2000 to and including Xxxxx
00, 0000, (x) 6.35 to 1.00 at any time from and including March 31,
2001 to and including June 29, 2001, (vi) 6.20 to 1.00 at any time from
and including June 30, 2001 to and including September 29, 2001, (vii)
6.00 to 1.00 at any time from and including September 30, 2001 to and
including December 30, 2001, (viii) 5.80 to 1.00 at any time from and
including December 31, 2001 to and including March 30, 2002 or (ix)
5.50 to 1.0 at any time thereafter.
(b) Interest Coverage Ratio. Permit or suffer the
Interest Coverage Ratio to be less than (i) 1.5 to 1.0 as of the end of
any fiscal quarter of the Company ending on or before December 31,
1999, (ii) 1.30 to 1.0 as of the end of the fiscal quarter of the
Company ending Xxxxx 00, 0000, (xxx) 1.27 to 1.0 as of the end of each
of the fiscal quarters of the Company ending June 30, 2000 and
September 30, 2000, (iv) 1.45 to 1.0 as of the end of the fiscal
quarter of the Company ending December 31, 2000, (v) 1.6 to 1.0 as of
the end of each of the fiscal quarters of the Company ending March 31,
2001 and June 30, 2001, (vi) 1.65 to 1.0 as of the end of any fiscal
quarter of the Company ending on or after September 30, 2001 but on or
before March 31, 2002, or (vii) 1.75 to 1.0 as of the end of any fiscal
quarter of the Company ending thereafter.
(c) Fixed Charge Coverage Ratio. Permit or suffer the
Fixed Charge Coverage Ratio to be less than (i) 0.9 to 1.0 as of the
end of any fiscal quarter of the Company ending on or before Xxxxx 00,
0000, (xx) 1.0 to 1.0 as of the end of any fiscal quarter ending on or
after June 30, 1999 but on or before December 31, 1999, (iii) 0.92 to
1.0 as of the end of the fiscal quarter of the Company ending March 31,
2000, (iv) 0.91 to
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1.0 as of the end of each of the fiscal quarters of the Company ending
June 30, 2000 and September 30, 2000, (v) 1.05 to 1.0 as of the end of
any fiscal quarter of the Company ending on or after December 31, 2000
but on or before March 31, 2002 or (vi) 1.10 to 1.0 as of the end of
any fiscal quarter of the Company ending thereafter.
1.6 Section 5.2(d)(x) is amended by deleting reference
therein to "14%" and substituting "5%" in place thereof.
1.7 Section 5.2(f) shall be amended and restated as
follows:
(f) Merger; Acquisitions; Etc. Make any Acquisition;
nor merger or consolidate or amalgamate with any other Person or take
any other action having a similar effect; provided, however, that this
Section 5.2(f) shall not prohibit (i) any merger of any Subsidiary with
or into another Subsidiary or any merger of any Subsidiary into the
Company, provided that (A) there is no Unmatured Event or Event of
Default either before or after such merger, (B) if any such merger
involves the Company or a Guarantor, the Company shall be the surviving
corporation and (C) any such merger involves the Company or any
Guarantor, the net worth of the Company or such Guarantor involved in
such merger immediately after the merger would be equal to or greater
than its net worth immediately preceding such merger, or (ii) any
Acquisition completed prior to the Second Amendment Effective Date and
identified on Schedule 5.2(f) hereto.
1.8 Section 5.2(g)(i) is amended by deleting reference
therein to "10%" and substituting "1%" in place thereof.
1.9 Section 5.2(i) is amended by adding the following
after the phrase "covenants and conditions in this Agreement" in each place such
phrase appears: "without giving effect to any amendment or modification of
Sections 5.2(a), (b) or (c) made at any time after the Effective Date".
