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EXHIBIT 4.7
Execution Copy
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of November 12, 1999
(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, formerly known as THE FIRST
NATIONAL BANK OF CHICAGO, 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, 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 inserting the table and
paragraph set forth below in place thereof:
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APPLICABLE MARGIN FOR ALL ADVANCES AND FEES
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Adjusted Total Debt to Adjusted Corporate LIBOR Loan and Letter Commitment Fees
Adjusted EBITDA Ratio Base Rate Loan of Credit Fees
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=>6.0:1.0 175 bps 300 bps 62.5 bps
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=>5.5:1.0 but <6.0:1.0 150 bps 275 bps 62.5 bps
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=>5.0:1.0 but <5.5:1.0 125 bps 250 bps 62.5 bps
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=>4.5:1.0 but <5.0:1.0 100 bps 225 bps 50 bps
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<4.5:1.0 75 bps 200 bps 50 bps
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Notwithstanding anything in this Agreement to the contrary, as of the First
Amendment Effective Date the Applicable Margin shall be based on an Adjusted
Total Debt to Adjusted EBITDA Ratio of greater than or equal to 6.0:1.0 pursuant
to the above table until adjusted for the first time after the First Amendment
Effective Date.
1.2 The definition of "Commitments" in Section 1.1 shall be
amended by adding the
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following language after the reference therein to "Assignment and Acceptance":
"or in the applicable Lender Addition and Acknowledgement Agreement".
1.3 The definition of "Fixed Charge Coverage Ratio" in Section
1.1 shall be amended by adding the following language at the end thereof:
"provided further that in the calculation of Fixed Charges, Net Capital
Expenditures of the Company solely for information technology and office build
out, if expended, shall be excluded up to $4,800,000 for fiscal year 1999 and up
to $2,000,000 for fiscal year 2000".
1.4 The following definitions are hereby added to Section 1.1 in
appropriate alphabetical order:
"Company Subsidiary" shall mean the primary operating
Subsidiary of Company identified by the Company to the Agent and the Lenders
prior to the First Amendment Effective Date.
"First Amendment" shall mean the First Amendment to this
Agreement dated as of November 12, 1999.
"First Amendment Effective Date" shall mean the date of the
First Amendment.
"Company" shall mean the company identified by the Company
to the Agent and the Lenders prior to the First Amendment Effective Date code
named Project Company.
"Company Acquisition" shall mean the acquisition by Parent
and the Company of Company pursuant to a merger of Company with a Subsidiary of
Parent (pursuant to which, among other things, Company and Company Subsidiary
will become Wholly Owned Subsidiaries of the Company), all in accordance with
the Company Acquisition Documents.
"Company Acquisition Documents" shall mean the agreement and
plan of merger by and among the Company, Parent, an acquisition subsidiary of
Parent, Company, Company Subsidiary and the other parties thereto and all
agreements, instruments and documents executed or delivered pursuant thereto,
each as approved by the Agent in accordance with Section 2.5 of the First
Amendment.
1.5 A new Section 2.11 shall be added at the end of Article II
to read as follows:
2.11 Optional Increase in Commitments.
(a) Subject to the conditions set forth below, the Company may,
upon at least thirty (30) days prior written notice to the Agent or
such shorter time as may be agreed to by the Agent, increase the
aggregate amount of the Commitments, either by designating a lender not
theretofore a Lender to become a Lender (such designation to be
effective only with the prior written consent of the Agent, which
consent shall not be unreasonably withheld) or by agreeing with an
existing Lender that such Lender's Commitment shall be increased (thus
increasing the aggregate Commitments, provided that no existing Lender
shall be obligated in any way to increase its commitment); provided
that:
(i) the Agent has consented to such increase;
(ii) no Unmatured Default or Event of Default shall have occurred
and be
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continuing hereunder as of the effective date of such increase;
(iii) the representations and warranties made by the Company and
contained in Article IV shall be true and correct in all material
respects on and as of the effective date with the same effect as if
made on and as of such date (other than those representations and
warranties that by their terms speak as of a particular date, which
representations and warranties shall be true and correct in all
material respects as of such particular date);
(iv) the amount of such increase in the aggregate Commitments
shall not cause the aggregate Commitments to exceed $65,000,000;
(v) the Company and the Lender or lender not theretofore a
Lender, shall execute and deliver to the Agent, for its acceptance and
recording in the register pursuant to Section 8.6(e), a Lender Addition
and Acknowledgement Agreement, in form and substance satisfactory to
the Agent and acknowledged by the Agent and each Guarantor and
substantially in the form of Exhibit J attached hereto;
(vi) the Company shall pay any amount required to be paid
pursuant to Section 3.9 hereof resulting from the reallocation of Loans
pursuant to the increase in the aggregate Commitments; and
(vii) the Agent may request any other documents or information in
its reasonable discretion.
