SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 2012
Commission file number: 000-50796
STANDARD PARKING CORPORATION (Exact Name of Registrant as Specified in Its Charter)
900 N. Michigan Avenue, Suite 1600
Chicago, Illinois 60611-1542 (Address of Principal Executive Offices, Including Zip Code)
(312) 274-2000
(Registrant’s Telephone Number, Including Area Code)
Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. YES NO �
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive
Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). YES NO �
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). YES � NO As of November 5, 2012, there were 21,829,462 shares of common stock of the registrant outstanding.
Delaware 16-1171179
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
Large accelerated filer � Accelerated filer
Non-accelerated filer �
Smaller reporting company � (Do not check if a smaller reporting company)
Table of Contents
STANDARD PARKING CORPORATION
FORM 10-Q INDEX
2
Part I. Financial Information
Item 1. Financial Statements:
Condensed Consolidated Balance Sheets as of September 30, 2012 (Unaudited) and December 31, 2011 3 Condensed Consolidated Statements of Income (Unaudited) for the three months ended September 30, 2012 and 2011 and the nine
months ended September 30, 2012 and 2011 4 Condensed Consolidated Statements of Comprehensive Income (Unaudited) for the three months ended September 30, 2012 and 2011
and the nine months ended September 30, 2012 and 2011 5 Condensed Consolidated Statements of Cash Flows (Unaudited) for the nine months ended September 30, 2012 and 2011 6 Notes to Condensed Consolidated Interim Financial Statements 7
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations 20 Item 3. Quantitative and Qualitative Disclosures about Market Risk 36 Item 4. Controls and Procedures 37 Part II. Other Information
Item 1. Legal Proceedings 37 Item 1A. Risk Factors 38 Item 2. Unregistered Sales of Equity Securities and Use of Proceeds 46 Item 6. Exhibits 47 Signatures 48
Table of Contents
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
STANDARD PARKING CORPORATION CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands, except for share and per share data)
Note: The balance sheet at December 31, 2011 has been derived from the audited financial statements at that date but does not include all of the information and footnotes required by accounting principles generally accepted in the United States for complete financial statements.
See Notes to Condensed Consolidated Interim Financial Statements.
3
September 30, 2012 December 31, 2011
(Unaudited)
(see Note)
ASSETS
Current assets:
Cash and cash equivalents $ 10,386
$ 13,220
Notes and accounts receivable, net 61,175
46,396
Prepaid expenses and supplies 2,604
2,419
Deferred taxes 2,745
2,745
Total current assets 76,910
64,780
Leasehold improvements, equipment and construction in progress, net 16,646
16,732
Advances and deposits 4,131
5,261
Long-term receivables, net 15,398
14,177
Intangible and other assets, net 10,387
9,420
Cost of contracts, net 13,030
14,286
Goodwill 132,694
132,417
Total assets $ 269,196
$ 257,073
LIABILITIES AND STOCKHOLDERS ’ EQUITY
Current liabilities:
Accounts payable $ 51,501
$ 44,747
Accrued and other current liabilities 37,565
41,304
Current portion of long-term borrowings 633
754
Total current liabilities 89,699
86,805
Deferred taxes 16,488
12,981
Long-term borrowings, excluding current portion 72,658
81,259
Other long-term liabilities 30,332
26,386
Standard Parking Corporation’s stockholders’ equity:
Preferred stock, par value $.01 per share; 5,000,000 shares authorized and no shares issued —
—
Common stock, par value $.001 per share; 50,000,000 shares authorized; 15,668,128 and 15,464,864 shares issued and outstanding as of September 30, 2012 and December 31, 2011, respectively
15 15
Additional paid-in capital
94,071 92,662
Accumulated other comprehensive loss
(110 ) (318 ) Accumulated deficit
(33,902 ) (42,632 ) Total Standard Parking Corporation stockholders’ equity
60,074 49,727
Noncontrolling interest
(55 ) (85 ) Total equity
60,019 49,642
Total liabilities and stockholders’ equity
$ 269,196 $ 257,073
Table of Contents
STANDARD PARKING CORPORATION CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(in thousands, except for share and per share data, unaudited)
(1) Non-cash stock based compensation expense of $251 and $1,114 for the three and nine months ended September 30, 2012, respectively, and $411 and $1,724 for the three and nine months ended September 30, 2011, respectively, is included in general and administrative expenses.
See Notes to Condensed Consolidated Interim Financial Statements.
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Three Months Ended Nine Months Ended
September 30, 2012
September 30, 2011 September 30, 2012
September 30, 2011
Parking services revenue:
Lease contracts $ 42,969
$ 37,501 $ 122,927
$ 109,899
Management contracts 49,226
43,259 141,562
131,556
92,195 80,760
264,489 241,455
Reimbursed management contract revenue
100,958 106,365
309,055 307,615
Total revenue
193,153 187,125
573,544 549,070
Cost of parking services:
Lease contracts
40,108 34,049
113,495 101,834
Management contracts
30,409 22,489
82,919 73,196
70,517
56,538 196,414
175,030
Reimbursed management contract expense 100,958
106,365 309,055
307,615
Total cost of parking services 171,475
162,903 505,469
482,645
Gross profit:
Lease contracts 2,861
3,452 9,432
8,065
Management contracts 18,817
20,770 58,643
58,360
Total gross profit 21,678
24,222 68,075
66,425
General and administrative expenses (1) 13,846
11,814 43,759
34,593
Depreciation and amortization 1,723
1,683 5,258
4,893
Operating income 6,109
10,725 19,058
26,939
Other expenses (income):
Interest expense 1,093
1,197 3,355
3,546
Interest income (61 ) (297 ) (266 ) (470 )
1,032 900
3,089 3,076
Income before income taxes
5,077 9,825
15,969 23,863
Income tax expense
2,623 3,760
7,007 9,305
Net income
2,454 6,065
8,962 14,558
Less: Net income attributable to noncontrolling interest
75 89
232 260
Net income attributable to Standard Parking
Corporation $ 2,379
$ 5,976 $ 8,730
$ 14,298
Common stock data:
Net income per share:
Basic $ 0.15
$ 0.38 $ 0.56
$ 0.91
Diluted $ 0.15
$ 0.37 $ 0.55
$ 0.89
Weighted average shares outstanding:
Basic 15,668,129
15,704,837 15,632,817
15,776,883
Diluted 15,928,685
16,034,330 15,883,535
16,116,136
Table of Contents
STANDARD PARKING CORPORATION CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(in thousands, unaudited)
See Notes to Condensed Consolidated Interim Financial Statements.
5
Three Months Ended Nine Months Ended
September 30, 2012
September 30, 2011 September 30, 2012
September 30, 2011
Net income $ 2,454
$ 6,065 $ 8,962
$ 14,558
Other comprehensive (expense) income 202
(443 ) 208 (465 )
Comprehensive income 2,656
5,622 9,170
14,093
Less: comprehensive income attributable to noncontrolling interest
75 89
232 260
Comprehensive income attributable to Standard Parking
Corporation $ 2,581
$ 5,533 $ 8,938
$ 13,833
Table of Contents
STANDARD PARKING CORPORATION CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands, except for share and per share data, unaudited)
See Notes to Condensed Consolidated Interim Financial Statements.
6
Nine Months Ended
Septmeber 30, 2012 September 30, 2011
Operating activities:
Net income
$ 8,962 $ 14,558
Adjustments to reconcile net income to net cash provided by operations:
Depreciation and amortization
5,215 4,935
Loss (gain) on sale and abandonment of assets
56 (49 )
Amortization of debt issuance costs 446
478
Non-cash stock-based compensation 1,114
1,724
Excess tax benefit related to stock option exercises (221 ) (148 )
Provisions for losses on accounts receivable 229
33
Deferred income taxes 3,507
2,857
Change in operating assets and liabilities (8,317 ) (11,339 )
Net cash provided by operating activities 10,991
13,049
Investing activities:
Purchase of leasehold improvements and equipment (3,114 ) (2,907 )
Cost of contracts purchased (572 ) (395 )
Proceeds from sale of assets 15
82
Capitalized interest (12 ) (40 )
Contingent purchase payments (93 ) (293 )
Net cash used in investing activities (3,776 ) (3,553 )
Financing activities:
Proceeds from exercise of stock options 154
143
Repurchase of common stock —
(5,031 ) Earn-out payments made
(1,525 ) —
Tax benefit related to stock option exercises 221
148
Payments on senior credit facility (8,200 ) (3,250 )
Distribution to noncontrolling interest (202 ) (255 )
Payments on long-term borrowings (108 ) (102 )
Payments for debt issuance costs (30 ) (30 )
Payments on capital leases (414 ) (399 )
Net cash used in financing activities (10,104 ) (8,776 )
Effect of exchange rate changes on cash and cash equivalents 55
(406 ) Increase (decrease) in cash and cash equivalents
(2,834 ) 314
Cash and cash equivalents at beginning of period 13,220
7,305
Cash and cash equivalents at end of period $ 10,386
$ 7,619
Supplemental disclosures:
Cash paid during the period for:
Interest $ 2,415
$ 3,151
Income taxes 3,179
4,975
Table of Contents
STANDARD PARKING CORPORATION NOTES TO CONDENSED CONSOLIDATED INTERIM FINANCIAL S TATEMENTS
(In thousands except for share and per share data, unaudited)
1. Basis of Presentation
The accompanying unaudited condensed consolidated financial statements of Standard Parking Corporation have been prepared in accordance with accounting principles generally accepted in the United States for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and notes required by accounting principles generally accepted in the United States for complete financial statements.
In the opinion of management, all adjustments (consisting only of adjustments of a normal and recurring nature) considered necessary for a
fair presentation of the financial position and results of operations have been included. Operating results for the three and nine month periods ended September 30, 2012 are not necessarily indicative of the results that might be expected for any other interim period or the fiscal year ended December 31, 2012. The financial statements presented in this report should be read in conjunction with the consolidated financial statements and footnotes thereto included in our 2011 Annual Report on Form 10-K filed on March 15, 2012.
On October 2, 2012, Standard Parking completed its acquisition of KCPC Holdings, Inc., holding company for Central Parking Corporation
(“Central”). For further information regarding the acquisition of Central, see Note 16 Agreement and Plan of Merger with Central Parking and Note 17 Subsequent Events .
Principles of Consolidation
The consolidated financial statements include the accounts of the Company, its wholly owned subsidiaries, and variable interest entities in which the Company is the primary beneficiary. Noncontrolling interest recorded in the consolidated statement of income is the interest in consolidated variable interest entities which are not controlled by the Company. We have interests in nine joint ventures which are determined to be variable interest entities and each operate between one and thirty-five parking facilities. Of the nine variable interest entities, five are consolidated into our financial statements, and four are single purpose entities where the Company is not the primary beneficiary and therefore the Company does not control these entities as power is shared. Investments in variable interest entities where the Company is not the primary beneficiary are accounted for under the equity method and are not material to the Company’s consolidated financial statements. All significant intercompany profits, transactions and balances have been eliminated in consolidation.
Financial Instruments
The carrying values of cash and cash equivalents, notes and accounts receivable and accounts payable are reasonable estimates of their fair value due to the short-term nature of these financial instruments. Long-term debt, including capital lease obligations, has a carrying value that approximates fair value because these instruments bear interest at market rates.
Interest Rate Caps
We do not enter into derivative instruments for any purpose other than cash flow hedging purposes. On February 22, 2010, we entered into interest rate cap agreements with Wells Fargo Bank N.A. (“Wells Fargo”) and Fifth Third Bank
(“Fifth Third”), allowing us to limit our exposure to increases in variable interest rates on a portion of our borrowings under our senior credit facility (“Rate Cap Transactions”). Pursuant to two separate letter agreements between the Company and Wells Fargo and Fifth Third, respectively, we will receive payments from Wells Fargo and Fifth Third each quarterly period to the extent that the prevailing three month LIBOR during that period exceeds our cap rate of 3.25%. The Rate Cap Transactions became effective March 31, 2010, and settle each quarter on a date that is intended to coincide with our quarterly interest payment dates under our senior credit facility. The Rate Cap Transactions cap our LIBOR interest rate on a notional amount of $50,000 at 3.25% for a total of 39 months. These Rate Cap Transactions are classified as a cash flow hedge, and we calculate the effectiveness of the hedge on a quarterly basis. The ineffective portion of the cash flow hedge is recognized in current period earnings as an increase of interest expense and is not material for the three and nine month periods ended September 30, 2012 and 2011. The fair value of the interest rate cap at September 30, 2012 and December 31, 2011 is $0 and $8, respectively, and is included in prepaid expenses and supplies.
2. Stock-Based Compensation
We measure share-based compensation expense at the grant date, based on the fair value of the award, and the expense is recognized over the requisite employee service period (the vesting period) for awards expected to vest (considering estimated forfeitures).
The Company has an amended and restated Long-Term Incentive Plan that was adopted in conjunction with our initial public offering. On
April 22, 2008, our shareholders approved an amendment to our Long-Term Incentive Plan that increased the maximum 7
Table of Contents number of shares of common stock available for awards under the Long-Term Incentive Plan from 2,000,000 to 2,175,000 and extended the Plan’s termination date. The Plan now terminates twenty years from the date of such approval, or April 22, 2028. Forfeited and expired options under the Plan become generally available for reissuance. At September 30, 2012, 108,498 shares remained available for award under the Plan. Stock Options and Grants
We use the Black-Scholes option pricing model to estimate the fair value of each option grant as of the date of grant. The volatilities are based on the 90-day historical volatility of our common stock as of the grant date. The risk free interest rate is based on zero-coupon U.S. government issues with a remaining term equal to the expected life of the option.
There were no options granted during the nine months ended September 30, 2012 and 2011. The Company recognized no stock-based
compensation expense related to stock options for the nine months ended September 30, 2012 and 2011, as all options previously granted were fully vested. As of September 30, 2012, there were no unrecognized compensation costs related to unvested options.
On April 25, 2012, the Company authorized vested stock grants to certain directors totaling 12,995 shares. The total value of the grant, based
on the fair value of the stock on the grant date, was $245 and is included in general and administrative expenses.
Restricted Stock Units
In March 2008, the Company’s Compensation Committee and the Board of Directors authorized a one-time grant of 750,000 restricted stock units that subsequently were awarded to members of our senior management team on July 1, 2008. In November 2008, an additional 5,000 restricted stock units were awarded. The restricted stock units vest primarily in one-third installments on each of the tenth, eleventh and twelfth year anniversaries of the grant date. The restricted stock unit agreements provide for accelerated vesting upon the recipient reaching their retirement age.
The fair value of restricted stock units is determined using the fair value of our common stock on the date of the grant, and compensation
expense is recognized over the vesting period. In accordance with the guidance related to share-based payments, we estimated forfeitures at the time of the grant and revise those estimates in subsequent periods if actual forfeitures differ from those estimates. We use historical data to estimate pre-vesting forfeitures and record stock-based compensation expense only for those awards that are expected to vest.
During the nine months of 2012, 146,000 restricted stock units vested and no restricted stock units were forfeited. The Company recognized $251 and $869 of stock-based compensation expense related to the restricted stock units for the three and nine
months ended September 30, 2012, respectively, which is included in general and administrative expenses. The Company recognized $411 and $1,479 of stock-based compensation expense related to the restricted stock units for the three and nine months ended September 30, 2011, respectively, which is included in general and administrative expenses. As of September 30, 2012, there was $5,214 of unrecognized stock-based compensation costs, net of estimated forfeitures, related to the restricted stock units that are expected to be recognized over a weighted average remaining period of approximately 6.2 years.
3. Net Income Per Common Share
Companies are required to present basic and diluted earnings per share. Basic net income per share is computed by dividing net income by the weighted daily average number of shares of common stock outstanding during the period. Diluted net income per share is based upon the weighted daily average number of shares of common stock outstanding for the period plus dilutive potential common shares, including stock options and restricted stock units using the treasury-stock method.
8
Table of Contents A reconciliation of the weighted average basic common shares outstanding to the weighted average diluted common shares outstanding is as
follows (unaudited):
There were 9,534 anti-dilutive options excluded in the computation of diluted earnings per share for the three and nine months ended
September 30, 2011 because the options’ exercise prices were greater than the average market price of the common stock. There were no anti-dilutive options or other potential common shares for the three and nine months ended September 30, 2012.
4. Recently Issued Accounting Pronouncements
In September 2011, the FASB issued updated accounting guidance related to testing goodwill for impairment. The amendments provide entities with the option of performing a qualitative assessment before performing the first step of the two-step impairment test. If entities determine, on the basis of qualitative factors, it is not more likely than not that the fair value of the reporting unit is less than or greater than the carrying amount, then performing the two-step impairment test would be unnecessary. However, if an entity concludes otherwise, then it is required to perform the first step of the two-step impairment test by calculating the fair value of the reporting unit and comparing the fair value with the carrying amount of the reporting unit. If the carrying amount of a reporting unit exceeds its fair value, then the entity is required to perform the second step of the goodwill impairment test to measure the amount of the impairment loss, if any. The amendment also provides entities with the option to bypass the qualitative assessment for any reporting unit in any period and proceed directly to the first step of the two-step impairment test. This guidance is effective for interim and annual periods beginning after December 15, 2011. We test for impairment annually during the fourth quarter of the fiscal year. Although the Company has not yet performed the annual impairment test for fiscal year 2012, we do not believe that its adoption will have a material effect on the Company’s financial position, results of operations or cash flows.
On January 1, 2012, we adopted the updated accounting guidance related to the presentation of comprehensive income. This accounting
update eliminates the option to present the components of other comprehensive income as part of the statement of shareholders’ equity. Instead, comprehensive income must be reported in either a single continuous statement of comprehensive income, which contains two sections, net income and other comprehensive income, or in two separate but consecutive statements. The adoption of this amendment did not have a material effect on our Consolidated Financial Statements as the amendment impacts presentation only; we have elected to present the components of total comprehensive income and components of net income in two separate consecutive statements.
On January 1, 2012, we adopted the amended provisions of fair value measurement and disclosure requirements. The guidance amends
certain accounting and disclosure requirements related to fair value measurements to ensure that fair value has the same meaning in U.S. GAAP and in IFRS and that their respective fair value measurement and disclosure requirements are the same. This amendment changes certain fair value measurement principles and enhances disclosure requirements, particularly for level 3 fair value measurements. See Note 14 of the Notes to Unaudited Condensed Consolidated Financial Statements for disclosures related to fair value measurements.
9
Three Months Ended
September 30
Nine Months Ended September 30
2012
2011 2012
2011
Weighted average common basic shares outstanding 15,668,129
15,704,837 15,632,817
15,776,883
Effect of dilutive stock options and restricted stock units 260,556
329,493 250,718
339,253
Weighted average common diluted shares outstanding 15,928,685
16,034,330 15,883,535
16,116,136
Net income per share:
Basic $ 0.15
$ 0.38 $ 0.56
$ 0.91
Diluted $ 0.15
$ 0.37 $ 0.55
$ 0.89
Table of Contents 5. Leasehold Improvements, Equipment and Construction in Progress, Net
A summary of leasehold improvements, equipment, and construction in progress and related accumulated depreciation and amortization is as follows:
Depreciation expense was $1,053 and $3,216 for the three and nine months ended September 30, 2012, respectively, and $1,066 and $3,013
for the three and nine months ended September 30, 2011, respectively. Depreciation includes losses on sale and abandonment of leasehold improvements and equipment of $12 and $56 for the three and nine months ended September 30, 2012, respectively, and losses on the sale and abandonment of leasehold improvements and equipment of $13 and $49 for the three and nine months ended September 30, 2011, respectively.
6. Cost of Contracts, Net
Cost of contracts represents the contractual rights associated with providing parking services at a managed or leased facility. Cost consists of either capitalized payments made to third parties or the value ascribed to contracts acquired through acquisition. Cost of contracts is amortized over the estimated life of the contracts, including anticipated renewals and terminations.
The balance of cost of contracts is comprised of the following:
Amortization expense related to cost of contracts was $609 and $1,828 for the three and nine months ended September 30, 2012,
respectively, and $555 and $1,691 for the three and nine months ended September 30, 2011 respectively. The weighted average useful life is 9.7 years for 2012 and 9.5 years for 2011.
7. Goodwill
Goodwill is assigned to reporting units based upon the specific Region where the assets are acquired and associated goodwill resided.
10
Ranges of Estimated
useful life September 30, 2012
December 31, 2011
(Unaudited)
Equipment 2-5 years
$ 12,022 $ 12,021
Software
3-10 years 13,119
12,643
Vehicles 4 years
9,361 9,405
Other
10 years 2,542
2,464
Leasehold improvements
Shorter of lease term or economic life up to 10 years
9,414 9,732
Construction in progress
3,495 2,255
49,953
48,520
Less accumulated depreciation and amortization (33,307 ) (31,788 )
Leasehold improvements, equipment and construction in progress, net
$ 16,646 $ 16,732
September 30, 2012 December 31, 2011
(Unaudited)
Cost of contracts
$ 24,768 $ 24,203
Accumulated amortization
(11,738 ) (9,917 ) Cost of contracts, net
$ 13,030 $ 14,286
Table of Contents The following table reflects the changes in the carrying amounts of goodwill by reportable segment for the nine months ended September 30,
2012 (unaudited).
8. Long-Term Receivables, Net
Agreement
We entered into a 25-year agreement with the State of Connecticut that expires on April 6, 2025, under which we operate the surface parking and 3,500 garage parking spaces at Bradley International Airport located in the Hartford, Connecticut metropolitan area. The Company manages the facility for which it is expected to receive a management fee.
The parking garage was financed on April 6, 2000 through the issuance of $53,800 of State of Connecticut special facility revenue bonds,
representing $47,700 non-taxable Series A bonds and a separate taxable issuance of $6,100 Series B bonds. The Series B bonds were retired on July 1, 2006 according to the terms of the indenture. The Bradley agreement provides that we deposit with a trustee for the bondholders all gross revenues collected from operations of the surface and garage parking, and from these gross revenues, the trustee pays debt service on the special facility revenue bonds outstanding, operating and capital maintenance expenses of the surface and garage parking facilities excluding our management fee discussed below, and specific annual guaranteed minimum payments to the State. Principal and interest on the Bradley special facility revenue bonds increase from approximately $3,600 in lease year 2002 to approximately $4,500 in lease year 2025. Annual guaranteed minimum payments to the State will increase from approximately $8,300 in lease year 2002 to approximately $13,200 in lease year 2024. The annual minimum guaranteed payment to the State by the trustee for the nine months ended September 30, 2012 and 2011 was $7,754 and $7,595, respectively.
All of the cash flow from the parking facilities is pledged to the security of the special facility revenue bonds and is collected and deposited
with the bond trustee. Each month the bond trustee makes certain required monthly distributions, which are characterized as “Guaranteed Payments.” To the extent the monthly gross receipts generated by the parking facilities are not sufficient for the trustee to make the required Guaranteed Payments, we are obligated to deliver the deficiency amount to the trustee. Additionally, the Guaranteed Payments are required to be paid before we are reimbursed for deficiency payments or management fees.
The following is the list of Guaranteed Payments: • Garage and surface operating expenses, • Principal and interest on the special facility revenue bonds, • Trustee expenses, • Major maintenance and capital improvement deposits, and • State Minimum Guarantee. However, to the extent there is a cash surplus in any month during the term of the lease, we have the right to be repaid the principal amount
of any and all deficiency payments previously made, together with actual interest expenses and a premium, not to exceed 10%
11
Region
One
Region Two
Region Three
Region Four
Total
Balance as of January 1, 2012 $ 65,965
$ 8,600 $ 35,275
$ 22,577 $ 132,417
Contingent payments related to acquisitions
46 —
47 —
93
Foreign currency translation —
184 —
— 184
Balance as of September 30, 2012
$ 66,011 $ 8,784
$ 35,322 $ 22,577
$ 132,694
Amount Outstanding
September 30, 2012 December 31, 2011
(Unaudited)
Deficiency payments:
Balance at the beginning of the year
$ 13,407 $ 12,070
Deficiency payments made
1,312 1,716
Deficiency payments received
(91 ) (379 ) Balance at the end of the period
14,628 13,407
Other Bradley related, net
3,203 3,203
Valuation allowance
(2,484 ) (2,484 ) Total Bradley receivables
$ 15,347 $ 14,126
Other long-term receivables
51 51
Total long-term receivables
$ 15,398 $ 14,177
Table of Contents of the initial deficiency payment. We calculate and record interest income and premium income in the period the associated deficiency payment is received from the trustee. Deficiency Payments
To the extent that monthly gross receipts are not sufficient for the trustee to make the required payments, we are obligated pursuant to our agreement to deliver the deficiency amount to the trustee within three business days of being notified. We are responsible for these deficiency payments regardless of the amount of utilization for the Bradley parking facilities. The deficiency payments represent contingent interest bearing advances to the trustee to cover operating cash flow requirements. To the extent sufficient funds are available in the appropriate fund, the trustee is then directed by the State to reimburse us for deficiency payments up to the amount of the calculated surplus.
In the nine months ended September 30, 2012, we made deficiency payments (net of repayments received) of $1,221. In addition, we
received $85 of interest income on deficiency repayments and we did not record or receive any premium income related to deficiency payments from the trustee. In the nine months ended September 30, 2011, we made deficiency payments (net of repayments received) of $1,053 and received $54 in premium income and $256 of interest income related to deficiency repayments from the trustee. There was no receivable from the trustee for interest and premium income related to deficiency repayments as of September 30, 2012 and 2011.
The deficiency payments, if any, are recorded as a receivable by us for which we are reimbursed from time to time as provided in the trust
agreement. As of September 30, 2012 and December 31, 2011, we have a receivable of $14,628 and $13,407, respectively, compromised of cumulative deficiency payments to the trustee, net of reimbursements. We believe these advances to be fully recoverable and therefore have not recorded a valuation allowance for them. We do not guarantee the payment of any principal or interest on any debt obligations of the State of Connecticut or the trustee.
The Construction, Financing and Operating Special Facility Lease Agreement, which governs reimbursement of Guarantor Payments, places
no time restriction or limits on our right to reimbursement.
Compensation
In addition to the recovery of certain general and administrative expenses incurred, our agreement provides for an annual management fee payment that is based on three operating profit tiers calculated for each year during the term of the agreement. The management fee is further apportioned 60% to us and 40% to an un-affiliated entity. To the extent that funds are available for the trustee to make a distribution, the annual management fee is paid when sufficient cash is available after the Guaranteed Payments (as defined in our agreement) are paid, and after the repayment of all deficiency payments, including accrued interest and premium. However, our right to the management fee accrues each year during the term of the agreement and is paid when sufficient cash is available for the trustee to make a distribution.
The annual management fee is paid after the repayment of all deficiency payments, including accrued interest and premium. Therefore, due
to the existence and length of time for repayment of the deficiency amounts to the Company, collection of annual management fees are not reasonably assured and no management fees have been recognized. Management fees will be recognized in accordance with SAB 104 when “collectability is reasonably assured.”
Cumulative management fees of $5,850 have not been recognized as of September 30, 2012, and no management fee income was recognized
during the nine months ended September 30, 2012 and 2011.
9. Borrowing Arrangements
Long-term borrowings, in order of preference, consist of:
12
Amount Outstanding
Due Date September 30, 2012
December 31, 2011
(Unaudited)
Revolving senior credit facility October 2013
$ 71,800 $ 80,000
Capital lease obligations
Various 558
972
Obligations on seller notes and other Various
933 1,041
Total
73,291 82,013
Less current portion
633 754
Long-term borrowings excluding current portion
$ 72,658 $ 81,259
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Senior Credit Facility
On July 15, 2008, we amended and restated our credit facility. As of May 31, 2012, the Company entered into an amendment to extend the termination date from June 29, 2013 to October 1, 2013.
The $210,000 revolving senior credit facility includes a letter of credit sub-facility with a sublimit of $50,000 and a swing line sub-facility
with a sublimit of $10,000. The $50,000 letter of credit sub-facility does not limit the maximum actual borrowings on the revolving senior credit facility.
This revolving senior credit facility bears interest, at our option, at either (1) LIBOR plus an applicable LIBOR margin of between 2.00% and
3.50% depending on the ratio of our total funded indebtedness to our EBITDA from time to time (“Total Debt Ratio”) or (2) the Base Rate (as defined below) plus an applicable Base Rate Margin of between 0.50% and 2.00% depending on our Total Debt Ratio. We may elect interest periods of one, two, three or six months for LIBOR based borrowings. The Base Rate is the greater of (i) the rate publicly announced from time to time by Bank of America, N.A. as its “prime rate”, or (ii) the overnight federal funds rate plus 0.50%.
