EXHIBIT 10.1
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made and entered into as of the 30th day of June, 2002 by and
among APCOA/Standard Parking, Inc., a Delaware corporation (the "Company")
LaSalle Bank National Association ("LaSalle"), a national banking association,
as a "Lender" (as hereinafter defined) and as agent for the Lenders (in such
capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Agent and the Company are party to that certain Amended and
Restated Credit Agreement dated as of January 11, 2002, as amended (as such
agreement may be further amended, restated, modified or supplemented and in
effect from time to time, the "Credit Agreement"), along with the lenders party
thereto from time to time (collectively, the "Lenders" and individually, a
"Lender"); and
WHEREAS, only the Required Lenders (as defined in the Credit Agreement)
need execute and deliver this Amendment in order to make it effective, and
LaSalle currently holds 62.5% of the Commitments (as defined in the Credit
Agreement), making LaSalle the only Required Lender; and
WHEREAS, in connection with the Credit Agreement, AP Holdings, Inc., a
Delaware corporation (the "Parent"), the owner of 84% of the issued and
outstanding common stock of the Company, and certain domestic subsidiaries of
the Company (the "Guarantors") executed and delivered to Agent, for the benefit
of the Lenders, that certain Amended and Restated Guaranty dated as of January
11, 2002 (as it may be further amended, restated, modified or supplemented and
in effect from time to time, the "Guaranty"); and
WHEREAS, the Agent, the Required Lenders and the Company desire to amend
the Credit Agreement in certain respects, as hereinafter described in this
Amendment;
NOW THEREFORE, in consideration of the mutual conditions and agreements set
forth in the Credit Agreement and this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the meaning ascribed to such terms in the
Credit Agreement.
2. AMENDMENTS EFFECTIVE AS OF APRIL 1, 2002. The Loan Documents are
hereby amended, effective as of April 1, 2002, as follows:
(a) The following new definition of "Ordinary Course Capital Lease"
is hereby added to the Credit Agreement in the proper alphabetical order:
"ORDINARY COURSE CAPITAL LEASE" shall mean a Capital Lease of
equipment or motor vehicles entered into by the Company or its Subsidiaries
or Joint
Ventures in the ordinary course of business in connection with performing
its obligations under a Facility Management Agreement or a Facility Lease.
(b) The definition of "Fixed Charges" in the Credit Agreement is
hereby deleted in its entirety and replaced with the following:
"FIXED CHARGES" shall mean, for any period, the sum, without
duplication, of (a) Net Interest Expense, PLUS (b) all payments of
principal and other sums required to be paid in cash during such period by
the Company or its Subsidiaries with respect to Indebtedness (excluding
Off-Balance Sheet Liabilities and any payments of the principal amount of
the Term Loan) of the Company or its Subsidiaries, PLUS (c) Net Capital
Expenditures (minus the amount of any Ordinary Course Capital Leases used
to finance such Net Capital Expenditures) during such period by the Company
and its Subsidiaries, PLUS (d) all dividends, distributions and other
similar obligations actually paid in cash with respect to Capital Stock
(other than pursuant to Sections 5.2(l)(2), (4) and (5)), PLUS (e) all
payments which are actually paid in cash during such period by the Company
or its Subsidiaries pursuant to any Earnouts and any Adjusted Off-Balance
Sheet Liabilities, unless such amount has been previously deducted from
Adjusted EBITDA, PLUS (f) all accrued income taxes paid or payable in cash
for such period for the Company or its Subsidiaries.
(c) The definition of "Indebtedness" in the Credit Agreement is
hereby deleted in its entirety and replaced with the following:
"INDEBTEDNESS" of any Person shall mean, as of any date, without
duplication, (a) all obligations of such Person for borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or bankers'
acceptances, (b) all obligations of such Person as lessee under any Capital
Lease or any Ordinary Course Capital Lease, (c) all obligations which are
secured by any Lien existing on any asset or property of such Person
whether or not the obligation secured thereby shall have been assumed by
such Person, provided that if such Person shall not have assumed such
obligation, then the amount of such obligation determined pursuant to this
clause (c) shall not exceed the value of such encumbered asset or property,
(d) the unpaid purchase price for goods, property or services acquired by
such Person, except for trade accounts and accrued expenses payable arising
in the ordinary course of business which are not past due within customary
payment terms, (e) all obligations of such Person in respect of any Swap
(valued in an amount equal to the highest termination payment, if any that
would be payable by such Person upon termination for any reason on the date
of determination), (f) all Earnouts, (g) all Disqualified Stock, (h) all
Off-Balance Sheet Liabilities, and (i) all Contingent Liabilities of such
Person with respect to or relating to indebtedness, obligations and
liabilities of others similar in character to those described in clauses
(a) through (h) of this definition.