(b) Upon the execution, delivery, acceptance and recording of a
Lender Addition and Acknowledgement Agreement, from and after the
effective date specified in such Lender Addition and Acknowledgement
Agreement, which effective date shall be not less than five (5) nor
more than ten (10) Business Days after the delivery thereof to the
Agent, such existing Lender shall have a Commitment as therein set
forth or such other Lender shall become a Lender with a Commitment as
therein set forth and all the rights and obligations of a Lender with
such a Commitment hereunder.
(c) Upon its receipt of a Lender Addition and Acknowledgement
Agreement together with any Note or Notes, if requested, subject to the
written consent of the Agent, the Agent shall, if such Lender Addition
and Acknowledgement Agreement has been completed and is substantially
in the form of Exhibit J:
(i) accept such Lender Addition and Acknowledgement Agreement;
(ii) record the information contained therein in the Register;
and
(iii) give prompt notice thereof to the Lenders and the Company
and deliver to the Lenders a schedule reflecting the new Commitments.
Within five (5) Business Days after receipt of notice, the Company
shall execute and deliver to the Agent, in exchange for the surrendered
Note or Notes of any existing Lender or with respect to any Lender not
theretofore a Lender, a new Note or Notes to the order of the
applicable Lenders in amounts equal to the Commitments of such Lenders
pursuant to the Lender Addition and Acknowledgement Agreement. Such new
Note or Notes shall be in an aggregate principal
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amount equal to the aggregate principal amount of such Commitments,
shall be dated the effective date of such Lender Addition and
Acknowledgement Agreement and shall otherwise be in substantially the
form of the existing Notes. Each surrendered Note and/or Notes shall be
canceled and returned to Company.
1.6 Section 4.20 is restated as follows:
4.20 Subordinated Debt Documents. (a) All representations
and warranties of the Company contained in any Subordinated Debt
Document are true and correct in all material respects. The Company
will be issuing the Subordinated Notes in the principal amount of
$140,000,000 on the Effective Date, and all Subordinated Note Documents
are described on Schedule 1.1-B hereto.
(b) All Lender Indebtedness (including without limitation the
$15,000,000 increase in the Lender Indebtedness pursuant to the First
Amendment and the potential $10,000,000 increase in the Lender
Indebtedness pursuant to Section 2.11) is "Senior Debt" and "Designated
Senior Debt" as defined in the Subordinated Debt Documents and entitled
to the benefits of all subordination provisions contained in the
Subordinated Debt Documents and, other than such Lender Indebtedness,
there is no other "Designated Senior Debt" thereunder. The $15,000,000
increase in the Lender Indebtedness pursuant to the First Amendment is,
and the potential $10,000,000 increase in the Lender Indebtedness under
Section 2.11 will be, incurred pursuant to, and in full compliance
with, clause (xv) of the items listed as "Permitted Debt" following the
first paragraph of Section 4.9 of the Subordinated Note Indenture and
classified as Indebtedness incurred under that clause for purposes of
the Subordinated Note Indenture. Neither the Company nor any of its
Subsidiaries has incurred any other Indebtedness under such clause
(xv). All Lender Indebtedness (including without limitation the
$15,000,000 increase in the Lender Indebtedness pursuant to the First
Amendment and the potential $10,000,000 increase in the Lender
Indebtedness pursuant to Section 2.11) is incurred pursuant to clauses
(i) and (xv) of the items listed as "Permitted Debt" following the
first paragraph of Section 4.9 of the Subordinated Note Indenture and
in full compliance with the terms and provisions of the Subordinated
Debt Documents, and do not need to meet the requirements of the first
paragraph of Section 4.9 of the Subordinated Note Indenture.
(c) There is no event of default or event or condition which
could become an event of default with notice or lapse of time or both,
under the Subordinated Debt Documents and each of the Subordinated Debt
Documents is in full force and effect. Other than pursuant to the
Subordinated Notes, there is no obligation pursuant to any Subordinated
Debt Document or other document or agreement evidencing or relating to
any Subordinated Debt outstanding or to be outstanding on the Effective
Date which obligates the Company to pay any principal or interest or
redeem any of its Capital Stock or incur any other monetary obligation.