Certain financial covenants limit the Company’s capacity to fully draw on its $210,000 revolving credit facility. Our senior credit facility
includes a fixed charge ratio covenant, a total debt to EBITDA ratio covenant, a limit on our ability to incur additional indebtedness, issue preferred stock or pay dividends, and certain other restrictions on our activities. We are required to repay borrowings under our senior credit facility out of the proceeds of future issuances of debt or equity securities and asset sales, subject to certain customary exceptions. Our senior credit facility is secured by substantially all of our assets and all assets acquired in the future (including a pledge of 100% of the stock of our existing and future domestic guarantor subsidiaries and 65% of the stock of our existing and future foreign subsidiaries).
We are in compliance with all of our financial covenants as of September 30, 2012. The weighted average interest rate on our senior credit facility at September 30, 2012 and December 31, 2011 was 3.2% and 3.1%,
respectively. The rate includes all outstanding LIBOR contracts, interest rate cap effect and letters of credit. The weighted average interest rate on outstanding borrowings, not including letters of credit, was 3.2% at September 30, 2012 and December 31, 2011.
At September 30, 2012, we had $17,823 of letters of credit outstanding under the senior credit facility, borrowings against the senior credit
facility aggregated $71,800, and we had $38,674 available under the senior credit facility.
10. Business Unit Segment Information
An operating segment is defined as a component of an enterprise that engages in business activities from which it may earn revenue and incur expenses, and about which separate financial information is regularly evaluated by our chief operating decision maker, in deciding how to allocate resources. Our chief operating decision maker is the Company’s President and Chief Executive Officer.
Each of the operating segments is directly responsible for revenue and expenses related to their operations including direct regional
administrative costs. Finance, information technology, human resources, and legal are shared functions that are not allocated back to the four operating segments. The CODM assesses the performance of each operating segment using information about its revenue and operating income (loss) before interest, taxes, and depreciation and amortization, but does not evaluate segments using discrete asset information. There are no inter-segment transactions and the Company does not allocate interest and other income, interest expense, depreciation and amortization or taxes to operating segments. The accounting policies for segment reporting are the same as for the Company as a whole.
Our business is managed based on regions administered by executive vice presidents. The following is a summary of revenues (excluding
reimbursed management contract revenue) and gross profit by regions for the three and nine months ended September 30, 2012 and 2011.
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Table of Contents The Company has provided this business unit segment information for all comparable prior periods. Segment information is summarized as
follows (unaudited, in thousands):
14
For the three months ended For the nine months ended
September 30,
2012
Gross Margin
September 30,
2011
Gross Margin
September 30,
2012
Gross Margin
September 30,
2011
Gross Margin
Revenues:
Region One
Lease contracts
$ 22,028 $ 21,118
$ 62,603 $ 60,709
Management contracts
13,631 13,989
40,605 40,702
Total Region One
35,659 35,107
103,208 101,411
Region Two
Lease contracts
1,100 883
3,404 2,224
Management contracts
9,752 3,841
23,596 16,543
Total Region Two
10,852 4,724
27,000 18,767
Region Three
Lease contracts
9,349 5,885
24,889 17,383
Management contracts
13,697 13,254
40,603 38,482
Total Region Three
23,046 19,139
65,492 55,865
Region Four
Lease contracts
10,491 9,584
32,030 29,547
Management contracts
11,965 11,960
36,147 35,617
Total Region Four
22,456 21,544
68,177 65,164
Other
Lease contracts
1 31
1 36
Management contracts
181 215
611 212
Total Other
182 246
612 248
Reimbursed revenue
100,958 106,365
309,055 307,615
Total revenues
$ 193,153 $ 187,125
$ 573,544 $ 549,070
Gross Profit
Region One
Lease contracts
$ 1,601 7 % $ 1,898
9 % $ 3,830 6 % $ 4,193
7 % Management contracts
7,375 54 % 7,945
57 % 22,033 54 % 22,214
55 % Total Region One
8,976 9,843
25,863 26,407
Region Two
Lease contracts
28 3 % 53
6 % 136 4 % 205
9 % Management contracts
2,067 21 % 1,228
32 % 5,474 23 % 4,229
26 % Total Region Two
2,095 1,281
5,610 4,434
Region Three
Lease contracts
575 6 % 571
10 % 2,105 8 % 1,730
10 % Management contracts
5,868 43 % 5,770
44 % 17,251 42 % 17,995
47 % Total Region Three
6,443 6,341
19,356 19,725
Region Four
Lease contracts
719 7 % 707
7 % 2,287 7 % 1,937
7 % Management contracts
3,769 32 % 4,092
34 % 12,054 33 % 12,148
34 % Total Region Four
4,488 4,799
14,341 14,085
Other
Lease contracts
(62 ) (6,200 )% 223 719 % 1,074
107,400 % — —%
Management contracts (262 ) (145 )% 1,735
807 % 1,831 300 % 1,774
837 % Total Other
(324 ) 1,958
2,905 1,774
Total gross profit
21,678 24,222
68,075 66,425
General and administrative
expenses 13,846
11,814 43,759
34,593
General and administrative expense percentage of gross profit
64 % 49 %
64 % 52 %
Depreciation and amortization
1,723 1,683
5,258 4,893
Operating income
6,109 10,725
19,058 26,939
Other expenses (income):
Interest expense
1,093 1,197
3,355 3,546
Interest income
(61 ) (297 )
(266 ) (470 )
1,032
900 3,089
3,076
Income before income taxes 5,077
9,825 15,969
23,863
Income tax expense 2,623
3,760 7,007
9,305
Net income 2,454
6,065 8,962
14,558
Less: Net income attributable to noncontrolling interest
75 89
232 260
Net income attributable to
Standard Parking Corporation $ 2,379
$ 5,976 $ 8,730
$ 14,298
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Region One encompasses operations in Alabama, Connecticut, Delaware, District of Columbia, Florida, Georgia, Illinois, Indiana, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, and Wisconsin.
Region Two encompasses our Canadian operations, event planning and transportation, and our technology-based parking and traffic
management systems. Region Three encompasses operations in Arizona, California, Colorado, Hawaii, Louisiana, Nevada, Texas, Utah, Washington, and
Wyoming. Region Four encompasses all major airport and transportation operations nationwide. Other consists of ancillary revenue that is not specifically identifiable to a region and insurance reserve adjustments related to prior years. The CODM does not evaluate segments using discrete asset information.
11. Comprehensive Income
Comprehensive income consists of the following components, net of tax (unaudited):
12. Income Taxes
For the three months ended September 30, 2012, the Company recognized income tax expense of $2,623 on pre-tax earnings of $5,077 compared to $3,760 income tax expense on pre-tax earnings of $9,825 for the three months ended September 30, 2011. For the nine months ended September 30, 2012, the Company recognized income tax expense of $7,007 on pre-tax earnings of $15,969 compared to $9,305 income tax expense on pre-tax earnings of $23,863 for the nine months ended September 30, 2011. Income tax expense is based on a projected effective tax rate of approximately 43.9% for the nine months ended September 30, 2012 compared to approximately 39.0% for the nine months ended September 30, 2011. The Company’s effective tax rate increased due to certain non-deductible transaction costs associated with the Central Parking merger and the expiration of Work Opportunity Tax Credit (WOTC) Program and other similar tax credit programs on December 31, 2011.
As of September 30, 2012, the Company has not identified any uncertain tax positions that would have a material impact on the Company’s
financial position. The Company recognizes potential interest and penalties related to uncertain tax positions, if any, in income tax expense. The tax years that remain subject to examination for the Company’s major tax jurisdictions at September 30, 2012 are shown below:
13. Legal Proceedings
We are subject to litigation in the normal course of our business. The outcomes of legal proceedings and claims brought against us and other loss contingencies are subject to significant uncertainty. We accrue a charge against income when our management determines that it is probable that an asset has been impaired or a liability has been incurred and the amount of loss can be reasonably estimated. In addition, we accrue for the authoritative judgments or assertions made against us by government agencies at the time of their rendering regardless of our intent to appeal. In determining the appropriate accounting for loss contingencies, we consider the likelihood of loss or impairment of an asset or the incurrence of a liability, as well as our ability to reasonably estimate the amount of
15
For the three months ended For the nine months ended
September 30, 2012
September 30, 2011 September 30, 2012
September 30, 2011
Net income $ 2,454
$ 6,065 $ 8,962
$ 14,558
Effective portion of interest rate cap 64
9 153
(59 ) Effect of foreign currency translation
138 (452 ) 55
(406 ) Comprehensive income
2,656 5,622
9,170 14,093
Less: comprehensive income attributable to
noncontrolling interest 75
89 232
260
Comprehensive income attributable to Standard Parking Corporation
$ 2,581 $ 5,533
$ 8,938 $ 13,833
2009 – 2011 United States — federal income tax
2005 – 2011 United States — state and local income tax
2008 – 2011 Canada
Table of Contents loss. We regularly evaluate current information available to us to determine whether an accrual should be established or adjusted. Estimating the probability that a loss will occur and estimating the amount of a loss or a range of loss involves significant judgment. In addition, the Company is subject to various legal proceedings, claims and other matters which arise in the ordinary course of business. In the opinion of management, the amount of the liability, if any, with respect to these matters will not materially affect the Company’s consolidated financial statements. We maintain liability insurance coverage to assist in protecting our assets from losses arising from or related to activities associated with business operations. 14. Fair Value Measurement
The Company applies ASC 820 for fair value measurements and disclosures for its financial assets and financial liabilities. The standard requires disclosures about assets and liabilities measured at fair value. The Company’s financial assets measured at fair value on a recurring basis at September 30, 2012 and December 31, 2011 relate to the interest rate cap of $0 and $8, respectively, and the Company’s financial liabilities measured at fair value on a recurring basis relate to contingent earn-out payments of $4,570 and $6,498, respectively.
The accounting guidance for fair value measurements and disclosures includes a fair value hierarchy that is intended to increase consistency
and comparability in fair value measurements and related disclosures. The fair value hierarchy is based on observable or unobservable inputs to valuation techniques that are used to measure fair value. Observable inputs reflect assumptions market participants would use in pricing an asset or liability based on market data obtained from independent sources while unobservable inputs reflect a reporting entity’s pricing based upon its own market assumptions. The fair value hierarchy consists of the following three levels:
• Level 1: Inputs are quoted prices in active markets for identical assets or liabilities. • Level 2: Inputs are quoted prices for similar assets or liabilities in an active market, quoted prices for identical or similar assets or liabilities
in markets that are not active, and inputs other than quoted prices that are observable and market-corroborated inputs, which are derived principally from or corroborated by observable market data.
• Level 3: Inputs that are derived from valuation techniques in which one or more significant inputs or value drivers are unobservable.
The significant inputs used to derive the fair value of the amounts due to seller include financial forecasts of future operating results, the probability of reaching the forecast and the associated discount rate. The probability of the contingent consideration ranges from 0% to 95%, with a weighted average discount rate of 10%. The following table sets forth the Company’s financial assets and liabilities measured at fair value on a recurring basis and the basis of measurement at September 30, 2012 and December 31, 2011:
The following table provides a reconciliation of the beginning and ending balances for the liabilities measured at fair value using significant
unobservable inputs (Level 3):
For the nine months ended September 30, 2012, the Company recorded adjustments to the original contingent consideration obligation
recorded upon the acquisition of Gameday Management Group U.S. and Expert Parking. The adjustments were the result of using revised forecasts and updated fair value measurements that adjusted the Company’s potential earn-out payments related to the purchase of these businesses.
16
Total Fair Value Measurement at
September 30, 2012 Level 1
Level 2 Level 3
Assets:
Interest Rate Cap
$ — $ —
$ — $ —
Liabilities:
Due to seller
$ (4,570 ) $ — $ —
$ (4,570 )
Total Fair Value Measurement at
December 31, 2011 Level 1
Level 2 Level 3
Assets:
Interest Rate Cap
$ 8 $ —
$ 8 $ —
Liabilities:
Due to seller
$ (6,498 ) $ — $ —
$ (6,498 )
Due to Seller
Balance at December 31, 2011 $ (6,498 )
Contingent earn-out payments-payments made to seller 1,525
Contingent earn-out payments-change in fair value
403
Balance at September 30, 2012 $ (4,570 )
Table of Contents
For the three and nine months ended September 30, 2012, the Company recognized a benefit of $35 and $403, respectively, which is included in general and administrative expenses in the statement of income due to the change in fair value measurements using level three valuation techniques.
15. Stock Repurchases
In June 2011, our Board of Directors authorized us to repurchase shares of our common stock, on the open market, up to $20,000 in aggregate and cancelled a prior authorization from 2008.
2012 Stock Repurchases
There were no stock repurchases for the nine months ended September 30, 2012. As of September 30, 2012, $12,467 remained available for stock repurchases under the June 2011 authorization by the Board of Directors.
2011 Stock Repurchases
During the second quarter of 2011, we repurchased 27,803 shares from third-party shareholders at an average price of $15.52 per share, including average commissions of $0.03 per share, on the open market. The total value of the second quarter transactions was $431. At June 30, 2011, 27,803 shares were held as treasury stock. In July 2011 we returned the shares to authorized and unissued.
During the third quarter of 2011, we repurchased 286,109 shares from third-party shareholders at an average price of $16.08 per share,
including average commissions of $0.03 per share, on the open market. The total value of the third quarter transactions was $4,600. At September 30, 2011, 55,370 shares were held as treasury stock. In October 2011 we returned the shares to authorized and unissued.
16. Agreement and Plan of Merger with Central Parking Corporation Agreement and Plan of Merger
On February 28, 2012, the Company, KCPC Holdings, Inc., a Delaware corporation (“KCPC”) and the ultimate parent of Central Parking Corporation, a Tennessee corporation, Hermitage Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of the Company (“Merger Sub”), and Kohlberg CPC Rep, LLC, in its capacity as the Stockholders’ Representative, entered into an Agreement and Plan of Merger (the “Merger Agreement”), providing for the merger of Merger Sub with and into KCPC, with KCPC surviving as a wholly owned subsidiary of the Company (the “Merger”).
The Merger Agreement contains customary representations, warranties and covenants of the Company and KCPC, including, among
others, covenants of each of the Company and KCPC not to engage in certain significant actions without the prior written consent of the other party ( e.g., declaring dividends and incurring additional indebtedness).
Pursuant to the Merger Agreement, the stockholders of KCPC (the “KCPC Stockholders”) have agreed to indemnify the Company for a
number of items, including, among others, adverse consequences resulting from breaches of representations, warranties and covenants and certain identified liabilities. These indemnification obligations are in certain cases limited to claims that in the aggregate exceed a specified “deductible” amount and, in the aggregate, do not exceed a specified “cap” amount.
The Merger Agreement and the other transactions contemplated by the Merger Agreement have been approved by each of the board of
directors of the Company (the “Company Board”), the board of directors of KCPC and the KCPC Stockholders. In addition, at a special meeting of the Company’s stockholders held on September 11, 2012 the Company’s stockholders voted on, and approved, a proposal to issue up to 6,161,334 shares of Company stock in connection with the Merger.
In addition to obtaining the approval of the Company Stockholders as described above, the consummation of the Merger was subject to
antitrust clearances. On September 26, 2012, the Company and KCPC entered into an Asset Preservation Stipulation and Order (the “ Stipulation and Order “) and a Proposed Final Judgment (the “Proposed Final Judgment”) with the Antitrust Division of the United States Department of Justice regarding the Company’s acquisition of KCPC in the Merger, pursuant to the Merger Agreement. The Stipulation and Order and Proposed Final Judgment were filed in the United States District Court for the District of Columbia (the “District Court”) on September 26, 2012. Under the terms of the Proposed Final Judgment and Stipulation and Order, the Company and KCPC will divest contracts covering slightly more than 100 off-street parking facilities. The contracts, which include both leases and management agreements, will be sold, terminated or permitted to expire without renewal. The District Court approved the Stipulation and Order and Proposed Final Judgment on October 1, 2012, terminating the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and permitting consummation of the Merger.
17
Table of Contents
The foregoing description of the Merger Agreement and the Merger does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which is attached as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on February 28, 2012.
17. Subsequent Events Agreement and Plan of Merger
On October 2, 2012 (the “Closing Date”), the Company completed the Merger. KCPC was the surviving corporation in the Merger and, as
a result, is now a wholly owned subsidiary of the Company. Pursuant to the terms outlined in the agreement above, each share of common stock and preferred stock of KCPC issued and outstanding was converted into the right to receive its pro rata portion of 6,161,334 shares of Company Stock in the aggregate. In addition, each share of KCPC common stock was converted into the right to receive its pro rata portion of $27,000 of total cash consideration (subject to adjustment as provided in the Merger Agreement), to be paid on the third anniversary of the Closing Date, to the extent not used to satisfy the indemnification obligations of the KCPC Stockholders that may arise under the Merger Agreement.
Pursuant to the Merger Agreement, the size of the Company Board was increased from five to eight members on the Closing Date. The
three additional directors of the Company are Paul Halpern, Jonathan Ward and Gordon H. Woodward. Due to significant limitations on access to Central information prior to the acquisition date, and the limited time since the acquisition date,
the initial accounting for the business combination is incomplete at this time. As a result, the Company is unable to provide the amounts recognized as of the acquisition date for the major classes of assets acquired and liabilities assumed, pre-acquisition contingencies and goodwill. Also, the Company is unable to provide the pro forma revenues and earnings of the combined entity. This information will be included in Standard Parking’s 2012 Annual Report on Form 10-K.
Credit Agreement
In connection with the Merger, on the Closing Date, the Company entered into a Credit Agreement (the “Credit Agreement”) with Bank of
America, N.A. (“Bank of America”), as administrative agent, Wells Fargo Bank, N.A. (“Wells Fargo Bank”) and JPMorgan Chase Bank, N.A. (“JPMorgan Chase Bank”), as co-syndication agents, U.S. Bank National Association, First Hawaiian Bank and General Electric Capital Corporation, as co-documentation agents, Merrill Lynch, Pierce, Fenner & Smith Inc., Wells Fargo Securities, LLC and J.P. Morgan Securities LLC, as joint lead arrangers and joint book managers, and the lenders party thereto (the “Lenders”).
Pursuant to the terms, and subject to the conditions, of the Credit Agreement, the Lenders have made available to the Company a new
senior secured credit facility (the “Senior Credit Facility”) that permits aggregate borrowings of $450,000 consisting of (i) a revolving credit facility of up to $200,000 at any time outstanding, which includes a letter of credit facility that is limited to $100,000 at any time outstanding, and (ii) a term loan facility of $250,000. The Senior Credit Facility matures on October 2, 2017.
The entire amount of the term loan portion of the Senior Credit Facility was drawn by the Company on the Closing Date and is subject to
scheduled quarterly amortization of principal based on the following amounts: (i) $22,500 in the first year, (ii) $22,500 in the second year, (iii) $30,000 in the third year, (iv) $30,000 in the fourth year and (v) $37,500 in the fifth year. The Company also borrowed $72,800 under the revolving credit facility on the Closing Date. The proceeds from these borrowings were used by the Company to repay outstanding indebtedness of the Company and KCPC, and will also be used to pay costs and expenses related to the Merger and the related financing and fund ongoing working capital and other general corporate purposes.
Borrowings under the Senior Credit Facility bear interest, at the Company’s option, (i) at a rate per annum based on the Company’s
consolidated total debt to EBITDA ratio for the 12-month period ending as of the last day of the immediately preceding fiscal quarter, determined in accordance with the applicable pricing levels set forth in the Credit Agreement (the “Applicable Margin”) for LIBOR loans, plus the applicable LIBOR rate or (ii) the Applicable Margin for base rate loans plus the highest of (x) the federal funds rate plus 0.5%, (y) the Bank of America prime rate and (z) a daily rate equal to the applicable LIBOR rate plus 1.0%.
Under the terms of the Credit Agreement, the Company is required to maintain a maximum consolidated total debt to EBITDA ratio of
not greater than 4.5:1.0 (with certain step-downs described in the Credit Agreement). In addition, the Company is required to maintain a minimum consolidated fixed charge coverage ratio of not less than 1:25:1.0 (with certain step-ups described in the Credit Agreement).
Events of default under the Credit Agreement include failure to pay principal or interest when due, failure to comply with the financial
and operational covenants, the occurrence of any cross default event, non-compliance with other loan documents, the occurrence of a change of control event, and bankruptcy and other insolvency events. If an event of default occurs and is continuing, the Lenders holding a majority of the commitments and outstanding term loan under the Credit Agreement have the right, among others, to (i) terminate the commitments under the Credit Agreement, (ii) accelerate and require the Company to repay all the outstanding amounts owed under the Credit Agreement and (iii) require the Company to cash collateralize any outstanding letters of credit.
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Table of Contents Each wholly owned domestic subsidiary of the Company (subject to certain exceptions set forth in the Credit Agreement) has
guaranteed all existing and future indebtedness and liabilities of the other guarantors and the Company arising under the Credit Agreement. In connection with and effective upon the execution and delivery of the Credit Agreement on October 2, 2012, the Company terminated
its then-existing Amended and Restated Credit Agreement (the “Prior Credit Agreement”), dated as of July 15, 2008. Losses on the extinguishment of debt will be recorded in interest expense during the fourth quarter in the amounts of $428 and $534 related to the interest rate cap and debt issuance costs, respectively. There were no termination penalties incurred by the Company in connection with the termination of the Prior Credit Agreement.
Interest Rate Swap Agreements
October 25, 2012, the Company entered into interest rate swap transactions (collectively, the “Interest Rate Swaps”) with each of
JPMorgan Chase Bank, Bank of America and PNC Bank, N.A. in an initial aggregate notional amount of $150,000 (the “Notional Amount”). The Interest Rate Swaps have an effective date of October 31, 2012 and a termination date of September 30, 2017. The Interest Rate Swaps effectively fix the interest rate on an amount of variable interest rate borrowings under the Credit Agreement, originally equal to the Notional Amount at 0.7525% per annum plus the applicable margin rate for LIBOR loans under the Credit Agreement determined based upon Standard’s consolidated total debt to EBITDA ratio. The Notional Amount is subject to scheduled quarterly amortization that coincides with quarterly prepayments of principal under the Credit Agreement.
Registration Rights Agreement
In connection with the Merger, on the Closing Date, the Company entered into a Registration Rights Agreement (the “Registration
Rights Agreement”) with Kohlberg CPC Rep, L.L.C. (“Kohlberg”), 2929 CPC HoldCo, LLC (“Lubert-Adler”), VCM STAN-CPC Holdings, LLC (“Versa”), each of which was, immediately prior to the effective time of the Merger (the “Effective Time”), a KCPC Stockholder and, as a result of the Merger, is now a stockholder of the Company. As described in the Company’s Current Report on Form 8-K filed with the SEC on February 29, 2012, pursuant to the terms of the Registration Rights Agreement, the Company is required to file with the SEC a shelf registration statement, registering for public sale by Kohlberg, Lubert-Adler and Versa the shares of Company Stock issued by the Company to such KCPC Stockholders in connection with the Merger, no later than six months following the Closing Date. Under the Registration Rights Agreement, the Company is required to maintain the effectiveness of the shelf registration statement for resales of Common Stock by such KCPC Stockholders until the earliest of (i) the date upon which the registrable securities (as defined in the Registration Rights Agreement) are able to be sold without registration under the Securities Act of 1933, (ii) the date that all registrable securities have been sold and (iii) the seventh anniversary of the effective date of the shelf registration statement. Neither Kohlberg, Lubert-Adler nor Versa is permitted to request an underwritten offering of registrable securities prior to the first anniversary of the Closing Date and, prior to the third anniversary of the Closing Date, neither Kohlberg, Lubert-Adler nor Versa may make any offers or sales of registrable securities pursuant to a shelf registration except in a firm commitment underwritten public offering.
The Registration Rights Agreement also provides Kohlberg, Lubert-Adler and Versa with piggyback registration rights for underwritten
public offerings that the Company may effect for its own account or for the benefit of other selling stockholders. The foregoing description of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by
reference to the Registration Rights Agreement, a copy of which is attached as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on October 2, 2012.
Closing Agreements
As previously disclosed in Item 1.01 of the Company’s Current Report on Form 8-K filed with the SEC on February 29, 2012, on
February 28, 2012, the Company entered into Closing Agreements with Lubert-Adler Real Estate Fund V, L.P., Lubert-Adler Real Estate Parallel Fund V, L.P., Kohlberg Investors V, L.P., Kohlberg TE Investors V, L.P., Kohlberg Partners V, L.P., Kohlberg Offshore Investors V, L.P., KOCO Investors V, L.P., Versa Capital Fund I, L.P. and Versa Capital Fund I Parallel, L.P.
In connection with the Merger, on the Closing Date, the Company entered into additional Closing Agreements (the “Additional Closing
Agreements”) with the KCPC Stockholders, as well as with Sailorshell and Co., CP Klaff Equity LLC and
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Table of Contents Jumpstart Development LLC (Worldwide), each of which was, prior to the transfer of its shares in KCPC to the KCPC Stockholders, a stockholder of KCPC.
Pursuant to the terms of the Additional Closing Agreements, Kohlberg, Lubert-Adler and Versa have agreed that, for a period of three years following the Closing Date and for so long as such KCPC Stockholder owns in the aggregate (together with its affiliates, all other KCPC Stockholders and their respective affiliates and any other persons with which any of the foregoing form a “group”) beneficially or of record more than 10% of the issued and outstanding Company Stock, to cause the shares of Company Stock held by them to be counted as present at any meeting of the Company’s stockholders and to vote, in person or by proxy, all of such shares of Company Stock as follows:
For two years following the Closing Date:
• with respect to the election of directors to the Company Board, “for” any nominees recommended by the Company Board; and
• with respect to all other matters submitted for a vote of the Company’s stockholders, in accordance with the
recommendation of the Company Board with respect to such matters.
For the period beginning on the day after the second anniversary of the Closing Date and ending on the third anniversary of the Closing Date:
• with respect to the election of directors to the Company Board, “for” any nominees recommended by the Company
Board; and • with respect to all other matters submitted for a vote of the Company’s stockholders, in proportion to the votes cast by
all other Company stockholders.
The Additional Closing Agreements also provide that Kohlberg, Lubert-Adler and Versa will be subject to a four-year standstill period following the Closing Date, during which time, such KCPC Stockholder will not, among other things, (i) acquire or agree to acquire any additional voting securities of the Company, (ii) seek or propose a merger, acquisition, tender offer or other extraordinary transaction with or involving the Company or any of its subsidiaries or their respective securities or assets, (iii) call a meeting of the stockholders of the Company or initiate a stockholder proposal or (iv) form a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934) with any person (other than an affiliate of such KCPC Stockholder) with respect to the acquisition or voting of any voting securities of the Company.
The Additional Closing Agreements impose certain restrictive covenants on Kohlberg and Versa, including (i) confidentiality
obligations with respect to confidential information of the Company and (ii) non-disparagement requirements. Lubert-Adler is subject to confidentiality obligations with respect to confidential information of the Company pursuant to the terms of its Additional Closing Agreement.
The foregoing description of the Additional Closing Agreements does not purport to be complete and is qualified in its entirety by
reference to the Additional Closing Agreements, copies of which are attached as Exhibits 10.2 through 10.8 to the Company’s Current Report on Form 8-K filed with the SEC on October 2, 2012.
Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations
The following discussion of our results of operations should be read in conjunction with the consolidated financial statements and the notes thereto contained in this Quarterly Report on Form 10-Q and the consolidated financial statements and the notes thereto included in our Annual Report on our Form 10-K for the year ended December 31, 2011.