2
(d) The definition of "Ordinary Course Lease Termination" in the
Credit Agreement is hereby deleted in its entirety and replaced with the
following:
"ORDINARY COURSE LEASE TERMINATION" shall mean (i) the termination of
an Ordinary Course Equipment Lease or an Ordinary Course Capital Lease
pursuant to either (a) the termination of the related Facility Management
Agreement or Facility Lease, or (b) a material modification of the related
Facility Management Agreement or Facility Lease such that the items of
equipment or motor vehicles which are leased under such Ordinary Course
Equipment Lease or Ordinary Course Capital Lease are no longer needed or
useful for the purposes of performance under such Facility Management
Agreement or Facility Lease by the Company or the applicable Subsidiary,
and (ii) termination of a Facility Lease or Facility Management Agreement
that is no longer needed or useful in the business judgment of the Company.
(e) The definition of "Ordinary Course Lease Termination Payments" in
the Credit Agreement is hereby deleted in its entirety and replaced with the
following:
"ORDINARY COURSE LEASE TERMINATION PAYMENTS" shall mean payments of
liquidated damages or accelerated rentals or similar amounts which are paid
under the terms of an Ordinary Course Equipment Lease, Ordinary Course
Capital Lease, Facility Management Agreement or Facility Lease pursuant to
an Ordinary Course Lease Termination thereof at or prior to expiration of
the then-applicable respective terms thereunder.
(f) Subsection 5.2(a) of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
(a) ADJUSTED TOTAL DEBT TO ADJUSTED EBITDA RATIO. Permit or suffer
the Adjusted Total Debt to Adjusted EBITDA Ratio to be greater than the
levels set forth in the following table as of the dates shown:
Date of Measurement Required Ratio
------------------- --------------
March 31, 2002 5.89 to 1.00
June 30, 2002 6.57 to 1.00
September 30, 2002 6.60 to 1.00
December 31, 2002 6.74 to 1.00
March 31, 2003 6.17 to 1.00
June 30, 2003 6.06 to 1.00
September 30, 2003 5.74 to 1.00
December 31, 2003 5.94 to 1.00
As of December 31, 2001, the Company shall have a minimum Adjusted
EBITDA of $26,200,000.
(g) Subsection 5.2(b) of the Credit Agreement is hereby deleted in
its entirety and replaced with the following:
3
(b) INTEREST COVERAGE RATIO. Permit or suffer the Interest Coverage
Ratio to be less than the levels set forth in the following table as of the
dates shown:
Date of Measurement Required Ratio
------------------- --------------
March 31, 2002 1.52 to 1.00
June 30, 2002 1.49 to 1.00
September 30, 2002 1.46 to 1.00
December 31, 2002 1.47 to 1.00
March 31, 2003 1.56 to 1.00
June 30, 2003 1.64 to 1.00
September 30, 2003 1.70 to 1.00
December 31, 2003 1.69 to 1.00
(h) Subsection 5.2(c) of the Credit Agreement is hereby deleted in
its entirety and replaced with the following:
(c) FIXED CHARGE COVERAGE RATIO. Permit or suffer the Fixed Charge
Coverage Ratio to be less than the levels set forth in the following table
as of the dates shown:
Date of Measurement Required Ratio
------------------- --------------
March 31, 2002 1.12 to 1.00
June 30, 2002 1.04 to 1.00
September 30, 2002 0.99 to 1.00
December 31, 2002 0.98 to 1.00
March 31, 2003 1.02 to 1.00
June 30, 2003 1.06 to 1.00
September 30, 2003 1.09 to 1.00
December 31, 2003 1.08 to 1.00
(i) Subsection 5.2(d) of the Credit Agreement is hereby deleted in
its entirety and replaced with the following:
(d) SENIOR DEBT TO ADJUSTED EBITDA RATIO. Permit or suffer the Senior
Debt to Adjusted EBITDA Ratio to be greater than the levels set forth in
the following table as of the dates shown:
Date of Measurement Required Ratio
------------------- --------------
March 31, 2002 1.24 to 1.00
June 30, 2002 1.52 to 1.00
September 30, 2002 1.47 to 1.00
December 31, 2002 1.58 to 1.00
March 31, 2003 1.27 to 1.00
June 30, 2003 1.35 to 1.00
September 30, 2003 1.17 to 1.00
December 31, 2003 1.33 to 1.00
4
(j) Subsection 5.2(e) of the Credit Agreement is hereby deleted in
its entirety and replaced with the following:
(e) INDEBTEDNESS. Create, incur, assume or in any manner
become liable in respect of, or suffer to exist, or permit or
suffer any Subsidiary to create, incur, assume or in any manner
become liable in respect of, or suffer to exist, any Indebtedness
other than:
(i) The Lender Indebtedness;
(ii) The Indebtedness described in SCHEDULE 5.2(e)
hereto and renewals, extensions and refinancings thereof,
but no increase in the amount thereof (as such amount is
reduced from time to time) and no modifications of the terms
thereof which is less favorable to the Company or more
restrictive on the Company in any material manner shall be
permitted;
(iii) Indebtedness of any Guarantor owing to the