1.10 Sections 5.2 (j) and (k) are amended and restated as
follows:
(i) Dividends and Other Restricted Payments. Make,
pay, declare or authorize any dividend, payment or other distribution
in respect of any class of its Capital Stock or any dividend, payment
or distribution in connection with the redemption, purchase, retirement
or other acquisition, directly or indirectly, or any shares of its
Capital Stock other than such dividends, payments or other
distributions to the extent payable solely in shares of Capital Stock
(other than Disqualified Stock) of the Company. The Company will not
issue any Disqualified Stock, other than the Preferred Stock existing
as of the Effective Date.
(j) Investments, Loans and Advances. Purchase or
otherwise acquire any Capital Stock of or other ownership interest in,
or debt securities of or other evidence of Indebtedness of, any other
Person; nor make any loan or advance of any of its funds or property or
make any other extension of credit to, or make any other investment or
contribution or acquire any interest whatsoever in, any other Person;
nor incur any Contingent Liability except to the extent permitted under
Section 5.2(d); nor permit any Subsidiary to do any of the foregoing;
other than:
(i) extensions of trade credit made in the ordinary course of
business on customary
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credit terms and commission, relocation, travel and similar advances
made to officers and employees in the ordinary course of business,
provided that advances to officers and employees for purposes other
than commission, relocation and travel shall not exceed $250,000 in
aggregate amount outstanding at any time,
(ii) investments in Cash Equivalents,
(iii) investments, loans and advances in and to any existing
Guarantor,
(iv) those investments, loans, advances and other
transactions described in Schedule 5.2(j) hereto, having the same
terms as existing on the date of this Agreement, but no extension or
renewal thereof shall be permitted,
(v) investments, loans and advances in an aggregate amount
outstanding not to exceed $1,000,000 to Affiliates of the Company
(which shall not include Xxxxxxx, and such investments, loans and
advances may not be sent directly or indirectly to or for the benefit
of Xxxxxxx or any other Affiliates) described on Schedule 5.2(j)-2 or
otherwise approved by the Agent, provided that both before and after
giving effect to any such investment, loan and advance (w) no Unmatured
Event or Event of Default shall exist or shall have occurred and be
continuing, (x) the representations and warranties contained in the
Loan Documents shall be true and correct in all material respects as if
made on the date such investment, loan or advance is made, and (y) the
aggregate amount of cash and Cash Equivalents on hand of the Company
plus the amount that the Company is able to borrow in Revolving Credit
Loans after giving effect to such investment, loan or advance is and
will be at least $5,000,000 above the amount of working capital
required for the Company over such twelve month period of time, as
demonstrated to the Agent's reasonable satisfaction by such pro forma
financial statements and projections as required by the Agent, and
(vi) acquiring and owning stock, obligations or securities
received in settlement of debts owing to the Company or its
Subsidiaries or as consideration for Asset Sales otherwise permitted
under Section 5.2(g).
1.11 Section 5.2(p) is amended and restated as follows:
(p) Management Fees; Etc. Pay, or permit any
Subsidiary or, to the extent the Company is able to do so, any other
Affiliate, to pay, directly or indirectly, any management, consulting,
investment banking, advisory or other fees or payments under any
leases, any expense reimbursement or similar payments or any other
payments of any kind (including, without limitation, any amounts paid
or payable by the Company or any of its Subsidiaries to Xxxxxxx in
respect of overhead expense allocations among members of the affiliate
corporate group) to Xxxxxxx or any Affiliates thereof other than the
Company or any Guarantor.
1.12 Section 5.2(q) shall be amended by adding the
following to the end thereof: "Notwithstanding anything in this Section 5.2(q)
to the contrary, the Net Capital Expenditures (i) for the four consecutive
fiscal quarters of the Company ending March 31, 2000 shall be allowed up to, but
not in excess of, $5,638,000, (ii) for the four consecutive fiscal quarters of
the Company ending June 30, 2000 shall be allowed up to, but not in excess of,
$5,010,000, and (iii) for the four consecutive fiscal quarters of the Company
ending September 30, 2000 shall be allowed up to, but not in excess of,
$5,333,000.