Important Information Regarding Forward-Looking Sta tements
This Form 10-Q contains forward-looking statements as defined in the Private Securities Litigation Reform Act of 1995, including statements regarding our merger with the parent of Central Parking Corporation (“Central”), and the other expectations, beliefs, plans, intentions and strategies of the Company. We have tried to identify these statements by using words such as “expect,” “anticipate,” “believe, “could,” “should,” “estimate,” “expect,” “intend,” “may,” “plan,” “predict,” “project,” and “will” and similar terms and phrases, but such words, terms and phrases are not the exclusive means of identifying such statements. These forward-looking statements are made based on management’s expectations and beliefs concerning future events and are subject to uncertainties and factors relating to operations and the business environment, all of which are difficult to predict and many of which are beyond management’s control. Actual results, performance and achievements could differ materially from those expressed in, or implied by, these forward-looking statements due to a variety of risks, uncertainties and other factors, including, but not limited to, the following: our ability to integrate Central into the business of the Company successfully and the amount of time and expense spent and incurred in connection with the integration; the risk that the economic benefits, cost savings and other synergies that we anticipate as a result of the Central merger are not fully realized or take longer to realize than expected; our substantially increased indebtedness incurred in connection with the Central merger, which may reduce available cash flow, increase vulnerability to adverse economic conditions, and limit flexibility in planning for, or reacting to, changes in or challenges related to our business; unanticipated Central merger and integration expenses; other losses, or renewals on less favorable terms, of management contracts and leases; adverse litigation judgments or settlements; adverse impact to our operations in areas damaged by Hurricane Sandy; changes in general economic and business conditions or demographic trends; the loss of customers, clients or strategic alliances as a result of the Central merger; the effect on our strategy and operations due to changes to the Board of Directors that occurred upon the completion of the merger; the impact of the divestitures of management
contracts and leases required by the agreement entered into by the Company with the Department of Justice in connection with the Central merger; the impact of public and private regulations; financial difficulties or
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Table of Contents bankruptcy of major clients; intense competition; insurance losses that are worse than expected or adverse events not covered by insurance; labor disputes; extraordinary events affecting parking at facilities that we manage, including emergency safety measures, military or terrorist attacks, cyber terrorism and natural disasters; the risk that state and municipal government clients sell or enter into long-term leases of parking-related assets to competitors or clients of our competitors; uncertainty in the credit markets; availability, terms and deployment of capital; our ability to obtain performance bonds on acceptable terms; and the impact of Federal health care reform.
For a detailed discussion of factors that could affect our future operating results, please see our filings with the Securities and Exchange
Commission, including the disclosures under “Risk Factors” in those filings and in this Report. Except as expressly required by the federal securities laws, we undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, changed circumstances, future events or for any other reason. Recent Events Agreement and Plan of Merger
On October 2, 2012 (the “Closing Date”), the Company completed the Merger. KCPC was the surviving corporation in the Merger and, as a result, is now a wholly owned subsidiary of the Company. Pursuant to the terms outlined in the agreement above, each share of common stock and preferred stock of KCPC issued and outstanding was converted into the right to receive its pro rata portion of 6,161,334 shares of Company Stock in the aggregate. In addition, each share of KCPC common stock was converted into the right to receive its pro rata portion of $27.0 million of total cash consideration (subject to adjustment as provided in the Merger Agreement), to be paid on the third anniversary of the Closing Date, to the extent not used to satisfy the indemnification obligations of the KCPC Stockholders that may arise under the Merger Agreement.
Pursuant to the Merger Agreement, the size of the Company Board was increased from five to eight members on the Closing Date. The three additional directors of the Company are Paul Halpern, Jonathan Ward and Gordon H. Woodward.
Due to significant limitations on access to Central information prior to the acquisition date, and the limited time since the acquisition date, the initial accounting for the business combination is incomplete at this time. As a result, the Company is unable to provide the amounts recognized as of the acquisition date for the major classes of assets acquired and liabilities assumed, pre- acquisition contingencies and goodwill. Also, the Company is unable to provide the pro forma revenues and earnings of the combined entity. This information will be included in Standard Parking’s 2012 Annual Report on Form 10-K. Credit Agreement
In connection with the Merger, on the Closing Date, the Company entered into a Credit Agreement (the “Credit Agreement”) with Bank of America, N.A. (“Bank of America”), as administrative agent, Wells Fargo Bank, N.A. (“Wells Fargo Bank”) and JPMorgan Chase Bank, N.A. (“JPMorgan Chase Bank”), as co-syndication agents, U.S. Bank National Association, First Hawaiian Bank and General Electric Capital Corporation, as co-documentation agents, Merrill Lynch, Pierce, Fenner & Smith Inc., Wells Fargo Securities, LLC and J.P. Morgan Securities LLC, as joint lead arrangers and joint book managers, and the lenders party thereto (the “Lenders”).
Pursuant to the terms, and subject to the conditions, of the Credit Agreement, the Lenders have made available to the Company a new senior secured credit facility (the “Senior Credit Facility”) that permits aggregate borrowings of $450.0 million consisting of (i) a revolving credit facility of up to $200.0 million at any time outstanding, which includes a letter of credit facility that is limited to $100.0 million at any time outstanding, and (ii) a term loan facility of $250.0 million. The Senior Credit Facility matures on October 2, 2017.
The entire amount of the term loan portion of the Senior Credit Facility was drawn by the Company on the Closing Date and is subject to scheduled quarterly amortization of principal based on the following amounts: (i) $22.5 million in the first year, (ii) $22.5 million in the second year, (iii) $30.0 million in the third year, (iv) $30.0 million in the fourth year and (v) $37.5 million in the fifth year. The Company also borrowed $72.8 million under the revolving credit facility on the Closing Date. The proceeds from these borrowings were used by the Company to repay outstanding indebtedness of the Company and KCPC, and will also be used to pay costs and expenses related to the Merger and the related financing and fund ongoing working capital and other general corporate purposes.
Borrowings under the Senior Credit Facility bear interest, at the Company’s option, (i) at a rate per annum based on the Company’s consolidated total debt to EBITDA ratio for the 12-month period ending as of the last day of the immediately preceding fiscal quarter, determined in accordance with the applicable pricing levels set forth in the Credit Agreement (the “Applicable Margin”) for LIBOR loans, plus the applicable LIBOR rate or (ii) the Applicable Margin for base rate loans plus the highest of (x) the federal funds rate plus 0.5%, (y) the Bank of America prime rate and (z) a daily rate equal to the applicable LIBOR rate plus 1.0%.
Under the terms of the Credit Agreement, the Company is required to maintain a maximum consolidated total debt to EBITDA ratio of not greater than 4.5:1.0 (with certain step-downs described in the Credit Agreement). In addition, the Company is required to maintain a minimum consolidated fixed charge coverage
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Table of Contents ratio of not less than 1:25:1.0 (with certain step-ups described in the Credit Agreement).
Events of default under the Credit Agreement include failure to pay principal or interest when due, failure to comply with the financial and operational covenants, the occurrence of any cross default event, non-compliance with other loan documents, the occurrence of a change of control event, and bankruptcy and other insolvency events. If an event of default occurs and is continuing, the Lenders holding a majority of the commitments and outstanding term loan under the Credit Agreement have the right, among others, to (i) terminate the commitments under the Credit Agreement, (ii) accelerate and require the Company to repay all the outstanding amounts owed under the Credit Agreement and (iii) require the Company to cash collateralize any outstanding letters of credit.
Each wholly owned domestic subsidiary of the Company (subject to certain exceptions set forth in the Credit Agreement) has guaranteed all existing and future indebtedness and liabilities of the other guarantors and the Company arising under the Credit Agreement.
In connection with and effective upon the execution and delivery of the Credit Agreement on October 2, 2012, the Company terminated its then-existing Amended and Restated Credit Agreement (the “Prior Credit Agreement”), dated as of July 15, 2008. Losses on the extinguishment of debt will be recorded in interest expense during the fourth quarter in the amounts of $0.4 million and $0.5 million related to the interest rate cap and debt issuance costs, respectively. There were no termination penalties incurred by the Company in connection with the termination of the Prior Credit Agreement. Interest Rate Swap Agreements
October 25, 2012, the Company entered into interest rate swap transactions (collectively, the “Interest Rate Swaps”) with each of JPMorgan Chase Bank, Bank of America and PNC Bank, N.A. in an initial aggregate notional amount of $150.0 million (the “Notional Amount”). The Interest Rate Swaps have an effective date of October 31, 2012 and a termination date of September 30, 2017. The Interest Rate Swaps effectively fix the interest rate on an amount of variable interest rate borrowings under the Credit Agreement, originally equal to the Notional Amount at 0.7525% per annum plus the applicable margin rate for LIBOR loans under the Credit Agreement determined based upon Standard’s consolidated total debt to EBITDA ratio. The Notional Amount is subject to scheduled quarterly amortization that coincides with quarterly prepayments of principal under the Credit Agreement. Registration Rights Agreement
In connection with the Merger, on the Closing Date, the Company entered into a Registration Rights Agreement (the “Registration Rights Agreement”) with Kohlberg CPC Rep, L.L.C. (“Kohlberg”), 2929 CPC HoldCo, LLC (“Lubert-Adler”), VCM STAN-CPC Holdings, LLC (“Versa”), each of which was, immediately prior to the effective time of the Merger (the “Effective Time”), a KCPC Stockholder and, as a result of the Merger, is now a stockholder of the Company. As described in the Company’s Current Report on Form 8-K filed with the SEC on February 29, 2012, pursuant to the terms of the Registration Rights Agreement, the Company is required to file with the SEC a shelf registration statement, registering for public sale by Kohlberg, Lubert-Adler and Versa the shares of Company Stock issued by the Company to such KCPC Stockholders in connection with the Merger, no later than six months following the Closing Date. Under the Registration Rights Agreement, the Company is required to maintain the effectiveness of the shelf registration statement for resales of Common Stock by such KCPC Stockholders until the earliest of (i) the date upon which the registrable securities (as defined in the Registration Rights Agreement) are able to be sold without registration under the Securities Act of 1933, (ii) the date that all registrable securities have been sold and (iii) the seventh anniversary of the effective date of the shelf registration statement. Neither Kohlberg, Lubert-Adler nor Versa is permitted to request an underwritten offering of registrable securities prior to the first anniversary of the Closing Date and, prior to the third anniversary of the Closing Date, neither Kohlberg, Lubert-Adler nor Versa may make any offers or sales of registrable securities pursuant to a shelf registration except in a firm commitment underwritten public offering.
The Registration Rights Agreement also provides Kohlberg, Lubert-Adler and Versa with piggyback registration rights for underwritten public offerings that the Company may effect for its own account or for the benefit of other selling stockholders.
The foregoing description of the Registration Rights Agreement does not purport to be complete and is
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Table of Contents qualified in its entirety by reference to the Registration Rights Agreement, a copy of which is attached as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed with the SEC on October 2, 2012. Closing Agreements
As previously disclosed in Item 1.01 of the Company’s Current Report on Form 8-K filed with the SEC on February 29, 2012, on February 28, 2012, the Company entered into Closing Agreements with Lubert-Adler Real Estate Fund V, L.P., Lubert-Adler Real Estate Parallel Fund V, L.P., Kohlberg Investors V, L.P., Kohlberg TE Investors V, L.P., Kohlberg Partners V, L.P., Kohlberg Offshore Investors V, L.P., KOCO Investors V, L.P., Versa Capital Fund I, L.P. and Versa Capital Fund I Parallel, L.P.
In connection with the Merger, on the Closing Date, the Company entered into additional Closing Agreements (the “Additional Closing Agreements”) with the KCPC Stockholders, as well as with Sailorshell and Co., CP Klaff Equity LLC and Jumpstart Development LLC (Worldwide), each of which was, prior to the transfer of its shares in KCPC to the KCPC Stockholders, a stockholder of KCPC.
Pursuant to the terms of the Additional Closing Agreements, Kohlberg, Lubert-Adler and Versa have agreed that, for a period of three years following the Closing Date and for so long as such KCPC Stockholder owns in the aggregate (together with its affiliates, all other KCPC Stockholders and their respective affiliates and any other persons with which any of the foregoing form a “group”) beneficially or of record more than 10% of the issued and outstanding Company Stock, to cause the shares of Company Stock held by them to be counted as present at any meeting of the Company’s stockholders and to vote, in person or by proxy, all of such shares of Company Stock as follows:
For two years following the Closing Date:
• with respect to the election of directors to the Company Board, “for” any nominees recommended by the Company Board; and
• with respect to all other matters submitted for a vote of the Company’s stockholders, in accordance with the recommendation of the Company Board with respect to such matters.
For the period beginning on the day after the second anniversary of the Closing Date and ending on the third anniversary of the Closing Date:
• with respect to the election of directors to the Company Board, “for” any nominees recommended by the Company Board; and
• with respect to all other matters submitted for a vote of the Company’s stockholders, in proportion to the votes cast by all other
Company stockholders.
The Additional Closing Agreements also provide that Kohlberg, Lubert-Adler and Versa will be subject to a four-year standstill period following the Closing Date, during which time, such KCPC Stockholder will not, among other things, (i) acquire or agree to acquire any additional voting securities of the Company, (ii) seek or propose a merger, acquisition, tender offer or other extraordinary transaction with or involving the Company or any of its subsidiaries or their respective securities or assets, (iii) call a meeting of the stockholders of the Company or initiate a stockholder proposal or (iv) form a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934) with any person (other than an affiliate of such KCPC Stockholder) with respect to the acquisition or voting of any voting securities of the Company.
The Additional Closing Agreements impose certain restrictive covenants on Kohlberg and Versa, including (i) confidentiality obligations with respect to confidential information of the Company and (ii) non-disparagement requirements. Lubert-Adler is subject to confidentiality obligations with respect to confidential information of the Company pursuant to the terms of its Additional Closing Agreement.
The foregoing description of the Additional Closing Agreements does not purport to be complete and is qualified in its entirety by reference to the Additional Closing Agreements, copies of which are attached as Exhibits 10.2 through 10.8 to the Company’s Current Report on Form 8-K filed with the SEC on October 2, 2012.
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Table of Contents
Hurricane Sandy
We have significant operations in New Jersey, New York and other areas that have been impacted by Hurricane Sandy. Although it is premature to quantify any potential reduction in revenues or net income related to Hurricane Sandy, we expect that our business and financial results will be adversely impacted. We have not been able to estimate the insured property damage that we have sustained from the hurricane. As of November 9, 2012, no amounts have been recorded related to the deductible portion of our casualty insurance program that we expect to incur in connection with the hurricane-related insurance claim that we will file. Overview Our Business
We manage parking facilities in urban markets and at airports across the United States and in four Canadian provinces. We do not own any facilities, but instead enter into contractual relationships with property owners or managers.
We operate our clients’ properties through two types of arrangements: management contracts and leases. Under a management contract, we
typically receive a base monthly fee for managing the facility, and we may also receive an incentive fee based on the achievement of facility performance objectives. We also receive fees for ancillary services. Typically, all of the underlying revenue and expenses under a standard management contract flow through to our clients rather than to us. However, some management contracts, which are referred to as “reverse” management contracts, usually provide for larger management fees and require us to pay various costs. Under lease arrangements, we generally pay to the property owner either a fixed annual rent, a percentage of gross customer collections or a combination thereof. We collect all revenue under lease arrangements and we are responsible for most operating expenses, but we are typically not responsible for major maintenance, capital expenditures or real estate taxes. Margins for lease contracts vary significantly, not only due to operating performance, but also due to variability of parking rates in different cities and varying space utilization by parking facility type and location. As of September 30, 2012, we operated approximately 91% of our locations under management contracts and approximately 9% of our locations under leases. For the nine months ended September 30, 2012, we derived approximately 86% of our gross profit under management contracts and approximately 14% of our gross profit under leases.
In evaluating our financial condition and operating performance, management’s primary focus is on our gross profit, total general and
administrative expenses and general and administrative expenses as a percentage of our gross profit. Although the underlying economics to us of management contracts and leases are similar, the manner in which we are required to account for them differs. Revenue from leases includes all gross customer collections derived from our leased locations (net of parking tax), whereas revenue from management contracts only includes our contractually agreed upon management fees and amounts attributable to ancillary services. Gross customer collections at facilities under management contracts, therefore, are not included in our revenue. Accordingly, while a change in the proportion of our operating agreements that are structured as leases versus management contracts may cause significant fluctuations in reported revenue and expense of parking services, that change will not artificially affect our gross profit. For example, as of September 30, 2012, we operated approximately 91% of our locations under management contracts, and for the nine months ended September 30, 2012, we derived approximately 86% of our gross profit under management contracts. Only approximately 54% of total revenue (excluding reimbursed management contract revenue), however, was from management contracts because under those contracts the revenue collected from parking customers belongs to our clients. Therefore, gross profit and total general and administrative expenses, rather than revenue, are management’s primary focus.
General Business Trends
We believe that sophisticated commercial real estate developers and property managers and owners recognize the opportunity for parking and related services to be a profit generator rather than a cost center. Often, the parking experience makes both the first and the last impressions on their properties’ tenants and visitors. By outsourcing these services, they are able to capture additional profit by leveraging the unique operational skills and controls that an experienced parking management company can offer. Our ability to consistently deliver a uniformly high level of parking and related services and maximize the profit to our clients improves our ability to win contracts and retain existing locations. Our location retention rate for the twelve-month period ended September 30, 2012 was approximately 90%, compared to approximately 92% for the twelve-month period ended September 30, 2011, which also reflects our decision not to renew, or to terminate, unprofitable contracts.
For the nine months ended September 30, 2012 compared to the nine months ended September 30, 2011, average gross profit per location
increased by 3.5% from $30.4 thousand to $31.5 thousand due primarily to a favorable health insurance dividend related to 2011.
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Table of Contents Summary of Operating Facilities
We focus our operations in core markets where a concentration of locations improves customer service levels and operating margins. The following table reflects our facilities operated at the end of the periods indicated:
Revenue
We recognize parking services revenue from lease and management contracts as the related services are provided. Substantially all of our revenue comes from the following two sources:
• Parking services revenue—lease contracts . Parking services revenue related to lease contracts consist of all revenue received at a leased
facility, including parking receipts (net of parking tax), consulting and real estate development fees, gains on sales of contracts and payments for exercising termination rights.
• Parking services revenue—management contracts. Management contract revenue consists of management fees, including both fixed and
performance-based fees, and amounts attributable to ancillary services such as accounting, equipment leasing, payments received for exercising termination rights, consulting, developmental fees, gains on sales of contracts, as well as insurance and other value-added services with respect to managed locations. We believe we generally purchase required insurance at lower rates than our clients can obtain on their own because we effectively self-insure for all liability and worker’s compensation claims by maintaining a large per-claim deductible. As a result, we have generated operating income on the insurance provided under our management contracts by focusing on our risk management efforts and controlling losses. Management contract revenue does not include gross customer collections at the managed locations as this revenue belongs to the property owner rather than to us. Management contracts generally provide us with a management fee regardless of the operating performance of the underlying facility.
Conversions between type of contracts (lease or management) are typically determined by our client and not us. Although the underlying
economics to us of management contracts and leases are similar, the manner in which we account for them differs substantially.
Reimbursed Management Contract Revenue
Reimbursed management contract revenue consists of the direct reimbursement from the property owner for operating expenses incurred under a management contract, which is reflected in our revenue.
Cost of Parking Services
Our cost of parking services consists of the following: • Cost of parking services—lease contracts. The cost of parking services under a lease arrangement consists of contractual rental fees paid
to the facility owner and all operating expenses incurred in connection with operating the leased facility. Contractual fees paid to the facility owner are generally based on either a fixed contractual amount or a percentage of gross revenue or a combination thereof. Generally, under a lease arrangement we are not responsible for major capital expenditures or real estate taxes.
• Cost of parking services—management contracts. The cost of parking services under a management contract is generally the
responsibility of the facility owner. As a result, these costs are not included in our results of operations. However, our reverse management contracts, which typically provide for larger management fees, do require us to pay for certain costs, which are included in cost of parking services.
Reimbursed Management Contract Expense
Reimbursed management contract expense consists of direct reimbursed costs incurred on behalf of property owners under a management contract, which is reflected in our cost of parking services.
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September 30, 2012 December 31, 2011
September 30, 2011
Managed facilities 1,962
1,953 1,970
Leased facilities
199 201
212
Total facilities 2,161
2,154 2,182
Table of Contents Gross Profit
Gross profit equals our revenue less the cost of generating such revenue. This is the key metric we use to examine our performance because it captures the underlying economic benefit to us of both lease contracts and management contracts.
General and Administrative Expenses
General and administrative expenses include salaries, wages, payroll taxes, insurance, travel and office related expenses for our headquarters, field offices, supervisory employees, and board of directors.
Depreciation and Amortization
Depreciation is determined using a straight-line method over the estimated useful lives of the various asset classes or in the case of leasehold improvements, over the initial term of the operating lease or its useful life, whichever is shorter. Intangible assets determined to have finite lives are amortized over their remaining useful life.
Results of Operations Segments
An operating segment is defined as a component of an enterprise that engages in business activities from which it may earn revenue and incur expenses, and about which separate financial information is regularly evaluated by our chief operating decision maker, in deciding how to allocate resources. Our chief operating decision maker is our president and chief executive officer.
Our business is managed based on regions administered by executive vice presidents. The following is a summary of revenues (excluding
reimbursed management contract revenue) by region for the three and nine months ended September 30, 2012 and 2011. Region One encompasses operations in Alabama, Connecticut, Delaware, District of Columbia, Florida, Georgia, Illinois, Indiana, Kansas,
Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, and Wisconsin.
Region Two encompasses our Canadian operations, event planning and transportation, and our technology-based parking and traffic
management systems. Region Three encompasses operations in Arizona, California, Colorado, Hawaii, Louisiana, Nevada, Texas, Utah, Washington, and
Wyoming. Region Four encompasses all major airport and transportation operations nationwide. Other consists of ancillary revenue that is not specifically identifiable to a region and insurance reserve adjustments related to prior years. The following tables present the material factors that impact our financial statements on an operating segment basis.
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Table of Contents Three Months ended September 30, 2012 Compared to Three Months ended September 30, 2011
Segment revenue information is summarized as follows:
Parking services revenue — lease contracts. Lease contract revenue increased $5.5 million, or 14.7%, to $43.0 million for the three months
ended September 30, 2012, compared to $37.5 million for the three months ended September 30, 2011. The increase resulted primarily from increases in revenue from new locations, partially offset by decreases in revenue from contract expirations and fewer locations that converted from management contracts during the current year. Same location revenue for those facilities, which as of September 30, 2012 are the comparative periods for the two years presented, increased 7.7%. The increase in same location revenue was due to increases in short-term parking revenue of $2.5 million, or 10%, and increases in monthly parking revenue of $0.2 million, or 2.5%. Revenue associated with contract expirations relates to contracts that expired during the current period.
Parking services revenue — management contracts. Management contract revenue increased $5.9 million, or 13.6%, to $49.2 million for the
three months ended September 30, 2012, compared to $43.3 million for the three months ended September 30, 2011. The increase resulted primarily from increases in revenue from new locations, which was offset by the decrease in contract expirations. Same locations revenue for those facilities, which as of September 30, 2012 are the comparative periods for the two years presented, increased 0.8%, primarily due to increased fees from reverse management locations and ancillary services.
Reimbursed management contract revenue. Reimbursed management contract revenue decreased $5.4 million, or 5.1%, to $101.0 million for
the three months ended September 30, 2012, compared to $106.4 million for the three months ended September 30, 2011. This decrease resulted from additional reimbursements for costs incurred on behalf of owners.
Lease contract revenue increased primarily due to new locations in regions one, two and three combined with same location revenue in all
four operating regions. This was partially offset by decreases in contract expirations in all four operating regions and conversions in region one. Same location revenue increases for the aforementioned regions were primarily due to increases in short-term and monthly parking revenue.
Management contract revenue increased primarily due to new locations in all four operating regions, combined with same location revenue in
regions one and three. This was partially offset by contract expirations in all four operating regions, combined with same location revenue in region two and four. The increases in same location revenue were primarily due to an increase in fees from reverse management locations and ancillary services. For comparability purposes, revenue associated with contract expirations relate to the contracts that expired during the current period.
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Three Months Ended September 30,
Region One Region Two
Region Three Region Four
Other Total
Variance
2012 2011
2012 2011
2012 2011
2012 2011
2012 2011
2012 2011
Amount %
(in millions)
Lease contract revenue:
New location
$ 0.8 $ —
$ 0.4 $ 0.2
$ 3.7 $ —
$ — $ —
$ — $ —
$ 4.9 $ 0.2
$ 4.7 2350.0
Contract expirations
0.3 1.2
— 0.1
— 0.5
— 0.1
— —
0.3 1.9
(1.6 ) (84.2 ) Same location
20.9 19.5
0.7 0.6
5.6 5.4
10.5 9.5
— —
37.7 35.0
2.7 7.7
Conversions
0.1 0.4
— —
— —
— —
— —
0.1 0.4
(0.3 ) (75.0 ) Total lease contract revenue
$ 22.1 $ 21.1
$ 1.1 $ 0.9
$ 9.3 $ 5.9
$ 10.5 $ 9.6
$ — $ —
$ 43.0 $ 37.5
$ 5.5 14.7
Management contract revenue:
New location
$ 1.6 $ 0.3
$ 7.3 $ 0.1
$ 0.9 $ 0.1
$ 0.4 $ —
$ — $ —
$ 10.2 $ 0.5
$ 9.7 1940.0
Contract expirations
0.1 2.0
0.1 1.0
0.2 1.2
— 0.3
— —
0.4 4.5
(4.1 ) (91.1 ) Same location
11.8 11.7
2.4 2.8
12.6 11.9
11.5 11.6
0.2 0.2
38.5 38.2
0.3 0.8
Conversions
0.1 0.1
— —
— —
— —
— —
0.1 0.1
— —
Total management contract
revenue $ 13.6
$ 14.1 $ 9.8
$ 3.9 $ 13.7
$ 13.2 $ 11.9
$ 11.9 $ 0.2
$ 0.2 $ 49.2
$ 43.3 $ 5.9
13.6
Table of Contents Segment cost of parking services information is summarized as follows:
Cost of parking services — lease contracts. Cost of parking services for lease contracts increased $6.0 million, or 17.6%, to $40.1 million for
the three months ended September 30, 2012, compared to $34.1 million for the three months ended September 30, 2012. The increase resulted primarily from increases in costs from new locations, which was partially offset by decreases in contract expirations and fewer locations that converted from management contracts during the current year. Same location costs for those facilities, which as of September 30, 2012 are the comparative for the two years presented, increased 10.1%. Same location costs increased $2.9 million due to rent expense, primarily as a result of contingent rental payments on the increase in revenue for same locations, and $0.3 million related to other operating costs.
Cost of parking services — management contracts. Cost of parking services for management contracts increased $7.9 million, or 35.1%, to
$30.4 million for the three months ended September 30, 2012, compared to $22.5 million for the three months ended September 30, 2011. The increase resulted from increases in costs related to new reverse management locations, which was partially offset by decreases in contract expirations. Same location costs for those facilities, which as of September 30, 2012 are the comparative for the two years presented, increased 15.3%. Same location increase in operating expenses for management contracts primarily resulted from increases in costs associated with reverse management contracts and the cost of providing management services. Same location cost also includes an unfavorable change in net insurance loss experience reserve estimates relating to prior years of $0.7 million.
Reimbursed management contract expense. Reimbursed management contract expense decreased $5.4 million, or 5.1%, to $101.0 million for
the three months ended September 30, 2012, compared to $106.4 million for the three months ended September 30, 2011. This decrease resulted from additional reimbursements for costs incurred on behalf of owners.
Cost of parking services for lease contracts increased primarily due to new locations in regions one, two and three, combined with same
locations in all regions, which was partially offset by contract expirations in all four operating regions and conversions in region one. Same location cost increased primarily due to increases in contingent rent payments on the increase in revenue and increases in other operating costs. The other region amounts in same location primarily represent costs that are not specifically identifiable to a region.
Cost of parking services for management contracts increased due to new locations in all four operating regions, combined with increases in
same locations for regions one, three, four and other. Partially offsetting, were decreases due to contract expirations in all four operating regions, and same locations in region two. Same location cost increases primarily resulted from increases in costs associated with reverse management contracts and the cost of providing management services. The other region amounts in same location primarily represent prior year insurance reserve adjustments and costs that are not specifically identifiable to a region.