1.7 Sections 5.2(a) and (b) 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
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including June 29, 2000, (iii) 6.50 to 1.0 at any time from and
including June 30, 2000 to and including Xxxxx 00, 0000, (xx) 6.35 to
1.00 at any time from and including March 31, 2001 to and including
June 29, 2001, (v) 6.20 to 1.00 at any time from and including June 30,
2001 to and including September 29, 2001, (vi) 6.00 to 1.00 at any time
from and including September 30, 2001 to and including December 30,
2001, (vii) 5.80 to 1.00 at any time from and including December 31,
2001 to and including March 30, 2002 or (viii) 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 September 30, 2000,
(ii) 1.55 to 1.0 as of the end of the fiscal quarter of the Company
ending on December 31, 2000, (iii) 1.6 to 1.0 as of the end of the
fiscal quarters of the Company ending on March 31, 2001 and June 30,
2001, (iv) 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 (v) 1.75 to 1.0 as of the end of any fiscal quarter of the
Company ending thereafter.
1.8 Article V is amended by adding the following to the end
thereof: "Section 5.4 Company Acquisition. Subject to the written approval of
the Agent of the Company Acquisition Documents in accordance with Section 2.5 of
the First Amendment and the compliance with the other requirements of Section
2.5 of the First Amendment, notwithstanding anything in this Agreement to the
contrary, the Company may complete the Company Acquisition and the other
transactions expressly contemplated by such Company Acquisition Documents, all
in accordance with such Company Acquisition Documents and the representations
and covenants contained with respect thereto in the First Amendment, and the
Company Acquisition shall be a Permitted Acquisition for all purposes of this
Agreement, provided that the Company Acquisition shall be consummated on or
before December 15, 1999."
1.9 Section 5.2(q) shall be amended and restated as follows:
(q) Net Capital Expenditures. Make, or permit any Subsidiary
to make, Net Capital Expenditures that exceed in any fiscal year in the
aggregate for the Company and its Subsidiaries 25% of the Adjusted
EBITDA for such fiscal year (provided that the Company and its
Subsidiaries in the aggregate shall be permitted to make Net Capital
Expenditures of up to $7,000,000 for the Calculation Period ending
December 31, 1998), plus in each case, (i) the amount by which the
allowed Net Capital Expenditures for the most recently ended fiscal
year (exclusive of the proviso to this paragraph) exceeded the actual
Net Capital Expenditures for such fiscal year and (ii) an amount, not
to exceed $2,000,000, of the allowed Net Capital Expenditures for the
following fiscal year (subject to the permitted Net Capital
Expenditures for such following year being reduced by the amount used
and allowed under this clause (ii)), provided, that, in addition to the
amount of Net Capital Expenditures otherwise permitted pursuant to this
Section 5.2(q), additional Net Capital Expenditures solely for
information technology and office build out shall be permitted in the
amount of up to $4,800,000 for fiscal year 1999 and up to $2,000,000
for fiscal year 2000.
1.10 Section 8.1(a) shall be amended by (i) adding the following
language at the beginning of Section 8.1(a): "Except as otherwise expressly
provided in Section 2.11," and (ii) adding the following language at the
beginning of clause (ii): "except pursuant to Section 2.11,".
1.11 The Commitment amount for each Lender under the Credit
Agreement is amended to be the amounts set forth next to the signature of each
Lender on this Amendment.
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1.12 A new Exhibit entitled "Lender Addition and Acknowledgement
Agreement" shall be added to the Credit Agreement as Exhibit J in the form of
Exhibit J attached hereto.
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,
and the New Notes when executed and delivered hereunder, 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, and the New Notes when executed and
delivered hereunder will be, 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 (a) On or before the date five Business Days prior to the
proposed consummation of the Company Acquisition, the Company will deliver to
the Agent and the Lenders complete copies of all Company Acquisition Documents.
Within five Business Days following such delivery, the Agent shall notify the
Company in writing of its approval or disapproval of such Company Acquisition
Documents. Upon such approval, the Commitment amount for each Lender shall be
increased as set forth next to the signature of such Lender on this Amendment,
provided that, notwithstanding anything herein or in any Loan Document to the
contrary, the Company shall not be permitted to obtain any Advance under such
increase until simultaneously with the consummation of the Company Acquisition
in accordance with the terms of this Amendment.