Company or to any other Guarantor (other than the Parent);
(iv) Subordinated Debt, including the related
subordinated guarantees, pursuant to the Subordinated Debt
Documents, provided that (A) immediately before and after
(on a pro forma basis acceptable to the Agent and supported
by such certificates required by the Agent) the incurrence
of any such Subordinated Debt, no Unmatured Event or Event
of Default shall exist or shall have occurred and be
continuing and the Company shall be in pro forma compliance
with all financial and other covenants contained herein as
of the date of incurrence of such Subordinated Debt and for
the following year and (B) all agreements, documents and
instruments relating to such Subordinated Debt shall have
been delivered to and approved by the Agent prior to the
incurrence of such Subordinated Debt;
(v) Trade accounts payable and accrued expenses arising
in the ordinary course which are past due in an amount which
is not material in the aggregate for the Company and its
Subsidiaries on a consolidated basis or which are being
contested in good faith by appropriate proceedings and for
which adequate reserves are maintained on the books of the
Company;
(vi) Earnouts with respect to Permitted Acquisitions
made by the Company;
(vii) Indebtedness which is nonrecourse to the Company
or its Subsidiaries, provided that the aggregate amount of
such nonrecourse Indebtedness does not exceed $10,000,000
and such nonrecourse terms and the other terms of such
financing are acceptable to the Agent;
5
(viii) Indebtedness incurred to finance insurance
premiums in the ordinary course of business consistent with
past practices of the Company;
(ix) Indebtedness of Subsidiaries and Joint Ventures
which are not Guarantors owing to the Company or a Guarantor
(other than the Parent) not exceeding an aggregate amount
equal to the book value of three percent (3%) of Total
Assets; PROVIDED, that any such Indebtedness shall reduce,
dollar for dollar, the available transactions permitted by
Section 5.2(l)(13);
(x) Indebtedness represented by the subtraction of
Adjusted Off-Balance Sheet Liabilities from Off-Balance
Sheet Liabilities;
(xi) Indebtedness (other than Indebtedness to (i)
Parent, or (ii) the Principals, the Related Parties and
their respective Affiliates) other than as described in
clauses (i) through (x) above and (xiii) below not exceeding
an aggregate amount equal to the book value of three percent
(3%) of Total Assets, provided that not more than 50% of the
Indebtedness incurred or otherwise outstanding pursuant to
this clause (xi) may be secured by Permitted Liens;
(xii) any Indebtedness which may otherwise be permitted
pursuant to Sections 5.2(l) and (s); and
(xiii) any Indebtedness arising from Ordinary Course
Capital Leases.
(k) Subsection 5.2(f) of the Credit Agreement is hereby deleted in
its entirety and replaced with the following:
(f) LIENS. Create, incur or suffer to exist any Lien on any
of the assets, rights, revenues or property, real, personal or
mixed, tangible or intangible, whether now owned or hereafter
acquired, of the Company or any of its Subsidiaries, other than:
(i) Liens in favor of the Agent for the benefit of the
Lenders and the Agent;
(ii) Liens imposed by law (other than liens imposed by
ERISA or Section 412 of the Code), carriers', warehousemen's
or mechanic's Liens, operators' or drillers' Liens and Liens
to secure claims for labor, material or supplies arising in
the ordinary course of business, but only to the extent that
payment thereof shall not at time be due or shall be
contested in good faith by appropriate proceedings
diligently conducted, with respect to which appropriate
reserves have been set aside and as to which there has been
no seizure of or foreclosure upon assets subject to such
Liens;
6
(iii) deposits or pledges to secure payment of
workmen's compensation, unemployment insurance, old age
pensions or other social security, or to secure the
performance of bids, tenders, contracts (other than those
relating to borrowed money) or leases or to secure statutory
obligations or surety or appeal bonds, or to secure
indemnity, performance or other similar bonds in the
ordinary course of business, or in connection with contests,
to the extent that payment thereof shall not at the time be
due or shall be contested in good faith by appropriate
proceedings diligently conducted and there have been set
aside on its books appropriate reserves with respect
thereto;
(iv) Liens securing taxes, assessments, levies or other
governmental charges which are not overdue or which, in an
amount not exceeding $1,000,000 in the aggregate, are being
contested in good faith by appropriate proceedings