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Three Months Ended September 30,
Region One
Region Two Region Three
Region Four Other
Total Variance
2012
2011 2012
2011 2012
2011 2012
2011 2012
2011 2012
2011 Amount
%
(in millions)
Cost of parking services lease contracts:
New location
$ 0.5 $ —
$ 0.4 $ 0.2
$ 3.8 $ —
$ — $ —
$ — $ —
$ 4.7 $ 0.2
$ 4.5 2250.0
Contract expirations
0.3 1.1
— 0.1
— 0.5
— 0.1
— —
0.3 1.8
(1.5 ) (83.3 ) Same location
19.3 17.7
0.6 0.5
5.0 4.8
9.8 8.8
0.1 (0.2 ) 34.8
31.6 3.2
10.1
Conversions 0.3
0.5 —
— —
— —
— —
— 0.3
0.5 (0.2 ) (40.0 )
Total cost of parking services lease contracts
$ 20.4 $ 19.3
$ 1.0 $ 0.8
$ 8.8 $ 5.3
$ 9.8 $ 8.9
$ 0.1 $ (0.2 ) $ 40.1
$ 34.1 $ 6.0
17.6
Cost of parking services management contracts:
New location
$ 0.8 $ —
$ 6.0 $ ––
$ 0.5 $ 0.1
$ 0.1 $ —
$ — $ —
$ 7.4 $ 0.1
$ 7.3 7,300.0
Contract expirations
0.2 1.1
0.1 0.7
0.1 0.7
— 0.3
— —
0.4 2.8
(2.4 ) (85.7 ) Same location
5.2 4.9
1.6 1.9
7.3 6.7
8.1 7.6
0.4 (1.5 ) 22.6
19.6 3.0
15.3
Conversions —
— —
— —
— —
— —
— —
— —
—
Total cost of parking services management contracts
$ 6.2 $ 6.0
$ 7.7 $ 2.6
$ 7.9 $ 7.5
$ 8.2 $ 7.9
$ 0.4 $ (1.5 ) $ 30.4
$ 22.5 $ 7.9
35.1
Table of Contents Segment gross profit/gross profit percentage information is summarized as follows:
Gross profit — lease contracts. Gross profit for lease contracts decreased $0.5 million, or 14.7%, to $2.9 million for the three months ended
September 30, 2012, compared to $3.4 million for the three months ended September 30, 2011. Gross profit percentage for lease contracts decreased to 6.7% for the three months ended September 30, 2012, compared to 9.1% for the three months ended September 30, 2011. Gross profit lease contracts decreases were primarily the result of same locations, contract expirations and conversions, partially offset by new locations. Gross profit lease contracts decreases on same locations were primarily the result of increases in costs due to rent expense, primarily as a result of contingent rental payments on the increase in revenue for same locations and increases in other operating costs. Gross profit percentage on same locations and contract expirations accounted for most of the decrease on a percentage basis.
Gross profit — management contracts. Gross profit for management contracts decreased $2.0 million, or 9.6%, to $18.8 million for the three
months ended September 30, 2012, compared to $20.8 million in for the three months ended September 30, 2011. Gross profit percentage for management contracts decreased to 38.2% for the three months ended September 30, 2012, compared to 48.0% for the three months ended September 30, 2011. Gross profit for management contracts decreases were primarily the result of contract expirations and same locations, offset by new locations. Gross profit management contracts decreases on same locations were primarily the result of increases in costs associated with reverse management contracts and the cost of providing management services. Gross profit percentage on contract expirations, same locations and new locations accounted for most of the decline on a percentage basis.
Gross profit for lease contracts decreased primarily due to contract expirations in region one and conversions in region one, partially offset
by new locations in region one. Gross profit lease contracts on same locations decreased primarily due to increases in costs due to rent expense, primarily as a result of contingent rental payments on the increase in revenue for same locations and increases in other operating costs.
Gross profit for management contracts decreased primarily due to same locations in all four operating regions and contract expirations in
regions one, two and three, partially offset by new locations in all four operating regions. Gross profit for management contracts decreases on same locations were primarily the result of increases in costs due to rent expense, primarily as a result of contingent rental payments on the increase in revenue for same locations and increases in other operating costs. The other region
29
Three Months Ended September 30,
Region One
Region Two Region Three
Region Four Other
Total Variance
2012
2011 2012
2011 2012
2011 2012
2011 2012
2011 2012
2011 Amount
%
(in millions)
Gross profit lease contracts:
New location $ 0.3
$ — $ —
$ — $ (0.1 ) $ —
$ — $ —
$ — $ —
$ 0.2 $ —
$ 0.2 100.0
Contract expirations
— 0.1
— —
—
— —
— —
—
— 0.1
(0.1 ) (100.0 ) Same location
1.6 1.8
0.1 0.1
0.6 0.6
0.7 0.7
(0.1 ) 0.2
2.9 3.4
(0.5 ) (14.7 ) Conversions
(0.2 ) (0.1 ) — —
— —
— —
— —
(0.2 ) (0.1 ) (0.1 ) 100.0
Total gross profit lease contracts
$ 1.7 $ 1.8
$ 0.1 $ 0.1
$ 0.5 $ 0.6
$ 0.7 $ 0.7
$ (0.1 ) $ 0.2 $ 2.9
$ 3.4 $ (0.5 ) (14.7 )
(percentages)
Gross profit percentage lease
contracts:
New location 37.5
— —
— (2.7 ) —
— —
— —
4.1 —
Contract expirations
— 8.3
— —
— —
— —
— —
— 5.3
Same location
7.7 9.2
14.3 16.7
10.7 11.1
6.7 7.4
— —
7.7 9.7
Conversions
(200.0 ) (25.0 ) — —
— —
— —
— —
(200.0 ) (25.0 )
Total gross profit percentage 7.7
8.5 9.1
11.1 5.4
10.2 6.7
7.3 —
— 6.7
9.1
(in millions)
Gross profit management contracts:
New location
$ 0.8 $ 0.3
$ 1.3 $ 0.1
$ 0.4 $ —
$ 0.3 $ —
$ — $ —
$ 2.8 $ 0.4
$ 2.4 600.0
Contract expirations
(0.1 ) 0.9 —
0.3 0.1
0.5 —
— —
— —
1.7 (1.7 ) (100.0 )
Same location 6.6
6.8 0.8
0.9 5.3
5.2 3.4
4.0 (0.2 ) 1.7
15.9 18.6
(2.7 ) (14.5 ) Conversions
0.1 0.1
— —
— —
— —
— —
0.1 0.1
— —
Total gross profit management
contracts $ 7.4
$ 8.1 $ 2.1
$ 1.3 $ 5.8
$ 5.7 $ 3.7
$ 4.0 $ (0.2 ) 1.7
$ 18.8 $ 20.8
$ (2.0 ) (9.6 ) (percentages)
Gross profit percentage
management contracts:
New location 50.0
100.0 17.8
100.0 44.4
— 75.0
— —
— 27.5
80.0
Contract expirations (100.0 ) 45.0
— 30.0
50.0 41.7
— —
— —
— 37.8
Same location
55.9 58.1
33.3 32.1
42.1 43.7
29.6 34.5
(100.0 ) 850.0 41.3
48.7
Conversions 100.0
100.0 —
— —
— —
— —
— 100.0
100.0
Total gross profit percentage 54.4
57.4 21.4
33.3 42.3
43.2 31.1
33.6 (100.0 ) 850.0
38.2 48.0
Table of Contents amounts in same location primarily represent prior year insurance reserve adjustments and amounts that are not specifically identifiable to a specific region.
General and administrative expenses. General and administrative expenses increased $2.0 million, or 17.2%, to $13.8 million for the three
months ended September 30, 2012, compared to $11.8 million for the three months ended September 30, 2011. This increase was primarily the related to professional fees incurred in connection with the merger with Central Parking of $3.0 million, partially offset by, payroll and payroll-related expenses of $0.4 million and cost savings from process efficiencies of $0.6 million.
Interest expense. Interest expense decreased $0.1 million, or 8.7%, to $1.1 million for the three months ended September 30, 2012, as
compared to $1.2 million for the three months ended September 30, 2011. This decrease resulted primarily from a decrease in our long-term borrowings.
Interest income. Interest income was $0.1 million and $0.3 million for the three months ended September 30, 2012 and 2011, respectively. Income tax expense. Income tax expense decreased $1.1 million, or 30.2%, to $2.6 million for the three months ended September 30, 2012,
as compared to $3.7 million for the three months ended September 30, 2011. A decrease in our pre-tax income resulted in the $2.4 million decrease in income tax expense. Our effective tax rate was 51.7% for the three months ended September 30, 2012 and 38.2% for the three months ended September 30, 2011, which resulted in a $1.3 million increase in income tax expense.
Nine months ended September 30, 2012 Compared to Nine months ended September 30, 2011
Segment revenue information is summarized as follows:
Parking services revenue — lease contracts. Lease contract revenue increased $13.0 million, or 11.8%, to $122.9 million for the nine months
ended September 30, 2012, compared to $109.9 million for the nine months ended September 30, 2011. The increase resulted primarily from increases in revenue from new locations, partially offset by decreases in revenue from contract expirations and fewer locations that converted from management contracts during the current year. Same location revenue for those facilities, which as of September 30, 2012 are the comparative periods for the two years presented, increased 6.3%. The increase in same location revenue was due to increases in short-term parking revenue of $5.7 million, or 7.8%, and increases in monthly parking revenue of $0.7 million, or 2.3%. Revenue associated with contract expirations relates to contracts that expired during the current period.
Parking services revenue — management contracts. Management contract revenue increased $10.1 million, or 7.7%, to $141.6 million for
the nine months ended September 30, 2012, compared to $131.5 million for the nine months ended September 30, 2011. The increase resulted primarily from increases in revenue from new locations, which was offset by the decrease in contract expirations. Same locations revenue for those facilities, which as of September 30, 2012 are the comparative periods for the two years presented, increased 3.2%, primarily due to increased fees from reverse management locations and ancillary services.
Reimbursed management contract revenue. Reimbursed management contract revenue increased $1.4 million, or 0.5%, to $309.1 million for
the nine months ended September 30, 2012, compared to $307.6 million for the nine months ended September 30, 2011. This increase resulted from additional reimbursed costs incurred on behalf of owners.
Lease contract revenue increased primarily due to new locations in regions one, two and three combined with same location revenue in all
four operating regions. This was partially offset by decreases in contract expirations regions one and three combined
30
Nine Months Ended September 30,
Region One
Region Two Region Three
Region Four Other
Total Variance
2012
2011 2012
2011 2012
2011 2012
2011 2012
2011 2012
2011 Amount
%
(in millions)
Lease contract revenue:
New location $ 1.9
$ 0.2 $ 1.3
$ 0.2 $ 7.9
$ — $ —
$ — $ —
$ — $ 11.1
$ 0.4 $ 10.7
2675.0
Contract expirations 1.9
4.1 0.1
0.1 0.1
1.7 0.2
0.2 —
— 2.3
6.1 (3.8 ) (62.3 )
Same location 57.8
55.3 2.1
1.9 16.8
15.7 31.9
29.3 —
— 108.6
102.2 6.4
6.3
Conversions 0.9
1.2 —
— —
— —
— —
— 0.9
1.2 (0.3 ) (25.0 )
Total lease contract revenue $ 62.5
$ 60.8 $ 3.5
$ 2.2 $ 24.8
$ 17.4 $ 32.1
$ 29.5 $ —
$ — $ 122.9
$ 109.9 $ 13.0
11.8
Management contract revenue:
New location $ 4.9
$ 0.8 $ 9.4
$ 0.2 $ 3.5
$ 1.0 $ 1.5
$ 0.6 $ —
$ — $ 19.3
$ 2.6 $ 16.7
642.3
Contract expirations 1.9
6.7 1.5
3.5 1.3
3.7 —
1.0 —
— 4.7
14.9 (10.2 ) (68.5 )
Same location 33.4
32.8 12.7
12.9 35.8
33.7 34.7
34.0 0.6
0.2 117.2
113.6 3.6
3.2
Conversions 0.4
0.4 —
— —
— —
— —
— 0.4
0.4 —
—
Total management contract revenue
$ 40.6 $ 40.7
$ 23.6 $ 16.6
$ 40.6 $ 38.4
$ 36.2 $ 35.6
$ 0.6 $ 0.2
$ 141.6 $ 131.5
$ 10.1 7.7
Table of Contents with conversions in region one. Same location revenue increases for the aforementioned regions were primarily due to increases in short-term and monthly parking revenue.
Management contract revenue increased primarily due to new locations in all four operating regions, combined with same location revenue
increases in regions one, three, four and other. This was partially offset by contract expirations in all four operating regions and same location revenues in region two. The increases in same location revenue were primarily due to an increase in fees from reverse management locations and ancillary services. For comparability purposes, revenue associated with contract expirations relate to the contracts that expired during the current period.
Segment cost of parking services information is summarized as follows:
Cost of parking services — lease contracts. Cost of parking services for lease contracts increased $11.7 million, or 11.5%, to $113.5 million
for the nine months ended September 30, 2012, compared to $101.8 million for the nine months ended September 30, 2012. The increase resulted primarily from increases in costs from new locations, which was partially offset by decreases in contract expirations and fewer locations that converted from management contracts during the current year. Same location costs for those facilities, which as of September 30, 2012 are comparative for the two years presented, increased 5.9%. Same location costs increased $6.7 million due to rent expense, primarily as a result of contingent rental payments on the increase in revenue for same locations, offset by $1.1 million due to a favorable health insurance dividend related to prior years.
Cost of parking services — management contracts. Cost of parking services for management contracts increased $9.7 million, or 13.3%, to
$82.9 million for the nine months ended September 30, 2012, compared to $73.2 million for the nine months ended September 30, 2011. The increase resulted from increases in costs related to new reverse management locations, which was partially offset by decreases in contract expirations. Same location costs for those facilities, which as of September 30, 2012 are comparative for the two years presented, increased 6.6%. Same location increase in operating expenses for management contracts primarily resulted from increases in costs associated with reverse management contracts and the cost of providing management services. Same location cost also includes an unfavorable change in net insurance loss experience reserve estimates relating to prior years of $0.7 million and a favorable health insurance dividend related to prior years of $0.9 million.
Reimbursed management contract expense. Reimbursed management contract revenue increased $1.4 million, or 0.5%, to $309.1 million for
the nine months ended September 30, 2012, compared to $307.6 million for the nine months ended September 30, 2011. This increase resulted from additional reimbursed costs incurred on behalf of owners.
Cost of parking services for lease contracts increased primarily due to new locations in regions one, two and three, combined with same
locations in all four operating regions, which was partially offset by contract expirations in regions one, three and four, conversions in region one and same locations in the other region. Same location cost increased primarily due to increases in contingent rent payments on the increase in revenue, offset by a favorable health insurance dividend related to prior years. The other region amounts in same location primarily represent a favorable health insurance dividend related to prior years and costs that are not specifically identifiable to a region.
Cost of parking services for management contracts increased due to new locations in all four operating regions, combined with increases in
same locations in regions one, three, four and other. Partially offsetting, were decreases due to contract expirations in all four operating regions, and same locations in the region two. Same location cost increases primarily resulted from increases in costs associated with reverse management contracts and the cost of providing management services. The other region amounts in same location primarily represent prior year insurance reserve adjustments, a favorable health insurance dividend related to prior years and costs that are not specifically identifiable to a region.
31
Nine Months Ended September 30,
Region One
Region Two Region Three
Region Four Other
Total Variance
2012
2011 2012
2011 2012
2011 2012
2011 2012
2011 2012
2011 Amount
%
(in millions)
Cost of parking services lease contracts:
New location
$ 1.7 $ 0.1
$ 1.3 $ 0.2
$ 7.6 $ —
$ — $ —
$ — $ —
$ 10.6 $ 0.3
$ 10.3 3433.3
Contract expirations
1.9 3.9
0.1 0.1
0.1 1.6
0.2 0.4
— —
2.3 6.0
(3.7 ) (61.7 ) Same location
54.4 51.3
1.9 1.6
15.1 14.1
29.6 27.3
(1.1 ) — 99.9
94.3 5.6
5.9
Conversions 0.7
1.2 —
— —
— —
— —
— 0.7
1.2 (0.5 ) (41.7 )
Total cost of parking services lease contracts
$ 58.7 $ 56.5
$ 3.3 $ 1.9
$ 22.8 $ 15.7
$ 29.8 $ 27.7
$ (1.1 ) $ — $ 113.5
$ 101.8 $ 11.7
11.5
Cost of parking services management contracts:
New location
$ 2.3 $ 0.4
$ 7.8 $ ––
$ 1.8 $ 0.5
$ 2.0 $ 1.1
$ — $ —
$ 13.9 $ 2.0
$ 11.9 595.0
Contract expirations
1.2 4.0
0.9 2.5
0.7 1.7
— 0.9
— —
2.8 9.1
(6.3 ) (69.2 ) Same location
14.9 14.0
9.5 9.8
20.8 18.3
22.1 21.5
(1.2 ) (1.6 ) 66.1 62.0
4.1 6.6
Conversions
0.1 0.1
— —
— —
— —
— —
0.1 0.1
— —
Total cost of parking services
management contracts $ 18.5
$ 18.5 $ 18.2
$ 12.3 $ 23.3
$ 20.5 $ 24.1
$ 23.5 $ (1.2 ) $ (1.6 ) $ 82.9
$ 73.2 $ 9.7
13.3
Table of Contents Segment gross profit/gross profit percentage information is summarized as follows:
Gross profit — lease contracts. Gross profit for lease contracts increased $1.3 million, or 16.0%, to $9.4 million for the nine months ended
September 30, 2012, compared to $8.1 million for the nine months ended September 30, 2011. Gross profit percentage for lease contracts increased to 7.6% for the nine months ended September 30, 2012, compared to 7.4% for the nine months ended September 30, 2011. Gross profit lease contracts increases were primarily the result of new locations, same locations and conversion, partially offset by contract expirations. Gross profit lease contracts increases on same locations were primarily the result of increases in short-term and monthly parking revenue and a favorable health insurance dividend related to prior years. Gross profit percentage on same locations accounted for most of the increase on a percentage basis.
Gross profit — management contracts. Gross profit for management contracts increased $0.4 million, or 0.7%, to $58.7 million for the nine
months ended September 30, 2012, compared to $58.3 million in for the nine months ended September 30, 2011. Gross profit percentage for management contracts decreased to 41.5% for the nine months ended September 30, 2012, compared to 44.3% for the nine months ended September 30, 2011. Gross profit for management contracts increases were primarily the result of new locations, offset by same locations and contract expirations. Gross profit management contracts decreases on same locations were primarily the result of increases in costs associated with reverse management contracts and the cost of providing management services. Gross profit percentage on same locations accounted for most of the decline on a percentage basis.
Gross profit for lease contracts increased primarily due to new locations in regions one and three, conversions in region one and same
locations in regions three, four and other. Partially offsetting, were contract expirations in region one and three, same locations in regions one and two. Gross profit lease contracts on same locations increased primarily due to increases in short-term and monthly parking revenue and a favorable health insurance dividend related to prior years.
Gross profit for management contracts increased primarily due to new locations in regions one, two and three and same locations in regions
two and four, partially offset by contract expirations in all four operating regions, combined with same locations in regions one and three. Gross profit for management contracts decreases on same locations were primarily the result of increases in costs associated with reverse management contracts and the cost of providing management services. The other region amounts in same location
32
Nine Months Ended September 30,
Region One
Region Two Region Three
Region Four Other
Total Variance
2012
2011 2012
2011 2012
2011 2012
2011 2012
2011 2012
2011 Amount
%
(in millions)
Gross profit lease contracts:
New location $ 0.2
$ 0.1 $ —
$ — $ 0.3
$ — $ —
$ — $ —
$ — $ 0.5
$ 0.1 $ 0.4
400.0
Contract expirations —
0.2 —
—
— 0.1
— (0.2 ) —
—
— 0.1
(0.1 ) (100.0 ) Same location
3.4 4.0
0.2 0.3
1.7 1.6
2.3 2.0
1.1 —
8.7
7.9 0.8
10.1
Conversions 0.2
— —
— —
— —
— —
—
0.2 —
0.2 100.0
Total gross profit lease contracts
$ 3.8 $ 4.3
$ 0.2 $ 0.3
$ 2.0 $ 1.7
$ 2.3 $ 1.8
$ 1.1 $ —
$ 9.4 $ 8.1
$ 1.3 16.0
(percentages)
Gross profit percentage lease
contracts:
New location 10.5
50.0 —
— 3.8
— —
— —
— 4.5
25.0
Contract expirations —
4.9 —
— —
5.9 —
(100.0 ) — —
— 1.6
Same location
5.9 7.2
9.5 15.8
10.1 10.2
7.2 6.8
— —
8.0 7.7
Conversions
22.2 —
— —
— —
— —
— —
22.2 —
Total gross profit percentage
6.1 7.1
5.7 13.6
8.1 9.8
7.2 6.1
— —
7.6 7.4
(in millions)
Gross profit management contracts:
New location
$ 2.6 $ 0.4
$ 1.6 $ 0.2
$ 1.7 $ 0.5
$ (0.5 ) $ (0.5 ) $ — $ —
$ 5.4 $ 0.6
$ 4.8 800.0
Contract expirations
0.7 2.7
0.6 1.0
0.6 2.0
— 0.1
— —
1.9 5.8
(3.9 ) (67.2 ) Same location
18.5 18.8
3.2 3.1
15.0 15.4
12.6 12.5
1.8 1.8
51.1 51.6
(0.5 ) (1.0 ) Conversions
0.3 0.3
— —
— —
— —
— 0.3
0.3 —
—
Total gross profit management contracts
$ 22.1 $ 22.2
$ 5.4 $ 4.3
$ 17.3 $ 17.9
$ 12.1 $ 12.1
$ 1.8 $ 1.8
58.7 58.3
0.4
0.7
(percentages)
Gross profit percentage
management contracts:
New location 53.1
50.0 17.0
100.0 48.6
50.0 (33.3 ) (83.3 ) —
— 28.0
23.1
Contract expirations 36.8
40.3 40.0
28.6 46.2
54.1 —
10.0 —
— 40.4
38.9
Same location 55.4
57.3 25.2
24.0 41.9
45.7 36.3
36.8 300.0
900.0 43.6
45.4
Conversions 75.0
75.0 —
— —
— —
— —
— 75.0
75.0
Total gross profit percentage 54.4
54.5 22.9
25.9 42.6
46.6 33.4
34.0 300.0
900.0 41.5
44.3
Table of Contents primarily represent prior year insurance reserve adjustments, a favorable health insurance dividend related to prior years and amounts that are not specifically identifiable to a specific region.
General and administrative expenses. General and administrative expenses increased $9.2 million, or 26.5%, to $43.8 million for the nine
months ended September 30, 2012, compared to $34.6 million for the nine months ended September 30, 2011. This increase was primarily the related to professional fees incurred in connection with the merger with Central Parking of $10.5 million, payroll and payroll-related expenses of $0.8 million, partially offset by a favorable health insurance dividend related to prior years of $1.2 million and cost savings from process efficiencies of $0.9 million.
Interest expense. Interest expense decreased $0.2 million, or 5.4%, to $3.4 million for the nine months ended September 30, 2012, as
compared to $3.5 million for the nine months ended September 30, 2011. This decrease resulted primarily from a decrease in our long-term borrowings.
Interest income. Interest income was $0.3 million and $0.5 million of the nine months ended September 30, 2012 and 2011, respectively. Income tax expense. Income tax expense decreased $2.3 million, or 24.7%, to $7.0 million for the nine months ended September 30, 2012, as
compared to $9.3 million for the nine months ended September 30, 2011. A decrease in our pre-tax income resulted in a $3.5 million decrease in income tax expense. Our effective tax rate was 43.9% for the nine months ended September 30, 2012 and 39.0% for the nine months ended September 30, 2011, which resulted in a $2.1 million increase in income tax expense.
Liquidity and Capital Resources Outstanding Indebtedness
On September 30, 2012, we had total indebtedness of approximately $73.3 million, a decrease of $8.7 million from December 31, 2011. The $73.3 million includes:
• $71.8 million under our senior credit facility; and • $1.5 million of other debt including capital lease obligations and obligations on seller notes and other indebtedness. We believe that our cash flow from operations, combined with availability under our senior credit facility, which amounted to $38.7 million
at September 30, 2012, will be sufficient to enable us to pay our indebtedness, or to fund other liquidity needs. We may need to refinance all or a portion of our indebtedness on or before their respective maturities. We believe that we will be able to refinance our indebtedness on commercially reasonable terms.
Senior Credit Facility
On July 15, 2008, we amended and restated our credit facility. As of May 31, 2012, the Company entered into an amendment to extend the termination date from June 29, 2013 to October 1, 2013.
The $210.0 million revolving senior credit facility includes a letter of credit sub-facility with a sublimit of $50.0 million and a swing line
sub-facility with a sublimit of $10.0 million. The $50.0 million letter of credit sub-facility does not limit the maximum actual borrowings on the revolving senior credit facility.
Our revolving senior credit facility bears interest, at our option, at either (1) LIBOR plus an applicable LIBOR margin of between 2.00% and
3.50% depending on the ratio of our total funded indebtedness to our EBITDA from time to time (“Total Debt Ratio”) or (2) the Base Rate (as defined below) plus an applicable Base Rate Margin of between 0.50% and 2.00% depending on our Total Debt Ratio. We may elect interest periods of one, two, three or six months for LIBOR based borrowings. The Base Rate is the greater of (i) the rate publicly announced from time to time by Bank of America, N.A. as its “prime rate,” or (ii) the overnight federal funds rate plus 0.50%.
Certain financial covenants limit the Company’s capacity to fully draw on its $210.0 million revolving credit facility. Our senior credit
facility includes a fixed charge ratio covenant; a total debt to EBITDA ratio covenant; a limit on our ability to incur additional indebtedness, issue preferred stock or pay dividends; and certain other restrictions on our activities. We are required to repay borrowings under our senior credit facility out of the proceeds of future issuances of debt or equity securities and asset sales, subject to certain customary exceptions. Our senior credit facility is secured by substantially all of our assets and all assets acquired in the future (including a pledge of 100% of the stock of our existing and future domestic guarantor subsidiaries and 65% of the stock of our existing and future foreign subsidiaries).
We are in compliance with all of our financial covenants.
33
Table of Contents The weighted average interest rate on our senior credit facility at September 30, 2012 and December 31, 2011 was 3.2% and 3.1%,
respectively. The rate includes all outstanding LIBOR contracts, interest rate cap effect and letters of credit. The weighted average interest rate on outstanding borrowings, not including letters of credit, was 3.2% at September 30, 2012 and December 31, 2011.
At September 30, 2012, we had $17.8 million of letters of credit outstanding under the senior credit facility, borrowings against the senior
credit facility aggregated $71.8 million and we had $38.7 million available under the senior credit facility.
Interest Rate Cap Transactions
We do not enter into derivative instruments for any purpose other than cash flow hedging purposes. On February 22, 2010, we entered into interest rate cap agreements with Wells Fargo Bank N.A. (“Wells Fargo”) and Fifth Third Bank
(“Fifth Third”), allowing us to limit our exposure on a portion of our borrowings under our senior credit facility (“Rate Cap Transactions”). Pursuant to two separate letter agreements between the Company and Wells Fargo and Fifth Third, respectively, we will receive payments from Wells Fargo and Fifth Third each quarterly period to the extent that the prevailing three-month LIBOR during that period exceeds our cap rate of 3.25%. The Rate Cap Transactions became effective March 31, 2010, and settle each quarter on a date that is intended to coincide with our quarterly interest payments dates under our senior credit facility. The Rate Cap Transactions cap our LIBOR interest rate on a notional amount of $50 million at 3.25% for a total of 39 months. These Rate Cap Transactions are classified as a cash flow hedge, and we calculate the effectiveness of the hedge on a quarterly basis. The ineffective portion of the cash flow hedge is recognized in current period earnings as an increase of interest expense. The fair value of the interest rate cap at September 30, 2012 and December 31, 2011 is $0 and $8 thousand, respectively, and is included in prepaid expenses and supplies.
Stock Repurchases
In June 2011, our Board of Directors authorized us to repurchase shares of our common stock, on the open market, up to $20.0 million in aggregate and cancelled a prior authorization from 2008.
2012 Stock Repurchases
There were no stock repurchases for the nine months ended September 30, 2012. As of September 30, 2012, $12.5 million remained available for stock repurchases under the June 2011 authorization by the Board of Directors.
2011 Stock Repurchases
During the second quarter of 2011, we repurchased 27,803 shares from third-party shareholders at an average price of $15.52 per share, including average commissions of $0.03 per share, on the open market. The total value of the second quarter transactions was $0.4 million. At June 30, 2011, 27,803 shares were held as treasury stock. In July 2011 we returned the shares to authorized and unissued.
During the third quarter of 2011, we repurchased 286,109 shares from third-party shareholders at an average price of $16.08 per share,
including average commissions of $0.03 per share, on the open market. The total value of the third quarter transactions was $4.6 million. At September 30, 2011, 55,370 shares were held as treasury stock. In October 2011 we returned the shares to authorized and unissued.
Letters of Credit
At September 30, 2012, we have provided letters of credit totaling $17.5 million to our casualty insurance carrier to collateralize our casualty insurance program.
As of September 30, 2012, we provided $0.3 million in letters to collateralize other obligations.
