EXIHIBIT 4.2
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated to be
effective as of July 1, 2002, among Standard Parking Corporation IL ("SPC-IL"),
a Delaware corporation, Tower Parking, Inc. ("TOWER"), a Delaware corporation,
Virginia Parking Service, Inc. ("VPS"), a Delaware corporation, APCOA/Standard
Parking, Inc. (the "COMPANY") a Delaware corporation, and Wilmington Trust
Company, as trustee under the indenture referred to below (the "TRUSTEE").
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture, dated as of January 11, 2002 (the "INDENTURE"), providing for the
issuance of an aggregate principal amount of up to $100 million plus an
additional amount of PIK Notes, if any, of 14% Senior Subordinated Second Lien
Notes due 2006 (each such note a "14% NOTE" and collectively, the "14% NOTES"),
excluding PIK Notes, if any;
WHEREAS, SPC-IL, Tower and VPS (each such entity a "NEW SUBSIDIARY" and
collectively, the "NEW SUBSIDIARIES") are newly-created wholly-owned
subsidiaries of the Company;
WHEREAS, the Indenture provides that under certain circumstances the New
Subsidiaries shall execute and deliver to the Trustee a supplemental indenture
pursuant to which such subsidiaries shall unconditionally guarantee all of the
Company's Obligations under the 14% Notes and the Indenture on the terms and
conditions set for the herein (the "NOTE GUARANTEE"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiaries and the Trustee mutually covenant and agree for the equal and
ratable benefit of the holders of the 14% Notes (the "HOLDERS") as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each of the New Subsidiaries hereby agrees as
follows:
(a) Along with all Guarantors named in the Indenture, to jointly and
severally guarantee to each Holder of a 14% Note authenticated
and delivered by the Trustee and to the Trustee and its successors and
assigns, the Notes or the obligations of the Company hereunder or
thereunder, that:
(i) the principal of, and premium and Liquidated Damages, if any,
and interest on the 14% Notes will be promptly paid in full when due,
whether at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of and interest on the 14% Notes, if
any, if lawful, and all other obligations of the Company to the
Holders or the Trustee under the 14% Notes or the Indenture will be
promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of
any 14% Notes or any of such other obligations, that same will be
promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same
immediately.
(b) The obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the 14% Notes or the
Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the 14% Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any
action to enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a Guarantor.
(c) The following is hereby waived: diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against
the Company, protest, notice and all demands whatsoever.
(d) This Note Guarantee shall not be discharged except by complete
performance of the obligations contained in the 14% Notes and the
Indenture, and the New Subsidiary accepts all obligations of a Guarantor
under the Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Guarantors, or any custodian,
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trustee, liquidator or other similar official acting in relation to either
the Company or the Guarantors, any amount paid by either to the Trustee or
such Holder, this Note Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.
(f) The New Subsidiary shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed
hereby.
(g) As between the Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6 of the
Indenture for the purposes of this Note Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in Article 6 of
the Indenture, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this
Note Guarantee.
(h) The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under the Note Guarantee.
(i) Pursuant to Section 12.02 of the Indenture, after giving effect to
any maximum amount and all other contingent and fixed liabilities that are
relevant under any applicable Bankruptcy or fraudulent conveyance laws, and
after giving effect of any collections from, rights to receive contribution
from or payments made by or on behalf of any other Guarantor in respect of
the obligations of such other Guarantor under Article 12 of the Indenture,
this new Note Guarantee shall be limited to the maximum amount permissible
such that the obligations of such Guarantor under this Note Guarantee will
not constitute a fraudulent transfer or conveyance.
3. EXECUTION AND DELIVERY. Each New Subsidiary agrees that its Note
Guarantee shall remain in full force and effect notwithstanding any failure to
endorse on each 14% Note a notation of such Note Guarantee.
4. GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) Each New Subsidiary may not sell or otherwise dispose of all or
substantially all of its assets to, or consolidate with or merge with or
into
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(whether or not such Guarantor is the surviving Person) another Person,
other than the Company or another Guarantor unless:
(i) Immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(ii) Either (A) subject to Sections 12.04 and 12.05 of the
Indenture, the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any such
consolidation or merger unconditionally assumes all the obligations of
that Guarantor, pursuant to a supplemental indenture in form and
substance reasonably satisfactory to the Trustee, under the 14% Notes,
the Indenture and the Note Guarantee on the terms set forth herein or
therein; or (B) the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of the Indenture,
including without limitation, Section 4.10 thereof.