diligently conducted, with respect to which reasonable
reserves have been set aside and as to which there has been
no seizure of or foreclosure upon assets subject to the
Liens;
(v) Liens consisting of encumbrances, easements or
reservations of, or rights of others for, rights-of-way,
sewers, electric lines, telecommunications lines and other
similar purposes, zoning restrictions, restrictions on the
use of real property and minor defects and irregularities in
the title thereto, and other similar encumbrances, none of
which in the opinion of the Agent interferes with the use of
the property subject thereto by the Company or such
Subsidiary in the ordinary conduct of its business;
(vi) Liens existing on the date hereof and listed on
SCHEDULE 5.2(f) hereto (including without limitation
subordinated Liens created pursuant to the Subordinated Debt
Documents), provided that neither the Indebtedness secured
by any such existing Liens nor the property subject thereto
shall increase;
(vii) Liens on the daily revenues in favor of Persons
other than the Company or its Affiliates who are parties to
the Facility Leases and Facility Management Agreements for
the amounts due to them pursuant thereto;
(viii) purported Liens in the ordinary course of
business on fixtures to the extent applicable law permits a
mortgagee to claim an interest therein, provided that such
purported Liens do not secure any Indebtedness of the
Company or any of its Affiliates;
(ix) any Lien created to secure payment of a portion of
the purchase price of, or existing at the time of
acquisition of, any tangible fixed asset (including Liens
granted in connection with Ordinary Course Capital Leases)
acquired by the Company or any of its Subsidiaries may
7
be created or suffer to exist upon such tangible fixed asset
if the outstanding principal amount of the Indebtedness
secured by such Lien does not exceed the purchase price paid
by the Company or such Subsidiary for such tangible fixed
asset provided that (A) such Lien does not encumber any
other asset at any time owned by the Company or such
Subsidiary, (B) not more than one such Lien shall encumber
such tangible fixed asset at any one time and (C) the
aggregate amount of Indebtedness secured by all such Liens
shall not exceed shall not exceed the amounts permitted by
Sections 5.2(e)(ii) and (xi);
(x) Liens on unearned insurance premiums to secure
Indebtedness referred to in Section 5.2(e)(viii);
(xi) Liens arising by applicable law in respect of
employees' wages, salaries or commissions not overdue; and
(xii) Liens arising out of judgments or awards not
exceeding $1,000,000 in the aggregate against the Company or
its Subsidiaries with respect to which the Company or such
Subsidiary shall be in good faith prosecuting an appeal or a
proceeding or review and the enforcement of such Lien is
stayed pending such appeal or review.
(l) Subsection 5.2(r) of the Credit Agreement is hereby deleted in
its entirety and replaced with the following:
(r) NET CAPITAL EXPENDITURES. Make, or permit any
Subsidiary to make, Net Capital Expenditures (minus the
amount of any Ordinary Course Capital Leases used to finance
such Net Capital Expenditures, such resulting amount
referred to in this subsection as "Adjusted 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, plus in each case, (i)
the amount by which the allowed Adjusted Net Capital
Expenditures for the most recently ended fiscal year
exceeded the actual Adjusted Net Capital Expenditures for
such fiscal year and (ii) an amount, not to exceed
$2,000,000, of the allowed Adjusted Net Capital Expenditures
for the following fiscal year (subject to the permitted
Adjusted Net Capital Expenditures for such following year
being reduced by the amount used and allowed under this
clause (ii)).
(m) Schedule 1.1-D to the Credit Agreement is hereby deleted in its
entirety and replaced with the attached Schedule 1.1-D.
(n) The other Loan Documents are hereby amended in accordance with
the foregoing amendments to the Credit Agreement, to the extent such amendments
are applicable to each other Loan Document.
3. REAFFIRMATION AND CONFIRMATION OF SECURITY INTEREST. The Company and
the Guarantors hereby confirm to the Agent that each have granted to the Agent,
for the benefit of
8
the Lenders, a security interest in or lien upon substantially all of their
respective property, including, without limitation, all the property described
in the Security Documents, in order to secure the obligations of the Company to
the Agent and the Lenders pursuant to the Credit Agreement. The Company and each
Guarantor hereby reaffirms its respective grant of such security interest and
lien to the Agent, for the benefit of the Lenders, for such purpose in all
respects.