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1.13 Schedule 5.2(j) attached hereto is substituted for
Schedule 5.2(j) to the Credit Agreement.
ARTICLE II. REPRESENTATIONS AND AGREEMENTS. The Company
represents and warrants to, and agrees with, the Agent and the Lenders that:
2.1 The execution, delivery and performance of this
Amendment are within its powers, have been duly authorized and are not in
contravention of any statute, law or regulation known to it or of any terms of
its Articles of Incorporation or By-laws, or of any material agreement or
undertaking to which it is a party or by which it is bound.
2.2 This Amendment is the legal, valid and binding
obligations of the Company and each Guarantor enforceable against each in
accordance with the respective terms thereof.
2.3 After giving effect to the amendments contained
herein, the representations and warranties contained in Article IV of the Credit
Agreement are true in all material respects on and as of the date hereof with
the same force and effect as if made on and as of the date hereof.
2.4 After giving effect to the amendments contained
herein, no Event of Default or Unmatured Default exists or has occurred and is
continuing on the date hereof.
2.5 The Company and Parent have not, and will not
without the prior written consent of the Lenders, consummate the Company
Acquisition.
2.6 The aggregate amount of any payment, transfer or
other consideration paid or otherwise transferred in any way to Xxxxxxx or any
of Xxxxxxx'x Affiliates (other than the Company or Guarantor), whether directly
or indirectly, and whether constituting any management, consulting, investment
banking, advisory or other fees or payments under any leases or any expense
reimbursement or similar payments or any other payments of any kind (including,
without limitation, any amounts paid or payable by the Company or any of its
Subsidiaries in respect of overhead expense allocations among the members of the
affiliate corporate group) or constituting any loans, advances, dividends,
distributions, forgiveness of debt or other transfer of any kind to Xxxxxxx or
any of Xxxxxxx'x Affiliates (other than the Company or Guarantor) since
September 30, 1999 is equal to $1,700,000.
ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment
shall become effective as of the date hereof when each of the following
conditions is satisfied or waived by the Lenders:
3.1 The Company, the Guarantors and the Lenders shall
have signed this Amendment.
3.2 The Company and the Guarantors shall have delivered
such resolutions, officer's certificates and legal opinions as the Agent may
request.
3.3 The Company shall have paid to the Agent, for the
benefit of the Lenders, an amendment fee equal to 15 basis points on the amount
of the Commitment of each Lender.
3.4 The Company and the Guarantors and Firstar Bank
shall have executed such agreements satisfactory to the Agent pursuant to which
the Agent is granted a first priority security interest in all bank accounts of
the Company and the Guarantors and such other rights with respect thereto as
required by the Agent.
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3.5 The Company shall have delivered to the Agent such
other documents and satisfied such other conditions, if any, as requested by the
Agent.
ARTICLE IV. MISCELLANEOUS.
4.1 References in the Credit Agreement or in any other
Loan Document to the Credit Agreement shall be deemed to be references to the
Credit Agreement as amended hereby and as further amended from time to time.
4.2 The Company agrees to pay and to save the Agent
harmless for the payment of all reasonable documented costs and expenses arising
in connection with this Amendment, including the reasonable documented fees of
counsel to the Agent in connection with preparing this Amendment and the related
documents.
4.3 The Company and each Guarantor acknowledge and agree
that, to the best of their knowledge, the Agent and the Lenders have fully
performed all of their obligations under all documents executed in connection
with the Credit Agreement. The Company and each Guarantor represent and warrant
that they are not aware of any claims or causes of action against the Agent or
any Lender.
4.4 The Lenders and the Agent waive the Event of Default
(the "Existing Default") caused by the breach of Section 5.2(a), (b) and (j)
which occurred prior to the date hereof to the extent described by the Company
to the Lenders prior to the date hereof, provided that it is acknowledged and
agreed that this is a one time waiver only for the Existing Default, and shall
not waive any other breach at any other time of Section 5.2(a), (b) or (j) or
any other term or covenant of the Credit Agreement.