(b) In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Note Guarantee endorsed upon the 14% Notes and the due and
punctual performance of all of the covenants and conditions of the
Indenture to be performed by the Guarantor, such successor Person shall
succeed to and be substituted for the Guarantor with the same effect as if
it had been named herein as a Guarantor. Such successor Person thereupon
may cause to be signed any or all of the Note Guarantees to be endorsed
upon all of the 14% Notes issuable under the Indenture which theretofore
shall not have been signed by the Company and delivered to the Trustee. All
the Note Guarantees so issued shall in all respects have the same legal
rank and benefit under the Indenture as the Note Guarantees theretofore and
thereafter issued in accordance with the terms of the Indenture as though
all of such Note Guarantees had been issued at the date of the execution
hereof.
(c) Except as set forth in Articles 4 and 5 and Section 12.05 of
Article 12 of the Indenture, and notwithstanding clauses (a) and (b) above,
nothing contained in the Indenture or in any of the 14% Notes shall prevent
any consolidation or merger of a Guarantor with or into the Company or
another Guarantor, or shall prevent any sale or conveyance of the property
of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.
5. RELEASES.
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(a) In the event of any sale or other disposition of all or
substantially all of the assets of any Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all of the
capital stock of any Guarantor, in each case to a Person that is not
(either before or after giving effect to such transaction) a Subsidiary of
the Company, then such Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all of the
capital stock of such Guarantor) or the corporation acquiring the property
(in the event of a sale or other disposition of all or substantially all of
the assets of such Guarantor) will be released and relieved of any
obligations under its Note Guarantee; PROVIDED that the Net Proceeds of
such sale or other disposition are applied in accordance with the
applicable provisions of the Indenture, including without limitation
Section 4.10 of the Indenture. Upon delivery by the Company to the Trustee
of an Officers' Certificate and an Opinion of Counsel to the effect that
such sale or other disposition was made by the Company in accordance with
the provisions of the Indenture, including without limitation Section 4.10
of the Indenture, the Trustee shall execute any documents reasonably
requested by the Company in order to evidence the release of any Guarantor
from its obligations under its Note Guarantee.
(b) In the event that the company designates any Restricted Subsidiary
that is a Guarantor as an Unrestricted Subsidiary, then such Guarantor will
be released and relieved from any obligations under its Note Guarantee;
PROVIDED that such designation is in accordance with the applicable
provisions of this Indenture, including without limitation Section 4.07 and
Section 4.10 hereof. Upon delivery by the Company to the Trustee of an
Officers' Certificate and an Opinion of Counsel to the effect that such
designation was made by the Company in accordance with the terms of this
Indenture, including without limitation Section 4.07 and Section 4.10
hereof, the Trustee will execute any documents reasonably requested by the
Company in order to evidence the release of any Guarantor from its
obligations under its Note Guarantee.
(c) Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of and
interest on the 14% Notes and for the other obligations of any Guarantor
under the indenture as provided in Article 12 of the Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer,
employee, incorporator, shareholder or agent of any Subsidiary Guarantor, as
such, shall have any liability for any obligations of the Company or any
Subsidiary Guarantor under the 14% Notes, any Note Guarantees, the Indenture or
this Supplemental Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a 14%
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Note waives and releases all such liability. The waiver and release are part of
the consideration for issuance of the 14% Notes. Such waiver may not be
effective to waive liabilities under the federal securities laws and it is the
view of the SEC that such waiver is against public policy.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
8. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
10. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Supplemental Indenture
or for or in respect of the correctness of the recitals of fact contained
herein, all of which recitals are made solely by the New Subsidiaries and the
Company.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated as of July 1, 2002
APCOA/STANDARD PARKING, INC.
By:
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Name:
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Title:
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STANDARD PARKING CORPORATION IL
By:
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Name:
----------------------------
Title:
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TOWER PARKING, INC.
By:
-----------------------------------
Name:
----------------------------
Title:
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VIRGINIA PARKING SERVICE, INC.
By:
-----------------------------------
Name:
----------------------------
Title:
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WILMINGTON TRUST COMPANY, AS TRUSTEE
By:
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Authorized Signatory
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