Deficiency Payments
Pursuant to our obligations with respect to the parking garage operations at Bradley International Airport, we are required to make certain payments for the benefit of the State of Connecticut and for holders of special facility revenue bonds. The deficiency payments represent contingent interest bearing advances to the trustee to cover operating cash flow requirements. The payments, if any, are recorded as a receivable by us for which we are reimbursed from time to time as provided in the trust agreement. As of September 30, 2012, we have a receivable of $14.6 million, comprised of cumulative deficiency payments to the trustee, net of reimbursements. We believe these advances to be fully recoverable and therefore have not recorded a valuation allowance for them. We do not guarantee the payment of any principal or interest on any debt obligations of the State of Connecticut or the trustee.
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We made deficiency payments (net of repayments received) of $1.2 million in the nine months ended September 30, 2012 compared to $1.1 million in the nine months ended September 30, 2011. In addition we received $85 thousand from the trustee for interest income on deficiency repayments from the trustee in the nine months ended September 30, 2012 compared to $0 in the nine months ended September 30, 2011. We did not record or receive any premium income on deficiency repayments in the nine months ended September 30, 2012 compared to $54 thousand in the nine months ended September 30, 2011.
Daily Cash Collections
As a result of day-to-day activity at our parking locations, we collect significant amounts of cash. Lease contract revenue is generally deposited into our local bank accounts, with a portion remitted to our clients in the form of rental payments according to the terms of the leases. Under management contracts, some clients require us to deposit the daily receipts into one of our local bank accounts, with the cash in excess of our operating expenses and management fees remitted to the clients at negotiated intervals. Other clients require us to deposit the daily receipts into client accounts and the clients then reimburse us for operating expenses and pay our management fee subsequent to month-end. Some clients require a segregated account for the receipts and disbursements at locations. Our working capital and liquidity may be adversely affected if a significant number of our clients require us to deposit all parking revenue into their respective accounts.
Our liquidity also fluctuates on an intra-month and intra-year basis depending on the contract mix and timing of significant cash payments.
Additionally, our ability to utilize cash deposited into our local accounts is dependent upon the availability and movement of that cash into our corporate account. For all these reasons, from time to time, we carry a significant cash balance, while also utilizing our senior credit facility.
Net Cash Provided by Operating Activities
Our primary sources of funds are cash flows from operating activities and changes in working capital. Net cash provided by operating activities totaled $11.0 million for the nine months ended September 30, 2012. Cash provided included cash provided from operations of $19.3 million from operations, partially offset by changes in operating assets and liabilities of $8.3 million. The net change in operating assets and liabilities resulted primarily from (i) an increase of $16.3 million in notes and accounts receivable due to timing of customer collections; (ii) an increase of $0.7 million in prepaid and other assets related to the timing of certain insurance policies and other expenses and an increase in the cash surrender values related to the non-qualified deferred compensation plan; (iii) partially offset by an increase of $6.7 million in accounts payable due primarily to the timing on payments to our clients and new business under management contracts as described under “Daily Cash Collections”; and (iv) an increase of $2.0 million in other liabilities primarily related to an increase in insurance loss estimates and non-qualified deferred compensation plan.
Our primary sources of funds are cash flows from operating activities and changes in working capital. Net cash provided by operating
activities totaled $13.0 million for the nine months ended September 30, 2011. Cash provided included cash provided from operations of $24.3 million from operations, partially offset by changes in operating assets and liabilities of of $11.3 million. The net change in operating assets and liabilities resulted primarily from (i) an increase of $3.2 million in notes and accounts receivable, which primarily related to an increase in business from new locations, acquisitions and deficiency payments related to Bradley International Airport guarantor payments as described under “Deficiency Payments”; (ii) an increase of $1.0 million in prepaid and other assets related to the timing of certain insurance policies and other expenses and an increase in the cash surrender values related to the non-qualified deferred compensation plan; (iii) a decrease of $2.2 million in accounts payable due primarily to the timing on payments to our clients and new business under management contracts as described under “Daily Cash Collections”; and (iv) a decrease of $4.9 million in other liabilities primarily related to class action settlement paid during the third quarter of $2.2 million, payments for long-term contractual obligations, and a decrease in customer deposits related to timing of certain events.
Net Cash Used in Investing Activities
Net cash used in investing activities totaled $3.8 million in the nine months ended September 30, 2012. Cash used in investing activities for the nine months ended September 30, 2012 included capital expenditures of $3.1 million for capital investments needed to secure and/or extend leased facilities, cost of contract purchases of $0.6 million and contingent payments on previously acquired contracts of $0.1 million.
Net cash used in investing activities totaled $3.6 million in the nine months ended September 30, 2011. Cash used in investing activities
for the nine months ended September 30, 2011 included capital expenditures of $2.9 million for capital investments needed to secure and/or extend leased facilities, cost of contract purchases of $0.4 million and contingent payments on previously acquired contracts of $0.3 million.
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Net Cash Used in Financing Activities
Net cash used in financing activities totaled $10.1 million in the nine months ended September 30, 2012. Cash used in financing activities for 2012 included $1.5 million for earn-out payments on previously acquired businesses, $0.4 million for payments on capital leases, $8.2 million for payments on our senior credit facility, $0.2 million for distributions to noncontrolling interest, payment of debt issuance costs of $0.1 million, partially offset by $0.1 million from the exercise of stock options and $0.2 million from the tax benefit related to stock option exercises.
Net cash used in financing activities totaled $8.8 million in the nine months ended September 30, 2011. Cash used in financing activities
for 2011 included $5.0 million for repurchase of common stock, $0.4 million for payments on capital leases, $3.3 million for payments on our senior credit facility, $0.3 million for distributions to noncontrolling interest, partially offset by $0.1 million from the exercise of stock options and $0.1 million from the tax benefit related to stock option exercises.
Cash and Cash Equivalents
We had cash and cash equivalents of $10.4 million and $13.2 million at September 30, 2012 and December 31, 2011, respectively. The cash balances reflect our ability to utilize funds deposited into our local accounts and which based upon availability, timing of deposits and the subsequent movement of that cash into our corporate accounts may result in significant changes to our cash balances.
Item 3. Quantitative and Qualitative Disclosures about Market Risk Interest Rates
Our primary market risk exposure consists of risk related to changes in interest rates. We use a variable rate senior credit facility to finance our operations. This facility exposes us to variability in interest payments due to changes in interest rates. If interest rates increase, interest expense increases and conversely, if interest rates decrease, interest expense also decreases. We believe that it is prudent to limit the exposure of an increase in interest rates.
We do not enter into derivative instruments for any purpose other than cash flow hedging purposes. On February 22, 2010, we entered into interest rate cap agreements with Wells Fargo Bank N.A. (“Wells Fargo”) and Fifth Third Bank
(“Fifth Third”), allowing us to limit our exposure to increases in variable interest rates on a portion of our borrowings under our senior credit facility (“Rate Cap Transactions”). Pursuant to two separate letter agreements between the Company and Wells Fargo and Fifth Third, respectively, we will receive payments from Wells Fargo and Fifth Third each quarterly period to the extent that the prevailing three month LIBOR during that period exceeds our cap rate of 3.25%. The Rate Cap Transactions are effective March 31, 2010, and will settle each quarter on a date that is intended to coincide with our quarterly interest payments dates under our senior credit facility. The Rate Cap Transactions cap our LIBOR interest rate on a notional amount of $50 million at 3.25% for a total of 39 months. These Rate Cap Transactions are classified as a cash flow hedge, and we calculate the effectiveness of the hedge on a quarterly basis. The ineffective portion of the cash flow hedge is recognized in current period earnings as an increase of interest expense. The fair value of the interest rate cap at September 30, 2012 and December 31, 2011 is $0 and $8 thousand, respectively, and is included in prepaid expenses and supplies.
Our $210.0 million senior credit facility provides for a $210.0 million variable rate revolving facility. In addition, the credit facility includes
a letter of credit sub-facility with a sublimit of $50.0 million and swing line sub-facility with a sublimit of $10.0 million. The $50.0 million letter of credit sub-facility does not limit the maximum actual borrowings on the revolving senior credit facility. Interest expense on such borrowing is sensitive to changes in the market rate of interest. If we were to borrow the entire $220.0 million available under the facility, a 1% increase in the average market rate would result in an increase in our annual interest expense of $2.2 million.
This amount is determined by considering the impact of the hypothetical interest rates on our borrowing cost, but does not consider the
effects of the reduced level of overall economic activity that could exist in such an environment. Due to the uncertainty of the specific changes and their possible effects, the foregoing sensitivity analysis assumes no changes in our financial structure.
Foreign Currency Risk
Our exposure to foreign exchange risk is minimal. All foreign investments are denominated in U.S. dollars, with the exception of Canada. We had approximately $1.5 million of Canadian dollar denominated cash instruments at September 30, 2012. We had no Canadian dollar denominated debt instruments at September 30, 2011. We do not hold any hedging instruments related to foreign currency transactions. We monitor foreign currency positions and may enter into certain hedging instruments in the future should we determine that exposure to foreign exchange risk has increased.
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Item 4. Controls and Procedures Evaluation of Disclosure Controls and Procedures
As of the end of the period covered by this quarterly report, our chief executive officer, chief financial officer and corporate controller carried out an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures pursuant to Rule 13a-14 of the Securities Exchange Act of 1934 (the “Exchange Act”). Based upon their evaluation, our chief executive officer, chief financial officer and corporate controller concluded that our disclosure controls and procedures were adequate and effective and designed to ensure that material information relating to us (including our consolidated subsidiaries) required to be disclosed by us in the reports we file under the Exchange Act is recorded, processed, summarized and reported within the required time periods.
Changes in Internal Controls Over Financial Reporting
There have been no significant changes in our internal control over financial reporting that occurred during the last fiscal quarter that has materially affected, or is reasonably likely to materially affect, our internal controls over financial reporting. Limitations of the Effectiveness of Internal Control
A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the internal control system are met. Because of the inherent limitations of any internal control system, no evaluation of controls can provide absolute assurance that all control issues, if any, within a company have been detected.
PART II. OTHER INFORMATION Item 1. Legal Proceedings
We are subject to litigation in the normal course of our business. The outcomes of legal proceedings and claims brought against us and other loss contingencies are subject to significant uncertainty. We accrue a charge against income when our management determines that it is probable that an asset has been impaired or a liability has been incurred and the amount of loss can be reasonably estimated. In addition, we accrue for the authoritative judgments or assertions made against us by government agencies at the time of their rendering regardless of our intent to appeal. In determining the appropriate accounting for loss contingencies, we consider the likelihood of loss or impairment of an asset or the incurrence of a liability, as well as our ability to reasonably estimate the amount of loss. We regularly evaluate current information available to us to determine whether an accrual should be established or adjusted. Estimating the probability that a loss will occur and estimating the amount of a loss or a range of loss involves significant judgment. In addition, the Company is subject to various legal proceedings, claims and other matters which arise in the ordinary course of business. In the opinion of management, the amount of the liability, if any, with respect to these matters will not materially affect the Company’s consolidated financial statements. We maintain liability insurance coverage to assist in protecting our assets from losses arising from or related to activities associated with business operations.
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Table of Contents Item 1A. Risk Factors
You should carefully consider the specific risk factors described below together with all other information contained in or incorporated by reference into this Report, as these risks, among others, are important factors that could cause our actual results to differ from our historical results. It is not possible to predict or identify all such factors. Consequently, you should not consider any such list to be a complete statement of all potential risks or uncertainties applicable to our business.
For purposes of this discussion of the risk factors related to our business, references to “we,” “our” and similar shall be to both
Standard Parking and Central Parking unless otherwise indicated.
We may be unable to integrate Central Parking’s business with our own successfully.
On October 2, 2012, we completed our acquisition of Central Parking Corporation, or Central Parking, which involved the merger of a subsidiary of our company with and into Central Parking, with Central Parking surviving as our wholly owned subsidiary. We are devoting significant management attention and resources to integrating Central Parking’s business practices and operations with our own. Potential difficulties we may encounter as part of the integration process include the following:
• the potential inability to successfully combine Central Parking’s business with our own in a manner that permits us to achieve the cost
synergies expected to be achieved within two years of the completion of the merger and other benefits anticipated to result from the merger;
• the potential inability to integrate Central Parking’s customer-facing products and services, such as its centralized customer service
centers, direct-to-consumer marketing programs, various web-based applications and enhanced technology applications such as those used by its Focus Point remote management division;
• challenges leveraging the customer information and technology of the two companies; • challenges effectuating the diversification strategy, including challenges achieving revenue growth from sales of each company’s
products and services to the clients and customers of the other company; • complexities associated with managing the combined businesses, including difficulty addressing possible differences in corporate
cultures and management philosophies and the challenge of integrating complex systems, technology, networks and other assets of each of the companies in a seamless manner that minimizes any adverse impact on customers, clients, employees, lenders and other constituencies; and
• potential unknown liabilities and unforeseen increased expenses associated with the merger.
It is possible that the integration process could result in diversion of the attention of each company’s management which could adversely affect each company’s ability to maintain relationships with customers, clients, employees and other constituencies or our ability to achieve the anticipated benefits of the merger, or could reduce each company’s earnings or otherwise adversely affect our business and financial results following the merger.
We incurred substantial additional indebtedness in connection with the merger.
In connection with the merger, we entered into a credit agreement dated October 2, 2012 providing for $450.0 million in senior secured credit facilities consisting of (1) a $200.0 million five year revolving credit facility and (2) a $250.0 million term loan facility with Bank of America, N.A., Wells Fargo Bank, N.A., and JPMorgan Chase Bank, N.A. and certain other financial institutions. In conjunction with
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Table of Contents the merger, we assumed approximately $210.0 million of Central Parking’s debt, net of cash acquired, which was repaid at closing using the proceeds of the $450.0 million senior credit facilities. In addition, the proceeds from these borrowings have been and will be used by us to finance in part the merger, the costs and expenses related to the merger and the ongoing working capital and other general corporate purposes of Standard Parking. As a result, we have indebtedness that is substantially greater than our indebtedness prior to the merger. This higher level of indebtedness may:
• require us to dedicate a greater percentage of our cash flow from operations to payments on our debt, thereby reducing the
availability of cash flow to fund capital expenditures, pursue other acquisitions or investments in new technologies, make stock repurchases, pay dividends and for general corporate purposes;
• increase our vulnerability to general adverse economic conditions, including increases in interest rates if the borrowings bear
interest at variable rates or if such indebtedness is refinanced at a time when interest rates are higher; and • limit our flexibility in planning for, or reacting to, changes in or challenges relating to our business and industry, creating
competitive disadvantages compared to other competitors with lower debt levels and borrowing costs.
We cannot assure you that cash flow from operations, combined with additional borrowings under the credit facility and any future credit facility, will be available in an amount sufficient to enable us to repay our indebtedness, or to fund other liquidity needs. If the consolidated leverage ratio exceeds certain thresholds, the interest rate on indebtedness outstanding under our credit facility will be higher. In addition, if the consolidated leverage ratio exceeds certain other thresholds, we will be required to make mandatory prepayments of our outstanding indebtedness using excess free cash flow.
We and our subsidiaries may incur substantial additional indebtedness in the future, which could cause the related risks to intensify. We
may need to refinance all or a portion of our indebtedness on or before their respective maturities. We cannot assure you that we will be able to refinance any of our indebtedness, including our senior credit facility, on commercially reasonable terms or at all. If we are unable to refinance our debt, we may default under the terms of our indebtedness, which could lead to an acceleration of the debt. We do not expect that we could repay all of our outstanding indebtedness if the repayment of such indebtedness was accelerated.
We have incurred substantial expenses and expect to incur additional substantial expenses related to the merger and our integration with Central Parking.
We have incurred or expect to incur approximately $39.0 million in total merger and integration costs, including $8.0 million in transaction costs, $22.0 million for synergy planning and integration costs and $9.0 million for financing costs. While we have assumed that this level of expense will be incurred, there are many factors beyond our control that could affect the total amount or the timing of the merger and integration expenses. Moreover, many of the expenses that will be incurred are, by their nature, difficult to estimate accurately. To the extent these merger and integration expenses are higher than anticipated, our future operating results and financial condition may be materially adversely affected and our ability to meet the leverage ratio and fixed charged ratio mandated by our credit facilities may be impaired.
Third parties may terminate or alter existing contracts with Central Parking.
Central Parking has management contracts and leases with parking facility owners that have “ change of control ” or similar clauses that allow the counterparty to terminate or change the terms of their contract upon the closing of the transactions contemplated by the merger agreement. Central Parking reviewed its top 50 leases based on amounts derived from Central Parking’s EBITDA for the fiscal year ended September 30, 2011 (which leases represented approximately 24% of Central Parking’s parking
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Table of Contents revenue and approximately 11% of Central Parking’s revenue for such fiscal year) for change of control provisions. Of such leases, approximately 15% had change of control provisions requiring third-party consent that were triggered by the merger. Neither Central Parking nor Standard Parking has yet reviewed the other Central Parking leases or the Central Parking management contracts because of the expense and time commitment associated with any such review. As a result, we cannot quantify the percentage of the remaining contracts with change of control provisions requiring third-party consent that were triggered by the merger. Standard Parking and Central Parking have agreed to work together to identify any such material contracts and to obtain necessary consents from such third parties, but if these third party consents cannot be obtained, or are obtained on unfavorable terms, we may lose the benefit of such contracts going forward, including benefits that may be material to our business following the merger. Central Parking’s management contracts typically can be terminated by the parking facility owner in its discretion upon 30 days’ notice. Thus, pursuant to management contracts containing such a termination provision, facility owners may terminate at any time with 30 days’ notice either prior to or after the effective date of the merger, whether or not the specific management contract has a change of control provision. We do not anticipate that we will know whether any management contracts or leases will be terminated by parking facility owners, or whether any such contracts will be renegotiated, until the merger has been completed and, accordingly, we cannot currently quantify the financial impact, if any, of the loss of any benefits of such contracts.
Adverse litigation judgments or settlements resulting from legal proceedings in which we may be involved in the normal course of business could affect our operations and financial condition.
In the normal course of business, we are from time to time involved in various legal proceedings. The outcome of these legal proceedings cannot be predicted. It is possible that an unfavorable outcome of some or all of the matters could cause us to incur substantial liabilities that may have a material adverse effect upon our financial condition and results of operations. Any significant adverse litigation, judgments or settlements could have a negative effect on our business, financial condition and results of operations. In addition, Central Parking is subject to a number of ongoing legal proceedings. Following the merger, we will incur substantial expenses defending such matters and may have judgments levied against us that are substantial and may not be covered by reserves.
Damage caused by Hurricane Sandy will adversely impact our business and financial results.
We have significant operations in New Jersey, New York and other areas that have been impacted by Hurricane Sandy. Although it is premature to quantify any potential reduction in revenues or net income related to Hurricane Sandy, we expect that our business and financial results will be adversely impacted. We have not been able to estimate the insured property damage that we have sustained from the hurricane. As of November 9, 2012, no amounts have been recorded related to the deductible portion of our casualty insurance program that we expect to incur in connection with the hurricane-related insurance claim that we will file.
Deterioration in economic conditions in general could reduce the demand for parking and ancillary services and, as a result, reduce our earnings and adversely affect our financial condition.
Adverse changes in global, national and local economic conditions could have a negative impact on our business. High domestic unemployment has contributed to reduced discretionary spending by consumers and slowed or reduced economic activity by businesses in the U.S. and most major global economies compared to 2007 levels. In addition, our business operations tend to be concentrated in large urban areas. Many of our customers are workers who commute by car to their places of employment in these urban centers. Our business could be materially adversely affected to the extent that weak economic conditions or demographic factors have resulted in the elimination of jobs and high unemployment in these large urban areas. In addition, increased unemployment levels, the movement of white-collar jobs from urban centers to suburbs or out of North America entirely, increased office vacancies in urban areas, movement toward home office alternatives or lower consumer spending could reduce consumer demand for our services.
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Table of Contents Adverse changes in economic conditions could also lead to a decline in parking at airports and commercial facilities, including facilities
owned by retail operators and hotels. In particular, reductions in parking at leased facilities can lower our profit because a decrease in revenue would be exacerbated by fixed costs that we must pay under our leases.
If adverse economic conditions reduce discretionary spending, business travel or other economic activity that fuels demand for our
services, our earnings could be reduced. Adverse changes in local and national economic conditions could also depress prices for our services or cause clients to cancel their agreements to purchase our services.
The merger may result in a loss of customers, clients and strategic alliances.
As a result of the merger, some of the customers, clients, potential customers or clients or strategic partners of Standard Parking or Central Parking may terminate their business relationship with Standard Parking following the merger. Potential clients or strategic partners may delay entering into, or decide not to enter into, a business relationship with us because of the merger. If customer or client relationships or strategic alliances are adversely affected by the merger, our business and financial performance following the merger would suffer.
Our management contracts and leases expose us to certain risks.
The loss or renewal on less favorable terms of a substantial number of management contracts or leases could have a material adverse effect on our business, financial condition and results of operations. A material reduction in the operating income associated with the integrated services we provide under management contracts and leases could have a material adverse effect on our business, financial condition and results of operations. Standard Parking’s management contracts are typically for a term of one to three years, although the contracts may often be terminated, without cause, on 30 days’ notice or less, giving clients regular opportunities to attempt to negotiate a reduction in fees or other allocated costs. Any loss of a significant number of clients could in the aggregate materially adversely affect our operating results.
In addition, we are particularly exposed to increases in costs for locations that we operate under leases because we are generally
responsible for all the operating expenses of our leased locations. Additionally, certain of the leases to which Central Parking is party include provisions allocating responsibility for all structural repairs required on the property to Central Parking, including repairs arising as a result of ordinary wear and tear. The number of leases under which Central Parking may have responsibility for structural repairs is difficult to quantify, mainly due to the large number of leases to which Central Parking is a party, unclear language in many of Central Parking’s leases regarding repairs and the parties responsible for such repairs, and the uncertainty as to the interpretation of such language under the laws of the states governing those leases. Furthermore, the potential liability associated with any structural repair obligations is currently unknown and difficult to estimate. We may not have sufficient reserves, and the applicable indemnity under the merger agreement may be inadequate, to cover such obligations. An increase in the cost of parking services could reduce our gross profit derived from locations that we operate under leases. As of September 30, 2012, Standard Parking operated 9% of its locations under leases; as of September 30, 2012, Central Parking operated approximately 35% of its locations under leases.
The merger resulted in changes to our Board that may affect the strategy and operations of the combined company as compared to that of Standard Parking and Central Parking.
Following the completion of the merger, our Board increased from five to eight directors and three new directors designated for appointment to our Board by the representative of KCPC’s stockholders became members of our Board. This new composition of our Board may affect our business strategy and operating decisions following completion of the merger. In addition, there can be no assurances that the new board will function effectively as a team and that there will not be any adverse effects on our business as a result.
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Table of Contents The disposition of contracts required under our agreement with the DOJ in connection with the merger could have an adverse effect on us.
On September 26, 2012, we entered into an Asset Preservation Stipulation and Order and a Proposed Final Judgment with the Antitrust Division of the United States Department of Justice in connection with the Central Parking merger. Under the terms of these agreements we are divesting contracts covering slightly more than 100 off-street parking facilities. The contracts, which include both leases and management agreements, have been or will be sold, terminated or permitted to expire without renewal. The impact of the divestitures of these contracts required by these agreements is unknown and could have an adverse effect on us.
We must comply with public and private regulations that may impose significant costs on us.
Under various federal, state and local environmental laws, ordinances and regulations, a current or previous owner or operator of real property may be liable for the costs of removal or remediation of hazardous or toxic substances on, under or in such property. These laws typically impose liability without regard to whether the owner or operator knew of, or was responsible for, the presence of such hazardous or toxic substances. We may be potentially liable for such costs as a result of our operation of parking facilities. Additionally, Central Parking previously owned a large number of real properties and may be liable for such costs as a result of such previous ownership. In addition, from time to time we are involved in environmental issues at certain locations or in connection with our operations. The cost of defending against claims of liability, or remediation of a contaminated property, could have a material adverse effect on our business, financial condition and results of operations. In addition, several state and local laws have been passed in recent years that encourage car pooling and the use of mass transit. Laws and regulations that reduce the number of cars and vehicles being driven could adversely impact our business.
In connection with certain transportation services provided to our clients, including shuttle bus operations, we provide the vehicles and
the drivers to operate these transportation services. The U.S. Department of Transportation and various state agencies exercise broad powers over these transportation services, including, licensing and authorizations, safety and insurance requirements. Our employee drivers must also comply with the safety and fitness regulations promulgated by the Department of Transportation, including those related to drug and alcohol testing and service hours. We may become subject to new and more restrictive federal and state regulations. Compliance with such regulations could hamper our ability to provide qualified drivers and increase our operating costs.
We are also subject to consumer credit laws and credit card industry rules and regulations relating to the processing of credit card
transactions, including the Fair and Accurate Credit Transactions Act and the Payment Card Data Security Standard. This law and these industry rules impose substantial financial penalties for non-compliance.
In addition, we are subject to laws generally applicable to businesses, including but not limited to federal, state and local regulations
relating to wage and hour matters, employee classification, mandatory healthcare benefits, unlawful workplace discrimination and whistle blowing. Any actual or alleged failure to comply with any regulation applicable to our business or any whistle-blowing claim, even if without merit, could result in costly litigation, regulatory action or otherwise harm our business, financial condition and results of operations.
We collect and remit sales/parking taxes and file tax returns for and on behalf of ourselves and our clients. We are affected by laws and
regulations that may impose a direct assessment on us for failure to remit sales/parking taxes and filing of tax returns for ourselves and on behalf of our clients.
The financial difficulties or bankruptcy of one or more of our major clients could adversely affect our results.
Future revenue and our ability to collect accounts receivable depend, in part, on the financial strength of our clients. We estimate an allowance for accounts we do not consider collectible, and this
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Table of Contents allowance adversely impacts profitability. In the event that our clients experience financial difficulty, become unable to obtain financing or seek bankruptcy protection, our profitability would be further impacted by our failure to collect accounts receivable in excess of the estimated allowance. Additionally, our future revenue would be reduced by the loss of these clients or by the cancellation of leases or management contracts by clients in bankruptcy.
We are subject to intense competition that could constrain our ability to gain business, as well as our profitability.
We believe that competition in parking facility management and ancillary services is intense. The low cost of entry into the parking facility management business has led to a strongly competitive, fragmented market consisting primarily of a variety of entities ranging from single lot operators to large regional and national multi-facility operators, as well as municipal and other governmental entities that choose not to outsource their parking operations. Competitors may be able to adapt more quickly to changes in customer requirements, or devote greater resources to the promotion and sale of their services. We provide nearly all of our services under contracts, many of which are obtained through competitive bidding, and many of our competitors also have long-standing relationships with our clients. Providers of parking facility management services have traditionally competed on the basis of cost and quality of service. As we have worked to establish ourselves as principal members of the industry, we compete predominately on the basis of high levels of service and strong relationships. We may not be able to, or may choose not to, compete with certain competitors on the basis of price. As a result, a greater proportion of our clients may switch to other service providers or self-manage. Furthermore, these strong competitive pressures could impede our success in bidding for profitable business and our ability to increase prices even as costs rise, thereby reducing margins.
Additional funds would need to be reserved for future insurance losses if such losses are worse than expected.
We provide liability and worker’s compensation insurance coverage consistent with our obligations to our clients under our various management contracts and leases. We are obligated to reimburse our insurance carriers for each loss incurred in the current policy’s year up to the amount of a specified deductible. The per-occurrence deductible for Standard Parking’s various liability and workers’ compensation policies is $250,000. The per-occurrence deductible (or in some cases self-insured retention) for Central Parking’s various liability and workers’ compensation policies is $250,000, except for the garage keeper’s legal liability policy, which has a $50,000 self-insured retention and a $1 million deductible per occurrence. We also purchase property insurance that provides coverage for loss or damage to our property, and in some cases our clients’ property, as well as business interruption coverage for lost operating income and certain associated expenses. The deductible applicable to any given loss under the property insurance policies varies based upon the insured values and the peril that causes the loss. Our financial statements reflect our funding of all such obligations based upon guidance and evaluation received from third-party insurance professionals. There can be no assurance, however, that the ultimate amount of our obligations will not exceed the amount presently funded or accrued, in which case we would need to set aside additional funds to reserve for any such excess. Changes in insurance reserves as a result of periodic evaluations of the liabilities can cause swings in operating results that may not be indicative of the operations of our ongoing business. Additionally, our obligations could increase if we receive a greater number of insurance claims, or if the severity of, or the administrative costs associated with, those claims generally increases. A material increase in insurance costs due to a change in the number or severity of claims, claim costs or premiums paid by us could have a material adverse effect on our operating income.