4. REAFFIRMATION AND CONFIRMATION OF GUARANTIES. The Guaranty, as
amended, is hereby reaffirmed as of the date hereof in all respects by each of
the Continuing Guarantors and shall continue from and after the date hereof and
shall remain in full force and effect, as amended, from and after the date
hereof, and the obligations guaranteed under the Guaranty shall include the
Company's obligations under the Credit Agreement and the other Loan Documents,
as amended.
5. REPRESENTATION AND WARRANTIES. To induce the Agent and the Required
Lenders to enter into this Amendment, the Company and the Continuing Guarantors
hereby represent and warrant to the Agent and the Required Lenders that:
(a) Since December 31, 2001, there has been no development or event,
which has had or could reasonably be expected to have a material adverse effect
on the Company's or the Continuing Guarantors' respective businesses or
financial condition. No Event of Default or Unmatured Event has occurred or
would occur after giving effect to this Amendment.
(b) The Company and the Continuing Guarantors each have the corporate
power and authority, and the legal right, to make and deliver this Amendment and
to perform all of their respective obligations under the Loan Documents, as
amended by this Amendment, and each has taken all necessary corporate action to
authorize the execution and delivery of this Amendment.
(c) When executed and delivered, this Amendment and each Loan
Document, as amended by this Amendment, will constitute legal, valid and binding
obligations of the Company or the Continuing Guarantors, as applicable,
enforceable against each signatory thereto, in accordance with their respective
terms, except as affected by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting the enforcement of creditors'
rights generally, and general equitable principles (whether considered in a
proceeding in equity or at law).
(d) The representations and warranties made by the Company and the
Continuing Guarantors in the Loan Documents to which each is a party are true
and correct in all material respects on and as of the date hereof, before and
after giving effect to the effectiveness of this Amendment, as if made on and as
of this date, other than those that relate to an earlier or specific date.
6. MISCELLANEOUS.
(a) CAPTIONS. Section captions and headings used in this Amendment are
for convenience only and are not part of and shall not affect the construction
of this Amendment.
9
(b) GOVERNING LAW. This Amendment shall be a contract made under and
governed by the laws of the State of
Illinois, without regard to conflict of
laws principles. Whenever possible, each provision of this Amendment shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Amendment shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Amendment.
(c) SEVERABILITY. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
(d) COUNTERPARTS; FACSIMILE SIGNATURE. This Amendment may be executed
in one or more counterparts, each of which shall be deemed to be an original,
but all of which shall together constitute but one and the same document. This
Amendment may be executed by facsimile signature, and any such facsimile
signature by any party hereto shall be deemed to be an original signature and
shall be binding on such party to the same extent as if such facsimile signature
were an original signature.
(e) SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
(f) REFERENCES. From and after the date of execution of this
Amendment, any reference to any of the Loan Documents contained in any notice,
request, certificate or other instrument, document or agreement executed
concurrently with or after the execution and delivery of this Amendment shall be
deemed to include this Amendment unless the context shall otherwise require.
(g) CONTINUED EFFECTIVENESS. Notwithstanding anything contained
herein, the terms of this Amendment are not intended to and do not serve to
effect a novation as to the Credit Agreement, the Notes or any other Loan
Document. The parties hereto expressly do not intend to extinguish the Credit
Agreement or any other Loan Document. Instead, it is the express intention of
the parties hereto to reaffirm the indebtedness created under the Credit
Agreement, as evidenced by the Notes, and as secured by the collateral described
in the Security Documents. The Loan Documents, except as modified hereby, remain
in full force and effect and are hereby reaffirmed in all respects.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS.]
10
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
Amended and Restated Credit Agreement to be duly executed under seal and
delivered by their respective duly authorized officers on the date first above
written.
APCOA/STANDARD PARKING, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
LASALLE BANK NATIONAL ASSOCIATION,
as Agent and a Lender
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
[Guarantor Signature Page to Second Amendment
to Amended and Restated Credit Agreement]
ACKNOWLEDGED AND AGREED, this 30th day of June, 2002:
AP Holdings, Inc. Tower Parking, Inc.
By: By:
------------------------------- -----------------------------
Name: Name:
----------------------------- ---------------------------
Title: Title:
---------------------------- --------------------------
APCOA Xxxxxxx Parking Company, LLC Virginia Parking Service, Inc.
By: By:
------------------------------- -----------------------------
Name: Name:
----------------------------- ---------------------------
Title: Title:
----------------------------- --------------------------
APCOA LaSalle Parking Company, LLC
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Hawaii Parking Maintenance, Inc.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Standard Auto Park, Inc.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Standard Parking Corporation IL
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
SCHEDULE 1.1-D
Pro Forma Financial Statements
(See Attached)