4.5 Except as expressly amended hereby, the Company and
each Guarantor agree that the Credit Agreement, the Notes, the Security
Documents and all other documents and agreements executed by the Company in
connection with the Credit Agreement in favor of the Agent or any Lender are
ratified and confirmed, as amended hereby, and shall remain in full force and
effect in accordance with their terms and that they are not aware of any set
off, counterclaim, defense or other claim or dispute with respect to any of the
foregoing. Terms used but not defined herein shall have the respective meanings
ascribed thereto in the Credit Agreement. This Amendment may be signed upon any
number of counterparts with the same effect as if the signatures thereto and
hereto were upon the same instrument, and telecopied signatures shall be
effective as originals.
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IN WITNESS WHEREOF, the parties signing this Amendment have
caused this Amendment to be executed and delivered as of the day and year first
above written.
APCOA/STANDARD PARKING, INC.
By:
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Its:
-----------------------------
BANK ONE, NA, as a Lender and as
Agent, formerly known as The
First National Bank of Chicago
By:
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Its:
-----------------------------
LASALLE BANK NATIONAL ASSOCIATION
By:
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Its:
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CONSENT AND AGREEMENT
As of the date and year first above written, each of the
undersigned hereby:
(a) fully consents to the terms and provisions of the above
Amendment and the consummation of the transactions contemplated hereby and
agrees to all terms and provisions of the above Amendment applicable to it;
(b) agrees that each Guaranty and all other agreements executed
by any of the undersigned in connection with the Credit Agreement or otherwise
in favor of the Agent or the Lenders (collectively, the "Security Documents")
are hereby ratified and confirmed and shall remain in full force and effect, and
each of the undersigned acknowledges that it has no setoff, counterclaim or
defense with respect to any Security Document;
(c) acknowledges that its consent and agreement hereto is a
condition to the Banks' obligation under this Amendment and it is in its
interest and to its financial benefit to execute this consent and agreement; and
(d) agrees that it will not make any payment, transfer or give or
transfer any other consideration in any way to Xxxxxxx or any of Xxxxxxx'x
Affiliates (other than the Company or Guarantor), whether directly or
indirectly, and whether constituting any management, consulting, investment
banking, advisory or other fees or payments under any leases or any expense
reimbursement or similar payments or any other payments of any kind (including,
without limitation, any amounts paid or payable by the Company or any of its
Subsidiaries in respect of overhead expense allocations among the members of the
affiliate corporate group) or constituting any loans, advances, dividends,
distributions, forgiveness of debt or other transfer of any kind to Xxxxxxx or
any of Xxxxxxx'x Affiliates (other than the Company or Guarantor).
A-1 AUTO PARK, INC.
By:
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
AP HOLDINGS, INC.
By:
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
APCOA CAPITAL CORPORATION
By:
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
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APCOA-HAWAII, INC.
By:
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
EVENTS PARKING CO., INC.
By:
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
HAWAII PARKING MAINTENANCE, INC.
By:
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
METROPOLITAN PARKING SYSTEM, INC.
By:
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
SENTINEL PARKING CO. OF OHIO, INC.
By:
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
TOWER PARKING, INC.
By:
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
STANDARD AUTO PARK, INC.
By:
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
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STANDARD PARKING CORPORATION
By:
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
APCOA LASALLE PARKING, LLC
By: APCOA/Standard Parking Inc.
as Manager
By:
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
S & S PARKING, INC.
By:
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
STANDARD PARKING CORPORATION, IL
By:
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
CENTURY PARKING, INC.
By:
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
SENTRY PARKING CORPORATION
By:
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
VIRGINIA PARKING SERVICES, INC.
By:
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