Labor disputes could lead to loss of revenues or expense variations.
At December 31, 2011, approximately 31% of Standard Parking’s employees were represented by labor unions and approximately 22% of Standard Parking’s collective bargaining contracts were up for renewal in 2012, representing approximately 5% of Standard Parking’s employees. At September 30, 2011, approximately 30% of Central Parking’s employees were represented by labor unions and approximately 30% of Central Parking’s collective bargaining contracts were up for renewal in 2012,
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Table of Contents representing approximately 6% of its employees. In addition, at any given time, we may face a number of union organizing drives.
When one or more of our major collective bargaining agreements becomes subject to renegotiation or when we face union organizing
drives, we may disagree with the union on important issues that, in turn, could lead to a strike, work slowdown or other job actions. There can be no assurance that we will be able to renew existing labor union contracts on acceptable terms. In such cases, there are no assurances that we would be able to staff sufficient employees for our short-term needs. A strike, work slowdown or other job action could in some cases disrupt us from providing services, resulting in reduced revenues. If declines in client service occur or if our clients are targeted for sympathy strikes by other unionized workers, contract cancellations could result. The result of negotiating a first time agreement or renegotiating an existing collective bargaining agreement could result in a substantial increase in labor and benefits expenses that we may be unable to pass through to clients. In addition, potential legislation could make it significantly easier for union organizing drives to be successful and could give third-party arbitrators the ability to impose terms of collective bargaining agreements upon us and a labor union if we are unable to agree with such union on the terms of a collective bargaining agreement.
In addition, we make contributions to multiemployer benefit plans on behalf of certain employees covered by collective bargaining
agreements and could be responsible for paying unfunded liabilities incurred by such benefit plans, which amount could be material.
Natural disasters or acts of terrorism, including cyber terrorism, could disrupt services.
Hurricanes, storms, earthquakes, drought, floods or other natural disasters or acts of terrorism may result in reduced revenues. Disasters may also cause economic dislocations throughout the country. Acts of cyber terrorism involve the premeditated use of disruptive activities, or the threat thereof, involving computers and/or networks, with the intention to cause harm or further social, ideological, religious, political or similar objectives. The occurrence of acts of cyber terrorism such as website defacement, denial of automated payment services, sabotage of our proprietary on-demand technology or the use of electronic social media to disseminate unfounded or otherwise harmful allegations to our reputation, could have a material adverse effect on our business. In addition, terrorist attacks have resulted in, and may continue to result in, increased government regulation of airlines and airport facilities, including imposition of minimum distances between parking facilities and terminals, resulting in the elimination of currently managed parking facilities. We derive a significant percentage of our gross profit from parking facilities and parking related services in and around airports. The Federal Aviation Administration generally prohibits parking within 300 feet of airport terminals during periods of heightened security. While the prohibition is not currently in effect, there can be no assurance that this governmental prohibition will not again be reinstated. The existing regulations governing parking within 300 feet of airport terminals or future regulations may prevent us from using certain parking spaces. Reductions in the number of parking spaces and air travelers may reduce our revenue and cash flow for both our leased facilities and those facilities we operate under management contracts.
State and municipal government clients may sell or enter into long-term leases of parking-related assets to our competitors.
In order to raise additional revenue, a number of state and municipal governments have either sold or entered into long-term leases of public assets or may be contemplating such transactions. The assets that are the subject of such transactions have included government-owned parking garages located in downtown commercial districts and parking operations at airports. The sale or long-term leasing of such government-owned parking assets to our competitors or clients of our competitors could have a material adverse effect on our business, financial condition and results of operations.
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Table of Contents
Uncertainty in the credit markets may negatively impact our ability to collect receivables on a timely basis and our cash flow. The U.S. and global economies and the financial and credit markets continue to experience slow growth, and there continues to be
diminished liquidity and credit availability in certain sectors. In addition, the tightening of credit in financial markets may adversely affect the ability of our clients to obtain financing, which could adversely impact our ability to collect amounts due from such clients or result in a decrease, or cancellation, of our services under our client contracts. Declines in our ability to collect receivables or in the level of client spending could adversely affect the results of our operations and our liquidity.
Our ability to expand our business will be dependent upon the availability of adequate capital.
The rate of our expansion will depend in part on the availability of adequate capital, which in turn will depend in large part on cash flow generated by our business and the availability of equity and debt capital. In addition, the credit facilities Standard Parking anticipates entering into in conjunction with the merger contain provisions that restrict our ability to incur additional indebtedness and/or make substantial investments or acquisitions. As a result, we cannot assure you that we will be able to finance our current growth strategy.
The sureties for our performance bond program may elect not to provide us with new or renewal performance bonds for any reason.
As is customary in the industry, a surety provider can refuse to provide a bond principal with new or renewal surety bonds. If any existing or future surety provider refuses to provide us with surety bonds, either generally or because we are unwilling or unable to post collateral at levels sufficient to satisfy the surety’s requirements, there can be no assurance that we would be able to find alternate providers on acceptable terms, or at all. Our inability to provide surety bonds could also result in the loss of existing contracts. Failure to find a provider of surety bonds, and our resulting inability to bid for new contracts or renew existing contracts, could have a material adverse effect on our business and financial condition.
Federal health care reform legislation may adversely affect our business and results of operations.
In March 2010, the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010 were signed into law in the U.S. (collectively, the “ Health Care Reform Laws ”). The Health Care Reform Laws include a large number of health-related provisions that become effective over the next four years, including requiring most individuals to have health insurance and establishing new regulations on health plans. Although the Health Care Reform Laws do not mandate that employers offer health insurance, beginning in 2014, penalties will be assessed on large employers who do not offer health insurance that meets certain affordability or benefit requirements. Providing such additional health insurance benefits to our employees, or the payment of penalties if such coverage is not provided, would increase our expenses. If we are unable to raise the rates we charge our clients to cover this expense, such increases in expense could reduce our operating profit.
In addition, under the Health Care Reform Laws, employers will have to file a significant amount of additional information with the
Internal Revenue Service and will have to develop systems and processes to track requisite information. We will have to modify our current systems, which could increase our general and administrative expense.
We do not maintain insurance coverage for all possible risks.
We maintain a comprehensive portfolio of insurance policies to help protect us against loss or damage incurred from a wide variety of insurable risks. Each year, we review with our professional insurance advisers whether the insurance policies and associated coverages that we maintain are sufficient to adequately protect us from the various types of risk to which we are exposed in the ordinary course of business. That analysis takes into account various pertinent factors such as the likelihood that we would incur a material loss from any given risk, as well as the cost of obtaining insurance coverage against any such risk. While we believe that we maintain a comprehensive portfolio of insurance that is consistent with customary business practices and adequately protects us from the risks that we typically face in the
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Table of Contents ordinary course of business, there can be no assurance that we may not sustain a material loss for which we do not maintain any, or adequate, insurance coverage. Item 2. Unregistered Sales of Equity and Use of Proceeds
There were no stock repurchases for the nine months ended September 30, 2012.
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Table of Contents
Item 6. Exhibits
INDEX TO EXHIBITS
* Filed herewith ** Furnished herewith (†) Pursuant to Rule 406T of Regulation S-T, the XBRL related information in Exhibit 101 to this Quarterly Report on Form 10-Q shall not be deemed to be “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liability of that section, and shall not be deemed part of a registration statement, prospectus or other document filed under the Securities Act or the Exchange Act, except as shall be expressly set forth by specific reference in such filings.
47
Exhibit Number
Description 10.1*
Asset Preservation Stipulation and Order dated September 26, 2012 among the Company, KCPC Holdings, Inc. and Central Parking Corporation and the Antitrust Division of the United States Department of Justice.
10.2*
Proposed Final Judgment dated September 26, 2012 among the Company, KCPC Holdings, Inc. and Central Parking Corporation and the Antitrust Division of the United States Department of Justice.
10.3*
Credit Agreement, dated as of October 2, 2012, by and among the Company, Bank of America, N.A., as administrative agent, Wells Fargo Bank, N.A. and JP Morgan Chase Bank, N.A., as co-syndication agents, U.S. Bank National Association, First Hawaiian Bank and General Electric Capital Corporation, as co-documentation agents, Merrill Lynch, Pierce, Fenner & Smith Inc., Wells Fargo Securities, LLC and J.P. Morgan Securities LLC, as joint lead arrangers and joint book managers, and the lenders party thereto.
10.4*
Confirmation of Interest Rate Swap Transaction, dated as of October 25, 2012, between the Company and Bank of America, N.A.
10.5*
Confirmation of Interest Rate Swap Transaction, dated as of October 25, 2012, between the Company and JPMorgan Chase Bank, N.A.
10.6*
Confirmation of Interest Rate Swap Transaction, dated as of October 25, 2012, between the Company and PNC Bank, N.A.
10.7* Employment Agreement, dated as of September 10, 2012, between the Company and William Bodenhamer.
10.8*
Employment Agreement, dated as of September 10, 2012, between the Company and Daniel Huberty.
10.9* Employment Agreement, dated as of September 10, 2012, between the Company and Rob Toy.
31.1*
Section 302 Certification dated November 9, 2012 for James A. Wilhelm, Director, President and Chief Executive Officer (Principal Executive Officer).
31.2*
Section 302 Certification dated November 9, 2012 for G. Marc Baumann, Chief Financial Officer, Treasurer & President of Urban Operations (Principal Financial Officer).
31.3*
Section 302 Certification dated November 9, 2012 for Daniel R. Meyer, Senior Vice President, Corporate Controller and Assistant Treasurer (Principal Accounting Officer).
32.1**
Certification pursuant to 18 USC Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, dated November 9, 2012.
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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STANDARD PARKING CORPORATION
Dated: November 9, 2012
By: /s/ JAMES A. WILHELM
James A. Wilhelm
Director, President and Chief Executive Officer
(Principal Executive Officer)
Dated: November 9, 2012
By: /s/ G. MARC BAUMANN
G. Marc Baumann
Chief Financial Officer, Treasurer & President of Urban Operations
(Principal Financial Officer)
Dated: November 9, 2012
By: /s/ DANIEL R. MEYER
Daniel R. Meyer
Senior Vice President,
Corporate Controller and Assistant Treasurer
(Principal Accounting Officer and Duly
Authorized Officer)
Exhibit 10.1
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ASSET PRESERVATION STIPULATION AND ORDER
It is hereby stipulated and agreed by and between the undersigned parties, subject to approval and entry by the Court, that:
I. DEFINITIONS
As used in this Asset Preservation Stipulation and Order (“Stipulation and Order”):
A. “Acquirer” or “Acquirers” mean the entity or entities to whom the Defendants divest the Parking Facilities, or who succeed to the Defendants’ interests in any Parking Facility Agreement that is transferred pursuant to the proposed Final Judgment.
B. “Standard” means Defendant Standard Parking Corporation, a Delaware corporation, with its headquarters in Chicago, Illinois,
and includes its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, joint ventures, directors, officers, managers, agents, and employees.
)
UNITED STATES OF AMERICA, )
)
Plaintiff, ) CASE NO. 12 - CV - 1598
)
v. ) JUDGE: Richard J. Leon
)
STANDARD PARKING CORPORATION, ) FILED: KCPC HOLDINGS, INC., and )
CENTRAL PARKING CORPORATION, )
)
)
Defendants. )
)
)
C. “Central” means Defendant KCPC Holdings, Inc., a Delaware corporation, with its headquarters in Mt. Kisco, New York,
together with its wholly owned subsidiary, Defendant Central Parking Corporation, a Tennessee corporation with its headquarters in Nashville, Tennessee, and includes their successors and assigns, and their subsidiaries, divisions, groups, affiliates, partnerships, joint ventures, directors, officers, managers, agents, and employees.
D. “Parking Facility Agreements” means all agreements, whether leases, management agreements or otherwise, related to the
operation or management of off-street parking facilities as listed in Schedule A attached to the proposed Final Judgment, between or among the Defendants and the owners or agents of the owners of the properties listed in Schedule A.
E. “Parking Facilities” means all Defendants’ interests in the properties listed in Schedule A of the proposed Final Judgment,
including the Parking Facility Agreements for those properties, and all tangible and intangible assets used by Defendants primarily in connection with those properties, including, but not limited to: employment, customer or other contracts; equipment and other property; the customer lists, business accounts and records, and market research data for the individual Parking Facilities; manuals and instructions provided to employees; and other physical assets, associated with the properties; but not assets, such as centralized systems software, that are located outside the Parking Facilities and do not relate primarily to the properties listed on Schedule A.
F. “Transaction” means the merger and acquisition contemplated by the Agreement and Plan of Merger dated as of February 28,
2012, by and among KCPC Holdings, Inc., Standard Parking Corporation, Hermitage Merger Sub, Inc. and the Stockholders’ Representative. 2
II. OBJECTIVES
The proposed Final Judgment filed in this case is meant to ensure Defendants’ prompt divestiture of the Parking Facilities for the
purpose of maintaining competition in the sale of off-street parking services in the geographic markets specified in the Complaint, in order to remedy the effects that the United States alleges would otherwise result from Standard’s acquisition of Central. This Asset Preservation Stipulation and Order ensures that until the divestitures required by the proposed Final Judgment have been accomplished, the Parking Facilities remain as economically viable, competitive, and ongoing providers of off-street parking services; that Defendants will preserve and maintain the Parking Facilities; and that the Parking Facilities will be able to be used effectively by an Acquirer to compete in the provision of off-street parking services.
III. JURISDICTION AND VENUE
The Court has jurisdiction over the subject matter of this action and over each of the parties hereto. Defendants waive service of
summons on the Complaint, and agree that venue of this action is proper in the United States District Court for the District of Columbia.
IV. COMPLIANCE WITH AND ENTRY OF THE PROPOSED FINAL JUDGMENT
A. The parties stipulate that a Final Judgment in the form attached as Exhibit A may be filed with and entered by the Court upon the
motion of any party or upon the Court’s own motion, at any time after compliance with the requirements of the Antitrust Procedures and Penalties Act (APPA), 15 U.S.C. § 16, and without further notice to any party or other proceedings, provided that the United States has not withdrawn its consent, which it may do at any time before the entry of the proposed Final Judgment by serving notice thereof on the Defendants and by filing that notice with the Court. Defendants agree to arrange, at their
3
expense, publication as quickly as possible of the newspaper notice required by the APPA, which shall be drafted by the United States in its sole discretion. The publication shall be arranged no later than three business days after Defendants’ receipt from the United States of the text of the notice and the identity of the newspaper within which the publication shall be made. Defendants shall promptly send to the United States (1) confirmation that publication of the newspaper notice has been arranged, and (2) the certification of the publication prepared by the newspaper within which the notice was published.
B. Defendants shall abide by and comply with the provisions of the proposed Final Judgment pending entry of the Final Judgment by the Court, or until expiration of time for all appeals of any Court ruling declining entry of the proposed Final Judgment, and shall, from the date of the signing of this Stipulation by the parties, comply with all of the terms and provisions of the proposed Final Judgment as though the same were in full force and effect as an order of the Court.
C. Defendants shall not consummate the transaction sought to be enjoined by the Complaint herein before the Court has signed
this Stipulation and Order. D. This Asset Preservation Stipulation and Order shall apply with equal force and effect to any amended proposed Final Judgment
agreed upon in writing by the parties and submitted to the Court. E. In the event (1) the United States has withdrawn its consent, as provided in Paragraph IV.A above, or (2) the proposed Final
Judgment is not entered pursuant to this Stipulation and Order, the time has expired for all appeals of any Court ruling declining entry of the proposed Final Judgment, and the Court has not otherwise ordered continued compliance with the terms and provisions of the proposed Final Judgment, then the parties are released from
4
all further obligations under this Asset Preservation Stipulation and Order, and the making of this Asset Preservation Stipulation and Order shall be without prejudice to any party in this or any other proceeding.
F. Defendants represent that the divestitures ordered in the proposed Final Judgment can and will be made expeditiously, and that Defendants will later raise no claim of mistake, hardship or difficulty of compliance as grounds for asking the Court to modify any of the provisions contained therein.
V. PRESERVATION OF THE DIVESTITURE ASSETS
Until the divestitures required by the proposed Final Judgment have been accomplished: A. Defendants shall preserve, maintain, and continue to operate the Parking Facilities as ongoing, economically viable, and
competitive providers of off-street parking services. Defendants shall take all steps necessary to preserve and maintain the value and goodwill of the Parking Facilities. Within thirty calendar days after the entry of the Asset Preservation Stipulation and Order, Defendants will inform the United States of the steps Defendants have taken to comply with this Asset Preservation Stipulation and Order.
B. Defendants shall provide sufficient working capital and lines and sources of credit to continue to maintain the Parking
Facilities as economically viable, competitive, and ongoing providers of off-street parking services. C. Defendants shall not, except as part of a divestiture approved by the United States in accordance with the proposed Final
Judgment, remove, sell, lease, assign, transfer, destroy, pledge, or otherwise dispose of any of the Parking Facilities. D. Defendants’ employees whose operation, development, or sales duties are primarily related to the Parking Facilities shall not
be terminated except for cause, or reassigned 5
to other areas within the company, except for transfer bids initiated by employees pursuant to Defendants’ regular, established job posting policy. Defendants shall provide the United States with ten calendar days’ notice of such transfer.
E. Defendants shall use all reasonable efforts to maintain the sales and revenues of the Parking Facilities, and shall maintain at
actual 2012 levels or previously approved levels for 2013, whichever are higher, all operational, promotional, advertising, sales, technical, customer-service, and marketing support for the Parking Facilities.
F. Defendants shall provide such support services for the Parking Facilities as the Parking Facilities require to operate as
economically viable, competitive, and ongoing providers of off-street parking services. These support services may include federal, state and local municipal regulatory compliance; human resources; legal; finance; software and computer operations support; and such other services as are required to operate the Parking Facilities.
G. Defendants shall preserve the existing relationships with each off-street parking services customer, with the owners of the
underlying properties and agents of those owners, and with others having business relations with any of the Parking Facilities, in accordance with current practice.
H. Defendants shall maintain, in accordance with sound accounting principles, accurate and complete financial ledgers, books
and records that report on a periodic basis, such as the last business day of every month, consistent with past practices, the assets, liabilities, expenses, revenues, and income attributable to the Parking Facilities.
I. Defendants shall take no action that would jeopardize, delay, or impede the sale of the Parking Facilities to an Acquirer
acceptable to the United States in its sole discretion. 6
J. Subject to the approval of the United States, Defendants shall each appoint at their expense a person or persons who will be
responsible for monitoring the Parking Facilities and ensuring Defendants’ compliance with the proposed Final Judgment and this Stipulation. In the event such persons are unable to perform their duties, Defendants shall appoint, subject to the approval of the United States, replacements within ten working days. Should Defendants fail to appoint replacements acceptable to the United States within this time period, the United States shall appoint replacements to serve at Defendants’ expense.
K. Defendants shall take no action that would interfere with the ability of any trustee appointed pursuant to the proposed Final
Judgment to complete the divestitures pursuant to the proposed Final Judgment to an Acquirer acceptable to the United States.
L. Defendants’ obligations under this Section V are qualified to the limited extent provided for under Paragraph IV.K of the proposed Final Judgment, permitting Defendants under specified circumstances to accomplish divestitures of the Parking Facilities by terminating Parking Facility Agreements, or by allowing those Agreements to expire.
VI. DURATION OF
ASSET PRESERVATION OBLIGATIONS
Defendants’ obligations under Section V of this Asset Preservation Stipulation and Order shall remain in effect until (1) consummation of the divestitures required by the proposed Final Judgment, or (2) further order of the Court. If the United States voluntarily dismisses the Complaint in this matter, Defendants are released from all further obligations under the Stipulation and Order.
7
ORDER
IT IS SO ORDERED by the Court, this 1 day of October, 2012.
8
Dated:
Respectfully submitted,
FOR DEFENDANT STANDARD
PARKING CORPORATION
FOR PLAINTIFF
UNITED STATES OF AMERICA
/s/ James J. Calder /s/ Carl Willner
James J. Calder ( applied for pro hac vice admission )
Carl Willner (D.C. Bar No. 412841)
Katten Muchin Rosenman LLP United States Department of Justice
575 Madison Avenue
Antitrust Division
New York, NY 10022-2585 Telecommunications and Media
Tel. (212)-940-6460
Enforcement Section
450 Fifth Street, NW, Suite 7000
Washington, DC 20530
/s/ Claudia Callaway Tel: (202)-514-5813
Claudia Callaway (D.C. Bar No. 442237)
Kattin Muchin Rosenman LLP
2900 K Street, N.W.
Suite 200
Washington, D.C. 20007-5118
Tel: (212) 625-3590
FOR DEFENDANTS
KCPC HOLDINGS, INC. AND
CENTRAL PARKING CORPORATION
/s/ Leon B. Greenfield
Leon B. Greenfield (D.C. Bar No. 440795)
Wilmer Cutler Pickering Hale and Dorr LLP
1875 Pennsylvania Avenue, NW
Washington, DC 20006
Tel: (202)-663-6972
/s/ Richard J. Leon
United States District Judge
st
Exhibit 10.2
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
PROPOSED FINAL JUDGMENT
WHEREAS, Plaintiff, United States of America, filed its Complaint on September 26, 2012, the United States and Defendants Standard
Parking Corporation (“Standard”) and KCPC Holdings, Inc., and Central Parking Corporation, a wholly owned subsidiary of KCPC Holdings, Inc. (both together and separately, “Central”), by their respective attorneys, having consented to the entry of this Final Judgment without trial or adjudication of any issue of fact or law, and without this Final Judgment constituting any evidence against or an admission by any party regarding any issue of law or fact;
AND WHEREAS, Defendants agree to be bound by the provisions of this Final Judgment pending its approval by the Court;
)
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) CASE NO.
)
STANDARD PARKING CORPORATION, ) JUDGE : KCPC HOLDINGS, INC., and )
CENTRAL PARKING CORPORATION, ) FILED:
)
Defendants. )
)
AND WHEREAS, the essence of this Final Judgment is the prompt and certain divestiture of parking facilities, including agreements
concerning the operation of such facilities, by the Defendants to ensure that competition is not substantially lessened; AND WHEREAS, the United States requires Defendants to make certain divestitures for the purpose of remedying the loss of
competition alleged in the Complaint; AND WHEREAS, Defendants have represented to the United States that the divestitures required below can and will be made and that
Defendants will later raise no claims of hardship or difficulty as grounds for asking the Court to modify any of the divestiture provisions contained below;
NOW, THEREFORE, before any testimony is taken, without trial or adjudication of any issue of fact or law, and upon consent of the
parties, it is ORDERED, ADJUDGED, AND DECREED: I. JURISDICTION
This Court has jurisdiction over the subject matter of and each of the parties to this action. The Complaint states a claim upon which relief may be granted against Defendants under Section 7 of the Clayton Act, as amended, 15 U.S.C. § 18. II. DEFINITIONS
As used in this Final Judgment: 2
A. “Acquirer” or “Acquirers” mean the entity or entities to whom the Defendants divest the Parking Facilities, or who succeed to
the Defendants’ interests in any Parking Facility Agreement that is transferred pursuant to this Final Judgment.
B. “Standard” means Defendant Standard Parking Corporation, a Delaware corporation, with its headquarters in Chicago, Illinois, and includes its successors and assigns, and its subsidiaries, divisions, groups, affiliates, partnerships, joint ventures, directors, officers, managers, agents, and employees.
C. “Central” means Defendant KCPC Holdings, Inc., a Delaware corporation, with its headquarters in Mt. Kisco, New York, together with its wholly owned subsidiary, Defendant Central Parking Corporation, a Tennessee corporation with its headquarters in Nashville, Tennessee, and includes their successors and assigns, and their subsidiaries, divisions, groups, affiliates, partnerships, joint ventures, directors, officers, managers, agents, and employees.
D. “Parking Facility Agreements” means all agreements, whether leases, management agreements or otherwise, related to the operation or management of off-street parking facilities as listed in Schedule A below, between or among the Defendants and the owners or agents of the owners of the properties listed in Schedule A.
E. “Parking Facilities” means all Defendants’ interests in the properties listed in Schedule A, including the Parking Facility Agreements for those properties, and all tangible and intangible assets used by Defendants primarily in connection with those properties, including, but not limited to: employment, customer or other contracts; equipment and other property; the customer lists, business accounts and records, and market research data for the individual Parking Facilities; manuals and instructions provided to employees; and other physical assets,
3
associated with the properties; but not assets, such as centralized systems software, that are located outside the Parking Facilities and do not relate primarily to the properties listed on Schedule A.
F. “Divest” or “Divestiture” means the transfer, sale or assignment of Parking Facilities. III. APPLICABILITY
A. This Final Judgment applies to the Defendants and all other persons in active concert or participation with any of them who receive actual notice of this Final Judgment by personal service or otherwise.
B. If, prior to complying with Section IV, Section V, and Section VI of this Final Judgment, either Defendant sells all or substantially all its assets or lesser business units that include the Parking Facilities, it shall require the purchaser or purchasers, as a condition of the sale, to be bound by the provisions of this Final Judgment; however, Defendants need not obtain such an agreement from an Acquirer of the assets divested pursuant to this Final Judgment. IV. DIVESTITURES
A. Defendants are ordered and directed, within ninety (90) calendar days after the filing of the Complaint in this matter, or within five (5) days after notice of entry of the Final Judgment by the Court, whichever is later, to divest all their interests in the Parking Facilities in a manner consistent with this Final Judgment to an Acquirer or Acquirers acceptable to the
4
United States in its sole discretion. The requirement to divest to an Acquirer or Acquirers is subject to the qualifications specified in Paragraph IV.K below.
B. In accomplishing the divestitures ordered by this Final Judgment, Defendants promptly shall make known, by usual and customary means, the availability of the Parking Facilities to be divested. Defendants shall inform any person making an inquiry that the divestiture is being made pursuant to this Final Judgment and provide such person with a copy of this Final Judgment. Defendants shall also offer to furnish to all prospective Acquirers, subject to customary confidentiality assurances, all information and documents in Defendants’ possession, custody or control relating to the Parking Facilities customarily provided in a due diligence process, except such information or documents subject to attorney-client privilege or work-product doctrine. Defendants shall make available such information to the United States at the same time that such information is made available to any other person.
C. Defendants shall permit prospective Acquirers of the Parking Facilities to have reasonable access to personnel and to any and all environmental, zoning, building, and other permit documents and information, and to make inspection of the Parking Facilities and of any and all financial, operational, or other documents and information customarily provided as part of a due diligence process.
D. Defendants shall use their best efforts to accomplish the divestitures ordered by this Final Judgment as expeditiously as possible. The United States, in its sole discretion, may agree to one or more extensions of the time period for divestiture outlined in Paragraph IV.A not to exceed ninety (90) calendar days in total, and shall inform the Court in such circumstances.
5
E. Defendants shall provide the Acquirers and the United States information concerning the personnel involved in the operation of
the Parking Facilities to enable the Acquirer to make offers of employment. Defendants shall not interfere with any negotiations by any Acquirer to employ any Standard or Central (or former Standard or Central) employee whose primary responsibility concerns any parking services business connected with the Parking Facilities. Defendants shall remove any impediments that may deter these employees from accepting such employment, including but not limited to, non-compete agreements. Defendants will not seek to enforce such non-compete agreements, nor will they seek to enforce any non-compete agreements against any employee whose responsibilities at a local or regional level include any Parking Facility and whose employment terminates within six (6) months after the date the transaction between the Defendants is completed.
F. Defendants shall warrant to the Acquirer(s) that each Parking Facility will be operational on the date of divestiture.
G. Defendants shall not take any action, direct or indirect, that will impede in any way the operation of the Parking Facilities, or take any action, direct or indirect, that would impede the divestiture of any Parking Facility.
H. Defendants shall warrant to Acquirer(s) that they did not cause during the term of their operation or management of the Parking
Facility any condition that would constitute a material defect in the environmental, zoning, or other permit pertaining to the operation of the Parking Facility, and that following the sale of the Parking Facility, Defendants will not undertake, directly or indirectly, any challenges to the environmental, zoning, or other permits relating to the operation of the Parking Facility.
6
I. Defendants may not enter into any agreement to acquire, lease or operate, nor may they in any other manner acquire an interest
in ownership or management of, any Parking Facility for the term of this Final Judgment, except that after three (3) years from the date that a Parking Facility is divested, nothing in this Final Judgment would prevent Defendants from acquiring a Parking Facility Agreement directly from the owner of such Parking Facility or the owner’s agent through a process that does not involve a transaction with the operator of such Parking Facility.