(b) The Company and Parent will not consummate the Company
Acquisition unless the Agent approves such Company Acquisition Documents and the
consummation of the Company Acquisition occurs on or before December 15, 1999
and in accordance with the terms of this First Amendment. The Company will
consummate the Company Acquisition in accordance with such Company Acquisition
Documents in all material respects and in accordance with all laws and
regulations and will acquire, free and clear of all Liens (other than Permitted
Liens), good and marketable title to all Capital Stock (including without
limitation all Capital Stock of Company and Company Subsidiary) and other assets
being acquired pursuant to the Company Acquisition. The total consideration
(including without limitation any payments in cash or cash equivalents, any
payment in Capital Stock or other consideration, any deferred payments, any
loans made to former or current shareholders, employees or directors of Company
or any of its Subsidiaries and any assumption of any debt or other obligations)
paid or payable in connection with the Company Acquisition shall not exceed an
amount acceptable to the Agent, and prior to the closing of the Company
Acquisition the Company will represent to the Lenders and the Agent the amount
of such total consideration.
(c) The Company shall deliver evidence to the Agent that the
Company is completing the Company Acquisition simultaneously with the first
Advance being made in connection with the increase in the Commitments related to
the Company Acquisition described on the signature pages
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hereto, all in accordance with this Section 2.5 (including without limitation an
opinion of counsel and a certificate of the chief financial officer of the
Company (attaching pro forma computations acceptable to the Agent to demonstrate
compliance with all financial covenants hereunder) stating that the Company
Acquisition complies with the term and provisions of this Amendment and the
Credit Agreement and all laws and regulations). Simultaneously with the first
Advance hereunder in connection with the Company Acquisition in accordance with
terms hereof, the Company shall execute and deliver to the Agent Notes in favor
of each Lender in the amount of the Lender's new Commitment amount related to
the Company Acquisition set forth on the signature pages of this Amendment (the
"New Notes"), deliver to the Agent such additional legal opinions and
resolutions as may be required by the Agent and pay all fees required to be paid
in connection therewith as agreed upon between the Company, the Agent and the
Arranger.
ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment shall
not become effective until each of the following conditions is satisfied:
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
reasonably request.
3.3 The Company shall have paid the fees required to be paid, as
agreed upon between the Company, the Agent and the Arranger.
3.4 The Company shall have delivered to the Agent such other
documents and satisfied such other conditions, if any, as reasonably 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 Events of Default (the
"Existing Defaults") caused by the breach of Section 5.2(j) due to the advances
in the aggregate amount of $2,600,000 to Xxxxxxx Industries, Inc. made prior to
September 30, 1999 when the conditions for such advances under Section 5.2(j)
were not satisfied and the breaches of Section 5.2(a), (c) and (q) 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 Defaults, and shall not
waive any other breach at any other time of Section 5.2(a), (c) or (q) or any
other term or covenant of the Credit Agreement.
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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:________________________________
Its:_______________________________
Commitment if the Agent does not BANK ONE, NA, as a Lender and as
give the approval contemplated Agent, formerly known as The First
by Section 2.5 of the First Amendment: National Bank of Chicago
$27,500,000
Commitment if the Agent does By:________________________________
give the approval contemplated
by Section 2.5 of the First Amendment: Its:_______________________________
$35,000,000
Commitment if the Agent does not LASALLE NATIONAL BANK
give the approval contemplated
by Section 2.5 of the First Amendment:
$12,500,000
Commitment if the Agent does By:________________________________
give the approval contemplated
by Section 2.5 the First Amendment: Its:_______________________________
$20,000,000
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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; and
(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.
A-1 AUTO PARK, INC.
By:___________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
AP HOLDINGS, INC.
By:___________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
APCOA CAPITAL CORPORATION
By:___________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
APCOA-HAWAII, INC.
By:___________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
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EVENTS PARKING CO., INC.
By:___________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
HAWAII PARKING MAINTENANCE, INC.
By:___________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
METROPOLITAN PARKING SYSTEM, INC.
By:___________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Treasurer
SENTINEL PARKING CO. OF OHIO, INC.
By:___________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
TOWER PARKING, INC.
By:___________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
STANDARD AUTO PARK, INC.
By:___________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
STANDARD PARKING CORPORATION
By:___________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
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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:___________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
STANDARD PARKING CORPORATION, IL
By:___________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
CENTURY PARKING, INC.
By:___________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
SENTRY PARKING CORPORATION
By:___________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
VIRGINIA PARKING SERVICES, INC.
By:___________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
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