J. Unless the United States otherwise consents in writing, and subject to the qualification specified in Paragraph IV.K, the divestitures pursuant to Section IV, or by the trustee appointed pursuant to Section VI, shall include all of the Defendants’ interests in the Parking Facilities, and be accomplished by divesting the Parking Facilities to an Acquirer or Acquirers in such a way as to satisfy the United States, in its sole discretion, that the Parking Facilities can and will be used by Acquirers as viable ongoing off-street parking services businesses, and the divestitures will remedy the harm alleged in the Complaint. The divestitures, whether pursuant to Section IV or Section VI of this Final Judgment, shall: (1) be made to an Acquirer or Acquirers that, in the United States’ sole judgment, has the intent and capability (including the necessary managerial, operational, and financial capability) of competing effectively with the defendants in providing off-street parking services; and (2) shall be accomplished so as to satisfy the United States, in its sole discretion, that none of the terms of any agreement between Acquirers and Defendants gives Defendants the ability to raise unreasonably the Acquirers’ costs, to lower the Acquirers’ efficiency, or otherwise to interfere in the ability of Acquirers to compete effectively.
7
K. As an alternative to divestiture to a specific Acquirer or Acquirers, Defendants may, if contractually permitted to do so,
accomplish divestitures by either: 1) terminating Parking Facility Agreements; or 2) allowing those Agreements to expire without renewal. All such divestitures must be preceded by notice to the affected facilities owners, and/or other persons with whom Defendants are in contractual relationships to operate the Parking Facilities, not less than sixty (60) days before the divestiture, or, if longer, such notice as is required by the applicable Parking Facility Agreements. With respect to all such divestitures, Defendants must comply with Paragraphs D, E, F, G, H, and I of Section IV. Divestitures accomplished under this paragraph must be completed in the time frame set forth in Paragraph IV.A. In addition, Defendants must comply with Paragraphs IV.B and IV.C to the extent that Defendants must make available the specified documents and information to every prospective successor in operation of the Parking Facilities if so requested by the owners of those properties, or by the owner’s agents. At the time they give such notice, Defendants shall provide those owners and agents a copy of this Final Judgment, and inform them in writing of the applicable parts of Paragraphs IV.B and IV.C.
L. Within thirty (30) calendar days of the filing of the Complaint in this matter and every thirty (30) calendar days thereafter until the divestitures have been completed pursuant to Section IV or VI of this Final Judgment, Defendants shall deliver to the United States an affidavit as to the fact and manner of compliance with Sections IV, V, and VI of this Final Judgment. Each such affidavit shall describe in detail all efforts to accomplish the divestitures, including: 1) the name, address, and telephone number of each person who, during the preceding thirty (30) calendar days, made an offer to acquire, expressed an interest in acquiring, entered
8
into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Parking Facilities; 2) a description of all communications with any such person during that period; and 3) a description of all other efforts Defendants have taken to solicit an Acquirer or Acquirers for any and all Parking Facilities, and to provide required information to prospective Acquirers, including the limitations, if any, on such information. Assuming that the information set forth in the affidavit is true and complete, any objection by the United States to information provided by Defendants, including limitations on information provided by Defendants, shall be made within fourteen (14) days of receipt of such affidavit.
M. Beginning with the second affidavit delivered to the United States on the sixtieth day from the filing of the Complaint, and thereafter in every subsequent affidavit, Defendants shall identify any Parking Facilities that Defendants anticipate they cannot practically divest within thirty (30) days of the submission of the affidavit, and the basis for that belief.
N. For any Parking Facility not divested (and for which no definitive agreement to divest exists) within sixty (60) days of the filing of the Complaint, the United States shall have the right to require the Defendants to propose, within seven (7) days of receiving notice, alternative divestitures sufficient to preserve competition. The United States may in its sole discretion accept or reject the alternative proposal. If the alternative is accepted, the alternative divested facility or facilities shall become a Parking Facility in place of the relevant Schedule A Parking Facility for all purposes under this Final Judgment, and the United States shall inform the Court of the change in a written report. If the proposed alternative is not accepted by the United States the Defendants must propose within five (5) days other alternative divestitures until an alternative acceptable to the United States is identified. The requirements of this
9
paragraph will not apply to any Parking Facility for which divestitures will be accomplished under Paragraph IV.K.
O. Defendants shall keep records of all efforts made to preserve and divest each Parking Facility until one year after all the divestitures have been completed. V. NOTICE OF PROPOSED DIVESTITURES
A. Within two (2) business days following execution of a definitive divestiture agreement, contingent upon compliance with the terms of this Final Judgment, to effect, in whole or in part, any proposed divestiture pursuant to Section IV or VI of this Final Judgment, Defendants or the trustee, whichever is then responsible for effecting the divestiture, shall notify the United States of the proposed divestiture. If the trustee is responsible, it shall similarly notify Defendants. The notice shall set forth the details of the proposed divestiture and the name, address, and telephone number of each person not previously identified who offered to, or expressed an interest in or a desire to, acquire any management or leasehold interest in the Parking Facility to be divested, together with full details of same.
B. Within fifteen (15) calendar days of receipt by the United States of such notice, the United States may request from Defendants, the proposed Acquirer or Acquirers, any third party, or the trustee, additional information concerning the proposed divestiture and the proposed Acquirer or Acquirers, or any other potential Acquirer. Defendants and the trustee shall furnish any additional information requested within fifteen (15) calendar days of the receipt of the request, unless the parties shall otherwise agree.
10
C. Within thirty (30) calendar days after receipt of the notice, or within twenty (20) calendar days after the United States has been
provided the additional information requested from Defendants, the proposed Acquirer or Acquirers, any third party, or the trustee, whichever is later, the United States shall provide written notice to Defendants and the trustee, if there is one, stating whether or not it objects to the proposed divestiture. If the United States provides written notice that it does not object, then the divestiture may be consummated, subject only to Defendants’ limited right to object to the sale under Paragraph VI.C of this Final Judgment. Absent written notice that the United States does not object to the proposed divestiture, or upon objection by the United States, a proposed divestiture under Section IV or Section VI may not be consummated. Upon objection by Defendants under the provision in Paragraph VI.C, a divestiture proposed under Section VI shall not be consummated unless approved by the Court. VI. APPOINTMENT OF TRUSTEE
A. If Defendants have not divested each of the Parking Facilities by the time and in the manner specified in Section IV of this Final Judgment, Defendants shall notify the United States of that fact in writing at the time the period for the relevant divestiture expires, identifying the Parking Facility or Facilities that have not been divested. Upon application of the United States, the Court shall appoint a trustee selected by the United States and approved by the Court to effect the divestiture of any such Parking Facilities, as designated by the United States.
B. After the appointment of a trustee becomes effective, only the trustee shall have the right to divest the Parking Facilities for which the divestiture period has expired. The trustee shall have the power and authority to accomplish any and all divestitures of Parking Facilities to
11
an Acquirer or Acquirers acceptable to the United States at such price and on such terms as are then obtainable upon reasonable effort by the trustee, subject to the provisions of Sections IV, V, and VI of this Final Judgment, and shall have such other powers as the Court shall deem appropriate. Subject to Paragraph VI.C of this Final Judgment, the trustee may hire at the cost and expense of the Defendants any investment bankers, attorneys, or other agents reasonably necessary in the judgment of the trustee to assist in the divestitures or terminations, and such professionals and agents shall be accountable solely to the trustee. The trustee shall seek to accomplish the divestitures at the earliest possible time.
C. Defendants shall not object to a divestiture by the trustee on any ground other than the trustee’s malfeasance. Any such objections by Defendants must be conveyed in writing to the United States and the trustee within ten (10) calendar days after the trustee has provided the notice required under Section V of this Final Judgment.
D. The trustee shall serve at the cost and expense of Defendants, on such terms and conditions as the United States approves. The trustee shall account for all monies derived from the divestiture of each Parking Facility divested by the trustee. The trustee shall also account for all costs and expenses incurred to accomplish the divestitures. After approval by the Court of the trustee’s accounting, including any yet unpaid fees for its services and those of any professionals and agents retained by the trustee, any money remaining shall be paid to Defendants, or if the trustee’s fees and costs exceed the monies derived from the divestitures the Defendants shall pay the difference, and the trust shall then be terminated. The compensation of the trustee and of any professionals and agents retained by the trustee shall be reasonable in light of the value of the divested facility and based on a fee arrangement providing the trustee with an incentive based on
12
the price and terms of the divestiture, and the speed with which it is accomplished, timeliness being paramount.
E. Defendants shall use their best efforts to assist the trustee in accomplishing the required divestitures, including best efforts to effect all necessary regulatory approvals, and the consents of any owners or other persons whose consent may be needed for transfer of a Parking Facility Agreement. The trustee and any consultants, accountants, attorneys, and other persons retained by the trustee shall have full and complete access to the personnel, books, records, and facilities of the Parking Facilities to be divested, and Defendants shall develop financial or other information relevant to the businesses to be divested customarily provided in a due diligence process as the trustee may reasonably request, subject to customary confidentiality assurances. Defendants shall take no action to interfere with or impede the trustee’s accomplishment of the divestitures.
F. After its appointment, the trustee shall file monthly reports with the parties and the Court setting forth the trustee’s efforts to accomplish the divestitures ordered under this Final Judgment; provided, however, that to the extent such reports contain information that the trustee deems confidential, such reports shall not be filed in the public docket of the Court. Such reports shall include the name, address, and telephone number of each person who, during the preceding month, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Parking Facilities to be divested, and shall describe in detail each contact with any such person during that period. The trustee shall maintain full records of all efforts made to divest the Parking Facilities.
13
G. If the trustee has not accomplished any divestiture with which it is charged within six months after it has been authorized to
divest the relevant Parking Facility, the trustee thereupon shall promptly file with the Court a report setting forth (1) the trustee’s efforts to accomplish the required divestitures, (2) the reasons, in the trustee’s judgment, why the required divestitures have not been accomplished, and (3) the trustee’s recommendations; provided, however, that to the extent such reports contain information that the trustee deems confidential, such reports shall not be filed in the public docket of the Court. The trustee shall at the same time furnish such report to the parties, who shall each have the right to make additional recommendations consistent with the purpose of the trust. The Court shall enter thereafter such orders as it shall deem appropriate in order to carry out the purpose of the Final Judgment which may, if necessary, include extending the trust and the term of the trustee’s appointment by a period requested by the United States. VII. ASSET PRESERVATION
A. Until the divestitures required by this Final Judgment have been accomplished, Defendants shall take all steps necessary to comply with the Asset Preservation Stipulation and Order entered by this Court. Defendants shall take no action that would jeopardize the divestitures ordered by this Court. VIII. COMPLIANCE INSPECTION
A. For purposes of determining or securing compliance with the Final Judgment, or of determining whether the Final Judgment should be modified or vacated, and subject to any
14
legally recognized privilege, from time to time authorized representatives of the United States Department of Justice Antitrust Division (“Antitrust Division”), including consultants and other persons retained by the United States, shall, upon written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to Defendants, be permitted:
1. access during Defendants’ office hours to inspect and copy, or, at the option of the United States, to require Defendants to provide hard copy or electronic copies of, all books, ledgers, accounts, records, data and documents in the possession, custody or control of Defendants, relating to any matters contained in this Final Judgment; and 2. to interview, either informally or on the record, Defendants’ officers, employees, or agents, who may have their individual counsel present, regarding such matters. The interviews shall be subject to the reasonable convenience of the interviewee and without restraint or interference by Defendants.
B. Upon the written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division,
Defendants shall submit such written reports or respond to written interrogatories, under oath if requested, with respect to any of the matters contained in this Final Judgment as may be requested.
C. No information or documents obtained by the means provided in Paragraphs IV.L or Section VIII of this Final Judgment shall be divulged by a representative of the United States to any person other than an authorized representative of the Executive Branch of the United
15
States, except in the course of legal proceedings to which the United States is a party (including grand jury proceedings), or for the purpose of securing compliance with this Final Judgment, or as otherwise required by law.
D. If at the time information or documents are furnished by Defendants to the United States, Defendants represent and identify in writing the material in any such information or documents to which a claim of protection may be asserted under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure, and Defendants mark each pertinent page of such material, “Subject to claim of protection under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure,” then the United States shall give Defendants ten (10) calendar days notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding).
IX. RETENTION OF JURISDICTION
This Court retains jurisdiction to enable any party to this Final Judgment to apply to this Court at any time for such further orders and directions as may be necessary or appropriate to construe or carry out this Final Judgment, to modify any of its provisions, to enforce compliance, and to punish violations of its provisions. X. FINANCING
Defendants shall not finance all or any part of any divestiture made pursuant to Sections IV or VI of this Final Judgment.
16
XI. EXPIRATION OF FINAL JUDGMENT
Unless this Court grants an extension, this Final Judgment shall expire ten (10) years from the date of its entry. XII. PUBLIC INTEREST
Entry of this Final Judgment is in the public interest. The parties have complied with the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16, including making copies available to the public of this Final Judgment, the Competitive Impact Statement, and any comments thereon and the United States’s responses to comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest.
17
Dated
.
Court approval subject to procedures of Antitrust Procedures and Penalties Act, 15 U.S.C. § 16.
United States District Judge
SCHEDULE A
18
City Facility
Atlanta, GA Central Facility CP6 at 3390 Peachtree Rd. NE
Baltimore, MD
Standard Facility SP5 at 400-404 Park Ave. Bellevue, WA
Standard Facility SP7 at 600 106th Ave. NE
Standard Facility SP8 at NE 8th St. & 106th Ave. NE Boston, MA
Central Facility CP38 at 377 Commercial St.
Standard Facility SP2 at 660 Washington St. Bronx, NY
Central Facility CP4 at 70 East 162nd St. Charlotte, NC
Central Facility CP2 at 207 South Church
Central Facility CP5 at East West University, 501 E. Trade St.
Central Facility CP8 at Gateway Village Garage, 800 West Trade St.
Central Facility CP17 at 121 West Trade St. Chicago, IL
Central Facility CP12 at 172 W Madison St.
Central Facility CP14 at 540 N State St.
Central Facility CP15 at 333 N Dearborn St.
Central Facility CP27 at 816 N Clark St.
Central Facility CP28 at 938 W North Ave.
Central Facility CP29 at 1547 N Kingsbury St.
Standard Facility SP13 at 1101 S State St.
Standard Facility SP22 at 8 E 9th St.
Standard Facility SP73 at 640 W Washington St.
Standard Facility SP151 at 3134 N Clark St. Cleveland, OH
Central Facility CP1 at 708 St Clair Ave
Central Facility CP4 at 1801 East 12th St.
Central Facility CP5 at 750 Vincent Ave Columbus, OH
Central Facility CP2 at 55 E Long St.
Central Facility CP5 at 21 E State St.
Central Facility CP8 at 45 E Spring St.
Central Facility CP13 at 107 S High St.
19
Dallas, TX Central Facility CP15 at 400 N. Akard St.
Central Facility CP18 at 811-817 Elm St.
Standard Facility SP4 at 300 N Akard St.
Denver, CO
Central Facility CP4 at 1207 Cherokee St.
Central Facility CP10 at 1131 Lincoln St.
Central Facility CP13 at 1745 Sherman St.
Central Facility CP14 at 1550 Welton St.
Central Facility CP30 at 1735 Stout St.
Central Facility CP49 at El Jebel, 1750 Sherman St.
Central Facility CP58 at 1530 Cleveland Pl.
Standard Facility SP14 at 1221 Sherman St.
Standard Facility SP19 at 1820 California St.
Standard Facility SP22 at 1515 Arapahoe St.
Standard Facility SP25 at 1999 Broadway
Standard Facility SP29 at 621 17th St.
Standard Facility SP32 at 1899 Wynkoop St.
Standard Facility SP33 at 1825 Welton St.
Standard Facility SP36 at 1543 Wazee St.
Standard Facility SP39 at 1999 Broadway Fort Myers, FL
Central Facility CP1 at 1530 Heitman St. Fort Worth, TX
Central Facility CP4 at 110 W 7th St.
Central Facility CP6 at 910 Houston St.
Central Facility CP7 at 1011 Calhoun St.
Central Facility CP9 at 1123 Calhoun St.
Central Facility CP22 at 315 E 9th St.
Central Facility CP23 at 921 Calhoun St.
Central Facility CP24 at 1105 Calhoun St.
Central Facility CP25 at 1115 Calhoun St.
Central Facility CP26 at 1024 Monroe St. Hoboken, NJ
Central Facility CP7 at 50 Bloomfield St. Houston, TX
Central Facility CP17 at 1001 McKinney St.
Central Facility CP38 at 1300 Leeland Ave.
Central Facility CP81 at 1111 Main St.
Standard Facility SP26 at 611 Clay St. Kansas City, MO
Central Facility CP13 at 1100 Main St.
Central Facility CP15 at 117 W 9th St.
Central Facility CP30 at 920 Main St.
Standard Facility SP4 at 2300 Main St.
Standard Facility SP54 at 1221 Charlotte St.
Standard Facility SP56 at 1600 Baltimore Ave. Los Angeles, CA
Central Facility CP7 at 707 Wilshire Blvd.
Central Facility CP22 at 936 Maple Ave.
Central Facility CP27 at 905 Maple Ave.
Central Facility CP33 at 1019 S Broadway
Standard Facility SP5 at 7920 W Sunset Blvd.
Standard Facility SP12 at 5757 Wilshire Blvd.
20
Miami, FL (including Coral Gables, FL) Central Facility CP22 at 800 Brickell Ave.
Standard Facility SP28 at 2 Alhambra Plaza
Standard Facility SP30 at 2 Alhambra Plaza
Milwaukee, WI
Standard Facility SP6 at 1000 N Water St.
Standard Facility SP7 at 724 N 2nd St.
Standard Facility SP8 at 324 W Highland Ave.
OR
Central Facility C1 at 100 East Garage
Central Facility C9 at 1128 N 6 Street
Central Facility C13 at 1030 N 6 Street
Central Facility C22 at 330 E Kilbourn Minneapolis, MN
Central Facility CP7 at 80 South 8th St.
Central Facility CP11 at 425 Park Ave.
Central Facility CP12 at 400 South 3rd St.
Central Facility CP15 at 600 Hennepin Ave.
Central Facility CP18 at 102-120 First St. North Nashville, TN
Standard Facility SP1 at 158 4th Ave. N New Orleans, LA
Central Facility CP2 at 400 Elysian Fields Ave.
Central Facility CP8 at 1515 Poydras St.
Central Facility CP10 at 1555 Poydras St.
Central Facility CP14 at 222 Loyola Ave.
Central Facility CP16 at 1600 Cleveland Ave. Newark, NJ
Standard Facility SP1 at 42 Mulberry St.
Standard Facility SP2 at 42 Mulberry St. Philadelphia, PA
Central Facility CP11 at 1717 Arch St.
Central Facility CP13 at 1616 Sansom St.
Central Facility CP18 at 1815 John F Kennedy Blvd.
Central Facility CP23 at 1900 John F Kennedy Blvd. Phoenix, AR
Central Facility CP12 at 3300 N Central Ave. Rego Park, NY
Standard Facility SP4 at Rego Center I & II, 96-05 Queens Blvd.
Standard Facility SP5 at Rego Center I & II, 95-05 Queens Blvd. Richmond, VA
Central Facility CP4 at 100 E Marshall St.
Central Facility CP6 at S 4th St & E Main St.
Central Facility CP9 at N 8th St & E Marshall St.
Standard Facility SP9 at 1531 E Cary St. Sacramento, CA
Central Facility CP13 at RAS, 3161 L St. Tampa, FL
Central Facility CP13 at Hyatt Regency Tampa, Two Tampa City Center
Central Facility CP14 at 400 N Ashley Dr.
th
th
Exhibit 10.3
CONFIDENTIAL TREATMENT — REDACTED COPY
**CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND HAS BEEN FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST
UNDER 17 C.F.R. SECTIONS 24b-2, 200.80 (B)(4) AND 230.406.
CUSIP #: 853788AC1
CREDIT AGREEMENT
dated as of October 2, 2012
among
STANDARD PARKING CORPORATION,
as the Company,
THE VARIOUS FINANCIAL INSTITUTIONS PARTY HERETO, as Lenders,
BANK OF AMERICA, N.A. as
Administrative Agent, an Issuing Lender and Swing Line Lender,
WELLS FARGO BANK, N.A., as an Issuing Lender and Co-Syndication Agent
JPMORGAN CHASE BANK, N.A.,
as an Issuing Lender and Co-Syndication Agent
U.S. BANK NATIONAL ASSOCIATION FIRST HAWAIIAN BANK
36 SECTION 2. COMMITMENTS OF THE LENDERS; BORROWING, CONVERSION AND LETTER OF CREDIT PROCEDURES
37 2.1.
Commitments 37
2.2. Borrowing Procedures
38 2.3.
Letters of Credit 39
2.4. Swing Line Facility
48 2.5.
Commitments Several 52
2.6. Certain Conditions
52 2.7.
Cash Collateral 52
2.8. Defaulting Lender
53 SECTION 3. EVIDENCING OF LOANS
56 3.1.
Notes 56
3.2. Recordkeeping
56 SECTION 4. INTEREST
56 4.1.
Interest Rates 56
4.2. Interest Payment Dates
57 4.3.
Setting and Notice of LIBOR Rates 57
4.4. Computation of Interest
57 SECTION 5. FEES
58 5.1.
Non-Use Fee 58
5.2. Letter of Credit Fees
58 5.3.
Administrative Agent’s Fees 59
SECTION 6. INCREASE, REDUCTION OR TERMINATION OF THE REVOLVING COMMITMENT; PREPAYMENTS
59 6.1.
Increase, Reduction or Termination of the Revolving Commitment 59
6.2. Voluntary and Mandatory Repayments
61 6.3.
Manner of Repayments 63
6.4. Repayment
64 SECTION 7. MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES
65 7.1.
Making of Payments; Administrative Agent’s Clawback 65
7.2. Application of Certain Payments
67 7.3.
Due Date Extension 67
7.4. Setoff
67 7.5.
Proration of Payments 68
7.6. Taxes
68
ii
SECTION 8. INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS 71
8.1.
Increased Costs 71
8.2. Basis for Determining Interest Rate Inadequate or Unfair
73 8.3.
Changes in Law Rendering LIBOR Loans Unlawful 73
8.4. Funding Losses
74 8.5.
Right of Lenders to Fund through Other Offices 74
8.6. Discretion of Lenders as to Manner of Funding
74 8.7.
Mitigation of Circumstances; Replacement of Lenders 75
8.8. Conclusiveness of Statements; Survival of Provisions
76 SECTION 9. REPRESENTATIONS AND WARRANTIES
76 9.1.
Organization 76
9.2. Authorization; No Conflict
76 9.3.
Validity and Binding Nature 77
9.4. Financial Condition
77 9.5.
No Material Adverse Change 77
9.6. Litigation and Contingent Liabilities
77 9.7.
Ownership of Properties; Liens 78
9.8. Equity Ownership; Subsidiaries
78 9.9.
Pension Plans 78
9.10. Investment Company Act
79 9.11.
Regulation U 79
9.12. Taxes
79 9.13.
Solvency 79
9.14. Environmental Matters
80 9.15.
Insurance 80
9.16. Real Property
80 9.17.
Information 80
9.18. Intellectual Property
81 9.19.
[Reserved]. 81
9.20. Labor Matters
81 9.21.
No Default 81
9.22. Subordinated Debt
81 9.23.
Perfection of Security Interests 82
9.24. OFAC
82 9.25.
Compliance with Laws 82
SECTION 10. AFFIRMATIVE COVENANTS
82 10.1.
Reports, Certificates and Other Information 82
10.2. Books, Records and Inspections
86 10.3.
Maintenance of Property; Insurance 87
10.4. Compliance with Laws; Payment of Taxes and Liabilities
88 10.5.
Maintenance of Existence, etc 89
10.6. Use of Proceeds
89 10.7.
Employee Benefit Plans 89
10.8. Environmental Matters
90
iii
10.9. Pledged Assets; Further Assurances
90 SECTION 11. NEGATIVE COVENANTS
91 11.1.
Debt 91
11.2. Liens
93 11.3.
Restricted Payments 95
11.4. Mergers, Consolidations, Sales
96 11.5.
Modification of Organization Documents 99
11.6. Transactions with Affiliates
99 11.7.
[Reserved] 99
11.8. Inconsistent Agreements
99 11.9.
Business Activities; Issuance of Equity 100
11.10. Investments, Loans and Advances
100 11.11.
Restriction of Amendments to Certain Documents 102
11.12. Fiscal Year
102 11.13.
Financial Covenants 102
11.14. Repayment or Redemption of Debt; Cancellation of Debt
103 11.15.
Affiliate Amounts 103
11.16. Legal Name, State of Formation and Form of Entity
103 11.17.
Sanctions 104
11.18. Capital Expenditures
104 SECTION 12. EFFECTIVENESS; CONDITIONS OF LENDING, ETC
104 12.1.
Conditions of Initial Credit Extension 104
12.2. Conditions
108 SECTION 13. EVENTS OF DEFAULT AND THEIR EFFECT
109 13.1.
Events of Default 109
13.2. Effect of Event of Default
112 13.3.
Application of Funds 112
SECTION 14. THE AGENT
114 14.1.
Appointment and Authorization 114
14.2. Issuing Lenders
115 14.3.
Delegation of Duties 115
14.4. Exculpation of Agents
116 14.5.
Reliance by Agents 116
14.6. Notice of Default
117 14.7.
Credit Decision 117
14.8. Indemnification
118 14.9.
Agent in Individual Capacity 118
14.10. Successor Agent
119 14.11.
Collateral and Guaranty Matters 120
14.12. Administrative Agent May File Proofs of Claim
121 14.13.
Other Agents; Arrangers and Managers 122
14.14. Secured Bank Product Agreements and Secured Hedging Agreements
122 SECTION 15. GENERAL
123
iv
15.1. Waiver; Amendments
123 15.2.
Confirmations 125
15.3. Notices
125 15.4.
Computations 126
15.5. Costs and Expenses
126 15.6.
Assignments; Participations 127
15.7. [Reserved].
133 15.8.
GOVERNING LAW 133
15.9. Confidentiality
133 15.10.
Severability 134
15.11. Nature of Remedies
134 15.12.
Entire Agreement 134
15.13. Counterparts
134 15.14.
Successors and Assigns 135
15.15. Captions
135 15.16.
Indemnification 135
15.17. Nonliability of Lenders
137 15.18.
Forum Selection and Consent to Jurisdiction 137
15.19. Waiver of Jury Trial
138 15.20.
No Advisory or Fiduciary Responsibility 138
15.21. USA PATRIOT Act Notice
139 15.22.
Interest Rate Limitation 139
15.23. Survival of Representations and Warranties
140 15.24.
Payments Set Aside 140
v
ANNEXES ANNEX A
Lenders and Pro Rata Shares ANNEX B
Addresses for Notices
SCHEDULES SCHEDULE 1.1(a)
Competitors SCHEDULE 1.1(b)
Existing Letters of Credit SCHEDULE 1.1(c)
EBITDA SCHEDULE 9.8
Equity Ownership; Subsidiaries SCHEDULE 9.20
Labor Matters SCHEDULE 11.1
Debt Existing on the Closing Date SCHEDULE 11.2
Liens Existing on the Closing Date SCHEDULE 11.10
Investments Existing on the Closing Date SCHEDULE 11.15
Management Fees
EXHIBITS EXHIBIT A -1
Form of Revolving Note EXHIBIT A -2
Form of Swing Line Note EXHIBIT A -3
Form of Term Note EXHIBIT B
Form of Compliance Certificate EXHIBIT C
Form of Assignment and Assumption EXHIBIT D
Form of Loan Notice EXHIBIT E
Certain Calculations EXHIBIT F
Form of Administrative Questionnaire
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of October 2, 2012 (this “ Agreement ”) is entered into among STANDARD PARKING
CORPORATION (the “ Company ”), the Lenders (as defined herein), which, unless the context indicates otherwise, shall include BANK OF AMERICA, N.A. (in its individual capacity, together with its successors, “ Bank of America ”), as a Lender, as Swing Line Lender, as an Issuing Lender and as Administrative Agent, WELLS FARGO BANK, N.A. (in its individual capacity, together with its successors, “ Wells ”), as a Lender, as an Issuing Lender and as Co-Syndication Agent for the Lenders and JPMORGAN CHASE BANK, N.A. (in its individual capacity, together with its successors, “ JPM ”), as an Issuing Lender and as Co-Syndication Agent for the Lenders.
The Lenders have agreed to make available to the Company a credit facility (which includes letters of credit) upon the terms and
conditions set forth herein. In consideration of the mutual agreements herein contained, the parties hereto agree as follows:
SECTION 1.
DEFINITIONS
1.1. Definitions . When used herein the following terms shall have the following meanings: “ Account Debtor ” is defined in the UCC. “ Account or Accounts ” is defined in the UCC. “ Acquisition ” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in (a) the
acquisition of all or substantially all of the assets of a Person, or of all or substantially all of any business or division of a Person, (b) the acquisition of in excess of 50% of the Capital Securities of any Person, or (c) the acquisition of another Person pursuant to a merger or consolidation or any other combination with such Person (other than a Person that is already a Subsidiary).
“ Administrative Agent ” means Bank of America in its capacity as administrative agent for the Lenders hereunder and any successors
thereto in such capacity. “ Administrative Agent Fee Letter ” means the fee letter dated as of February 28, 2012 between the Company and the Administrative
Agent. “ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Annex B or
such other address or account as the Administrative Agent may from time to time notify the Company and the Lenders in writing.
“ Administrative Questionnaire ” means an administrative questionnaire substantially in the form of Exhibit F (or such other form as
may from time to time be supplied by the Administrative Agent). “ Affected Loan ” - see Section 8.3 . “ Affiliate ” of any Person means (a) any other Person which, directly or indirectly, controls or is controlled by or is under common
control with such Person and/or (b) with respect to any Lender, any entity administered or managed by such Lender or an Affiliate or investment advisor thereof and which is engaged in making, purchasing, holding or otherwise investing in commercial loans. A Person shall be deemed to be “controlled by” another Person if such other Person possesses, directly or indirectly, power to vote 10% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managers or power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise. Unless expressly stated otherwise herein, neither the Administrative Agent nor any Lender shall be deemed an Affiliate of any Loan Party.
“ Aggregate Revolving Commitments ” means the Revolving Commitments of all the Lenders. The aggregate principal amount of the
Aggregate Revolving Commitments in effect on the Closing Date is TWO HUNDRED MILLION DOLLARS ($200,000,000). “ Agreement ” - see the Preamble . “ Applicable Margin ” means, for any day, the rate per annum set forth below opposite the level (the “ Level ”) then in effect, it being
understood that the Applicable Margin for (i) LIBOR Loans shall be the percentage set forth under the column “LIBOR Margin”, (ii) Base Rate Loans shall be the percentage set forth under the column “Base Rate Margin”, (iii) the Non-Use Fee Rate shall be the percentage set forth under the column “Non-Use Fee Rate” and (iv) the L/C Fee shall be the percentage set forth under the column “L/C Fee Rate”:
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Level
Total Debt to EBITDA Ratio
LIBOR Margin
Base Rate Margin
Non-Use Fee Rate
L/C Fee
Rate
I Greater than or equal to 4.00 to 1.0
3.50 % 2.50 % 0.45 % 3.50 % II
Greater than or equal to 3.50 to 1.0 but
less than 4.00 to 1.0 3.25 % 2.25 % 0.40 % 3.25 %
III
Greater than or equal to 3.00 to 1.0 but less than 3.50 to 1.0
3.00 % 2.00 % 0.35 % 3.00 % IV
Greater than or equal to 2.50 to 1.0 but
less than 3.00 to 1.0 2.75 % 1.75 % 0.30 % 2.75 %
V Less than 2.50 to 1.0
2.25 % 1.25 % 0.30 % 2.25 %
The LIBOR Margin, the Base Rate Margin, the Non-Use Fee Rate and the L/C Fee Rate shall be adjusted, to the extent
applicable, on the first Business Day immediately following the date that the Company is required to deliver the annual and quarterly financial statements and other information pursuant to Section 10.1.1 or 10.1.2 , as applicable, and the related Compliance Certificate, pursuant to Section 10.1.3 . Notwithstanding anything contained in this paragraph to the contrary, (a) during the period from the Closing Date through the first Business Day immediately following the date that the Company is required to deliver quarterly financial statements and other information pursuant to Section 10.1.2 and the related Compliance Certificate pursuant to Section 10.1.3 for the Computation Period ending as of the last day of the first full Fiscal Quarter ending after the Closing Date, the LIBOR Margin, the Base Rate Margin, the Non-Use Fee Rate and the L/C Fee Rate shall be based upon Level II, (b) if the Company fails to deliver such financial statements and Compliance Certificate in accordance with the provisions of Section 10.1.1, 10.1.2 and 10.1.3 , the LIBOR Margin, the Base Rate Margin, the Non-Use Fee Rate and the L/C Fee Rate shall be based upon Level I above beginning on the date such financial statements and Compliance Certificate were required to be delivered until the first (1 ) Business Day after such financial statements and Compliance Certificate are actually delivered, whereupon the Applicable Margin shall be determined by the then current Level, and (c) no reduction to any Applicable Margin shall become effective at any time when an Event of Default has occurred and is continuing. Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Margin for any period shall be subject to the provisions of Section 4.4 .
“ Approved Fund ” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender. “ Asset Disposition ” - see Section 11.4(b) . “ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the
consent of any party whose consent is required by Section 15.6.2 ), and accepted by the Administrative Agent, in substantially the form of Exhibit C or any other form (including electronic documentation generated by MarkitClear or other electronic platform) approved by the Administrative Agent and, provided that the Company’s consent is required for the underlying assignment to be affected, the Company.
“ Attorney Costs ” means, with respect to any Person, all reasonable and documented fees and out of pocket charges of any external
counsel to such Person, all reasonable and documented disbursements of such counsel and all court costs and similar legal expenses. “ Audited Financial Statements ” means the audited consolidated balance sheet of the Company and its Subsidiaries for the Fiscal Year
ended December 31, 2011, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such Fiscal Year of the Company and its Subsidiaries, including the notes thereto, audited by independent public accountants of recognized national standing and prepared in conformity with GAAP.
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“ Availability Period ” means, with respect to the Revolving Commitments, the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Revolving Commitments pursuant to Section 6.1.2 , and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the Issuing Lenders to make L/C Credit Extensions pursuant to Section 13.2 .
“ Bank of America ” - see the Preamble. “ Bank Product Agreements ” means those certain cash management service agreements entered into from time to time between the
Company or any Guarantor and a Bank Product Provider in connection with any of the Bank Products. “ Bank Product Obligations ” means all obligations, liabilities, contingent reimbursement obligations, fees, and expenses owing by the
Company or any Guarantor to any Bank Product Provider pursuant to or evidenced by the Secured Bank Product Agreements and irrespective of whether for the payment of money, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, and including all such amounts that the Company or any Guarantor is obligated to reimburse to the Administrative Agent or any Lender as a result of the Administrative Agent or such Lender purchasing participations or executing indemnities or reimbursement obligations with respect to the Bank Products provided to the Company or any Guarantor pursuant to the Secured Bank Product Agreements.
“ Bank Product Provider ” means (a) any Person that is a Lender or an Affiliate of a Lender at the time that it becomes a party to a Bank
Product Agreement with the Company or any Guarantor and (b) any Lender on the Closing Date or Affiliate of such Lender that is a party to a Bank Product Agreement with the Company or any Guarantor in existence on the Closing Date.
“ Bank Products ” means any service or facility extended to the Company or any Guarantor by any Bank Product Provider including:
(a) credit cards, (b) credit card processing services, (c) debit cards, (d) purchase cards, (e) ACH Transactions, (f) cash management, including controlled disbursement, accounts or services, or (g) Hedging Agreements.
“ Base Rate ” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 0.50%, (b) the rate
of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” and (c) the LIBOR Rate plus 1.00%. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in the “prime rate” announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
“ Base Rate Loan ” means any Loan which bears interest at or by reference to the Base Rate. “ Base Rate Margin ” - see the definition of Applicable Margin.
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“ Borrowing ” means each of the following: (a) a borrowing of Swing Line Loans pursuant to Section 2.4 and (b) a borrowing
consisting of simultaneous Loans of the same Type and, in the case of LIBOR Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.1 .
“ BSA ” - see Section 10.4 . “ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under
the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any LIBOR Loan, means any such day that is also a London Banking Day.
“ Capital Expenditures ” means all expenditures which, in accordance with GAAP, would be required to be capitalized and shown on
the consolidated balance sheet of the Company, including expenditures in respect of Capital Leases, but excluding (a) expenditures made in connection with the replacement, substitution or restoration of assets to the extent financed (i) from insurance proceeds (or other similar recoveries) paid on account of the loss of or damage to the assets being replaced or restored or (ii) with awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced, (b) Permitted Acquisitions, (c) any such expenditure funded with the cash proceeds of issuances after the Closing Date of Capital Securities of the Company that are not Disqualified Stock, only to the extent not required to be made as a prepayment pursuant to Section 6.2.2 , which proceeds are not used for any other purposes permitted hereunder, so long as (i) such expenditure is made within thirty (30) days of such issuance and (ii) the Company shall have delivered to the Administrative Agent a certificate of a Senior Officer of the Company setting forth in reasonable detail the amount of cash proceeds so received and such related expenditure no later than five (5) Business Days prior to the date such expenditure is made and (d) any such expenditure to the extent reimbursed in cash during the applicable period of measurement by any Person that is not a Loan Party or a Subsidiary and for which no Loan Party nor any Subsidiary has any obligation or liability to such Person with respect to such expenditure.
“ Capital Lease ” means, with respect to any Person, any lease of (or other agreement conveying the right to use) any real or personal
property by such Person that, in accordance with GAAP, is accounted for as a capital lease on the balance sheet of such Person. “ Capital Securities ” means, with respect to any Person, all shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person’s capital, whether now outstanding or issued or acquired after the Closing Date, including common shares, preferred shares, membership interests in a limited liability company, limited or general partnership interests in a partnership, interests in a trust, interests in other unincorporated organizations or any other equivalent of such ownership interest.
“ Cash Collateralize ” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the
Issuing Lenders or the Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if the Administrative Agent and the Issuing Lenders shall agree in their sole discretion, other credit support, in each case pursuant to documentation in
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form and substance reasonably satisfactory to the Administrative Agent and the Issuing Lenders. “ Cash Collateral ” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“ Cash Equivalent Investment ” means, at any time, (a) any evidence of Debt, maturing not more than one year after such time, issued
or guaranteed by the United States Government or any agency thereof, (b) commercial paper, maturing not more than one year from the date of issue, or corporate demand notes, in each case (unless issued by a Lender or its holding company) rated at least A-l (or the equivalent thereof) by Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc. or P-l (or the equivalent thereof) by Moody’s Investors Service, Inc., (c) any certificate of deposit, time deposit or banker’s acceptance, maturing not more than one year after such time, or any overnight Federal Funds transaction that is issued or sold by any Lender or its holding company (or by a commercial banking institution that is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000), (d) any repurchase agreement entered into with any Lender (or commercial banking institution of the nature referred to in clause (c) ) which (i) is secured by a fully perfected security interest in any obligation of the type described in any of clauses (a ) through (c) above and (ii) has a market value at the time such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such Lender (or other commercial banking institution) thereunder and (e) money market accounts or mutual funds which invest exclusively in assets satisfying the foregoing requirements, (f) securities issued or directly and fully guaranteed or insured by any state, commonwealth or territory of the United States (provided that the full faith and credit of such state, commonwealth or territory is pledged in support thereof) or by any political subdivision or taxing authority of any such state, commonwealth or territory (provided that the full faith and credit of such political subdivision or territory is pledged in support thereof) and, in each case, having maturities of not more than one year from the date of issue and rated at least A-l (or the equivalent thereof) by Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc. or P-l (or the equivalent thereof) by Moody’s Investors Service, Inc. and (g) other short term liquid investments approved in writing by the Administrative Agent.
“ Central Parking ” means KCPC Intermediate Holdings, Inc., a Delaware corporation. “ Central Parking Acquisition ” means the acquisition of the Target Companies by the Company pursuant to the Central Parking
Acquisition Documents. “ Central Parking Acquisition Agreement ” means that certain agreement and plan of merger dated as of February 28, 2012 by and
among KCPC Holdings, Inc., the Company, Hermitage Merger Sub, Inc. and the “Stockholders’ Representative” (as defined therein) and including without limitation all schedules and exhibits thereto.
“ Central Parking Acquisition Documents ” means the Central Parking Acquisition Agreement and all other material agreements,
instruments and documents executed and delivered in connection with the Central Parking Acquisition Agreement. “ Central Parking Finance Trust ” means Central Parking Finance Trust, a Delaware trust.
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“ Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of
any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided , that , notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“ Change of Control ” means the occurrence of any of the following: (i) the sale, lease, transfer, conveyance or other disposition, in one
or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any “person” (as such term is used in subsection 13(d)(3) of the Exchange Act), (ii) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as defined above) becomes the “beneficial owner” (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that a person shall be deemed to have “beneficial ownership” of all securities that such person has the right to acquire, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition; provided , however , that a bona fide pledgee shall not be deemed to be the beneficial owner of such pledged securities until the pledgee has taken all formal steps necessary which are required to declare a default and determines that the power to vote or to direct the vote or to dispose or to direct the disposition of such pledged securities will be exercised), directly or indirectly, of 50% or more of the Voting Stock of the Company (measured by voting power rather than number of shares), (iii) the occurrence of any change of control or similar provision in any Subordinated Debt Documents or (iv) during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Company cease to be composed of individuals (a) who were members of that board or equivalent governing body on the first day of such period, (b) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (a) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (c) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (a) and (b) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (b) and clause (c), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors).
“ Closing Date ” means October 2, 2012. “ Closing Date Material Adverse Effect ” means, with respect to any Person, any event, circumstance, development, change or effect
that, individually or in the aggregate with all other 7
such events, circumstances, developments, changes and effects, (i) would reasonably be expected to materially adversely affect the ability of such Person to consummate the Central Parking Acquisition, or to perform its obligations hereunder, in a timely manner or (ii) has had, or would reasonably be expected to have, a material adverse effect on the business, operations, assets, liabilities, financial condition or results of operations of such Person and its Subsidiaries, taken as a whole, other than any event, state of facts, circumstance, development, change or effect directly resulting from: (a) changes in general economic, regulatory or political conditions or changes affecting the economy or securities or financial markets in general; (b) a material worsening of current conditions caused by an act of terrorism or war (whether declared or not declared) occurring after February 28, 2012, or any natural disasters or any national or international calamity affecting the United States occurring after February 28, 2012; (c) any general downturn in the industry in which such Person or any of its Subsidiaries operates, except, in the case of clauses (a), (b) and (c), to the extent such changes or developments have a disproportionate impact on the business, assets, liabilities, condition or results of operations of such Person and its Subsidiaries, taken as a whole, relative to other participants in the industry in which such Person and its Subsidiaries conducts their businesses; (d) any change in the market price or trading volume of such Person’s securities in and of itself; (e) any changes after February 28, 2012 in GAAP or any change in laws or the interpretation thereof; (f) the public announcement of the Central Parking Acquisition and the transactions contemplated hereby; or (g) any communication by or on behalf of the Company (x) made publicly in violation of the Central Parking Acquisition Agreement or (y) made to employees of any of the Target Companies generally without the prior express written consent of Central Parking, in each case regarding plans or intentions of the Company with respect to any of the Target Companies, or their respective businesses or employees (provided that this clause (g) shall be applicable to a determination of whether a Closing Date Material Adverse Effect exists or has occurred with respect to the Target Companies only). For purposes of this definition only, “Person” means any individual, sole proprietorship, general partnership, limited partnership, limited liability company, joint venture, trust, unincorporated association, corporation, governmental authority or other entity or group (which term will include a “group” as such term is defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended).
“ Code ” means the Internal Revenue Code of 1986, as amended. “ Collateral ” has the meaning set forth in the Guaranty and Collateral Agreement. “ Collateral Documents ” means, collectively, the Guaranty and Collateral Agreement, each Mortgage and any other agreement or
instrument pursuant to which the Company, any Subsidiary or any other Person grants or purports to grant collateral to the Administrative Agent for the benefit of the holders of the Obligations or otherwise relates to such collateral.
“ Commitment ” means, as to each Lender, the Revolving Commitment of such Lender and/or the Term Loan Commitment of such
Lender. “ Company ” - see the Preamble . “ Competitor ” means each institution listed on Schedule 1.1(a) on the Closing Date.
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“ Compliance Certificate ” means a Compliance Certificate in substantially the form of Exhibit B . “ Computation Period ” means each period of four consecutive Fiscal Quarters ending on the last day of a Fiscal Quarter. “ Consolidated Net Income ” means, with respect to the Company and its Subsidiaries for any period, the net income (or loss) of the
Company and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, but excluding from the determination of Consolidated Net Income (without duplication), (a) any extraordinary gains or losses (as determined in accordance with GAAP), (b) gains and losses attributable to discontinued operations (as determined in accordance with GAAP) and (c) the income of any Person (including without limitation any Subsidiary or Joint Venture, but excluding any Wholly-Owned Subsidiary) in which any Person other than the Company or any of its Subsidiaries has a joint interest or partnership interest or other ownership interest, to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary or Joint Venture is not at the time permitted by operation of the terms of its charter or of any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary or Joint Venture, except to the extent of the amount of dividends or other distributions that are actually paid in cash to the Company during such period.
“ Contingent Liability ” means, with respect to any Person, each obligation and liability of such Person and all such obligations and
liabilities of such Person incurred pursuant to any agreement, undertaking or arrangement by which such Person: (a) guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the indebtedness, dividend, obligation or other liability of any other Person in any manner (other than by endorsement of instruments in the course of collection), including any indebtedness, dividend or other obligation which may be issued or incurred at some future time; (b) guarantees the payment of dividends or other distributions upon the Capital Securities of any other Person; (c) undertakes or agrees (whether contingently or otherwise): (i) to purchase, repurchase, or otherwise acquire any indebtedness, obligation or liability of any other Person or any property or assets constituting security therefor, (ii) to advance or provide funds for the payment or discharge of any indebtedness, obligation or liability of any other Person (whether in the form of loans, advances, stock purchases, capital contributions or otherwise), or to maintain solvency, assets, level of income, working capital or other financial condition of any other Person, or (iii) to make payment to any other Person other than for value received; (d) agrees to lease property or to purchase securities, property or services from another Person with the purpose or intent of assuring any owner of indebtedness or obligations of such other Person of the ability of such other Person to make payment of such indebtedness or obligations; (e) to induce the issuance of, or in connection with the issuance of, any letter of credit for the benefit of such other Person; or (f) undertakes or agrees otherwise to assure a creditor against loss; provided , however , for purposes of calculating compliance with Section 11.13 , Contingent Liabilities shall exclude endorsements of instruments for deposit or collection in the ordinary course of business and all Off-Balance Sheet Liabilities of such Person, except for any liabilities of such Person under Facility Leases, Ordinary Course Equipment Leases and Facility Management Agreements. The amount of any Contingent Liability shall
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(subject to any limitation set forth herein) be deemed to be the stated or determinable outstanding principal amount of the indebtedness, obligation or other liability guaranteed or supported thereby or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.
“ Controlled Group ” means all members of a controlled group of corporations, all members of a group of trades or businesses (whether
or not incorporated) under common control and all members of an affiliated service group which, together with the Company or any of its Subsidiaries, are treated as a single employer under Section 414 of the Code or Section 4001 of ERISA.
“ Credit Extension ” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension. “ Debt ” of any Person means, without duplication, (a) all indebtedness of such Person, for borrowed money, whether or not evidenced
by bonds, debentures, notes or similar instruments, (b) all obligations of such Person as lessee under Capital Leases which have been or should be recorded as liabilities on a balance sheet of such Person in accordance with GAAP, (c) all obligations of such Person to pay the deferred purchase price of property or services (excluding (i) trade accounts payable in the ordinary course of business and (ii) obligations to pay the Base Cash Amount (as defined in, and as determined in accordance with, the Central Parking Acquisition Agreement)), (d) all indebtedness secured by a Lien on the property of such Person, whether or not such indebtedness shall have been assumed by such Person; provided that if such Person has not assumed or otherwise become liable for such indebtedness, such indebtedness shall be measured at the fair market value of such property securing such indebtedness at the time of determination, (e) all obligations, contingent or otherwise, with respect to the face amount of all letters of credit (whether or not drawn), bankers’ acceptances, surety bonds and similar obligations issued for the account of such Person (including the Letters of Credit), (f) all Hedging Obligations of such Person, (g) all Contingent Liabilities of such Person, (h) any liability of such Person for Earnouts (excluding any obligation of such Person for Earnouts until such time as such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP), (i) Off-Balance Sheet Liabilities of such Person, (j) all Debt of any partnership of which such Person is a general partner, (k) all Subordinated Debt of such Person and (i) all Disqualified Stock of such Person (provided that other Capital Securities that do not constitute Disqualified Stock shall not constitute Debt, regardless of any changes in GAAP). Notwithstanding the foregoing, Debt shall not include advances to the Company from customers in connection with Facility Leases and Facility Management Agreements of the Company in the ordinary course of business.
“ Debtor Relief Laws ” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy,
assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
“ Default Rate ” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base
Rate plus (ii) the Applicable Margin, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided , however , that with respect to a
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LIBOR Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Margin) otherwise applicable to such Loan plus 2% per annum, in each case to the fullest extent permitted by applicable Laws and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Margin plus 2% per annum.
“ Defaulting Lender ” means, subject to Section 2.8(b) , any Lender that (a) has failed to (i) fund all or any portion of its Loans within
two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Company in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Issuing Lenders, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified the Company, the Administrative Agent, the Issuing Lenders or the Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Company, to confirm in writing to the Administrative Agent and the Company that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Company), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided, that, a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Securities in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.8(b) ) upon the delivery by the Administrative Agent of a written notice of such determination to the Company, the Issuing Lenders, the Swing Line Lender and each other Lender.
“ Designated Jurisdiction ” means any country or territory to the extent that such country or territory is the subject of any Sanction.
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“ Disqualified Stock ” means any class of Capital Security that, by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable), or upon the happening of any event, (i) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part, or otherwise has any distributions or other payments which are mandatory or otherwise required at any time on or prior to the date that is one hundred and eighty-one (181) days after the Maturity Date or (ii) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (a) debt securities or (ii) any Capital Security referred to in clause (i) above, in each case at any time prior to the date that is one hundred and eighty-one (181) days after the Maturity Date; provided that any payment or conversion that is required solely due to a customary change of control provision not more restrictive than the Change of Control default in this Agreement shall not cause such class of Capital Security to be deemed Disqualified Stock; provided , further , that , any Capital Security that is issued pursuant to a plan for the benefit of employees of the Company (or any direct or indirect parent thereof) or any other Loan Party or by any such plan to such employees, such Capital Security shall not constitute Disqualified Stock solely because it may be required to be repurchased by a Loan Party in order to satisfy applicable statutory or regulatory obligations.
“ DOJ Stipulation ” means collectively, (a) that certain Asset Stipulation and Order ordered by the United States District Court for the
District of Columbia on October 1, 2012, including that certain proposed Final Judgment attached as Exhibit A thereto and (b) any final judgment entered into by the Company or any Guarantor with the Department of Justice in connection with the order described in clause (a) of this definition, in each case, as the same may be extended or otherwise modified from time to time.
“ Dollar ” and the sign “ $ ” mean lawful money of the United States of America. “ Domestic Subsidiary ” means each present and future Subsidiary of the Company which is not a Foreign Subsidiary. “ Earnouts ” means any payment which may be owing by any Person in connection with any Permitted Acquisition, which payment is
contingent upon the earnings or other financial performance of the assets or stock being acquired pursuant to such Acquisition. “ EBITDA ” means, for any Computation Period, for the Company and its Subsidiaries on a consolidated basis, an amount equal to
Consolidated Net Income for such Computation Period plus (a) the following ((x) without duplication of any amount added back to Consolidated Net Income pursuant to any other sub-clause
of this clause (a) and (y) with respect to the Computation Periods ending March 31, 2013, June 30, 2013 and September 30, 2013, without duplication of any amounts included in arriving at the calculations of EBITDA described in the last paragraph of this definition for any of the Fiscal Quarters ending June 30, 2012, September 30, 2012 and December 31, 2012) to the extent, and only to the extent, deducted in calculating such Consolidated Net Income, all as determined in accordance with GAAP:
(i) Interest Expense for such Computation Period;
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(ii) income tax expenses of the Company and its Subsidiaries for such Computation Period; (iii) depreciation and amortization expense for such Computation Period; (iv) any losses from the sale, exchange, transfer or other disposition of property or assets not in the ordinary course of
business of the Company and its Subsidiaries during such Computation Period, and related tax effects in accordance with GAAP; (v) all non-cash expenses or charges reducing Consolidated Net Income for such Computation Period (excluding any
such expenses or charges related to accounts receivable) which do not represent a cash item in such period or any future period; (vi) non-recurring fees, costs, and expenses incurred in connection with the Transactions (to the extent not capitalized)
and integration costs and expenses directly related to the Central Parking Acquisition and incurred within twenty-four (24) months after the Closing Date; provided , that , the aggregate amount of all such costs and expenses added back to Consolidated Net Income pursuant to this clause (a)(vi) shall not exceed $39,500,000 during the term of this Agreement; provided , further , that , the aggregate amount of such costs and expenses added back to Consolidated Net Income pursuant to this clause (a)(vi) that were incurred after the first (1 ) anniversary of the Closing Date but before the second (2 ) anniversary of the Closing Date shall not exceed $10,000,000;
(vii) integration costs and expenses directly related to any Permitted Acquisition or other Acquisition permitted hereunder
and, in each case, incurred during such Computation Period and within twelve (12) months after the date of consummation of such Permitted Acquisition or other Acquisition permitted hereunder; provided , that , such costs and expenses are certified in a certificate of a Senior Officer of the Company delivered to the Administrative Agent and in form and substance satisfactory to the Administrative Agent;
(viii) any non-cash compensation expenses (including expenses related to the Company’s restricted stock grants under its
long-term incentive plan) in an aggregate amount not to exceed $10,000,000 during any Computation Period; (ix) costs, fees and expenses accrued, paid or incurred during such Computation Period in connection with Asset
Dispositions that are (x) consummated within twelve (12) months (or such longer period permitted under the DOJ Stipulation for such Asset Dispositions to be consummated) after the Closing Date and (y) required to be made pursuant to such DOJ Stipulation; provided , that , the aggregate amount of such costs, fees and expenses added back to Consolidated Net Income pursuant to this clause (a)(ix) shall not exceed $10,000,000 during any Computation Period;
(x) to the extent actually reimbursed, expenses incurred during such Computation Period to the extent covered by
indemnification provisions in any agreement in connection with a Permitted Acquisition;
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st nd
(xi) fees, costs and expenses of the Company and its Subsidiaries during such Computation Period in each case in
connection with Investments permitted under Section 11.10 , Asset Dispositions permitted under Section 11.4 , Permitted Acquisitions, issuances of Debt permitted under Section 11.1 or issuances of Capital Securities (other than the Transactions) (in each case, whether or not consummated) in an aggregate amount not to exceed $10,000,000 during any Computation Period; and
(xii) any non-cash losses under any Hedging Obligation during such Computation Period;
minus
(b) the following ((x) without duplication of any amount deducted from Consolidated Net Income pursuant to any other sub-clause of this clause (b) and (y) with respect to the Computation Periods ending March 31, 2013, June 30, 2013 and September 30, 2013, without duplication of any amounts excluded in arriving at the calculations of EBITDA described in the last paragraph of this definition for any of the Fiscal Quarters ending June 30, 2012, September 30, 2012 and December 31, 2012) to the extent, and only to the extent included in calculating such Consolidated Net Income, all as determined in accordance with GAAP:
(i) any gains from the sale, exchange, transfer or other disposition of property or assets not in the ordinary course of
business of the Company and its Subsidiaries during such Computation Period, and related tax effects in accordance with GAAP; (ii) the proceeds of any insurance policy received by the Company or any Subsidiary during such Computation Period; (iii) interest income of the Company and its Subsidiaries for such Computation Period; (iv) all non-cash items increasing Consolidated Net Income for such Computation Period; (v) any non-cash gains under any Hedging Obligation during such Computation Period;
plus (c) income for such Computation Period attributable to minority interests in an aggregate amount not to exceed $6,000,000 for
any Computation Period, as determined in accordance with GAAP; plus (d) cost savings (net of realized benefits) and synergies projected by the Borrower in good faith to be realized as a result of the
Central Parking Acquisition and incurred within twelve (12) months after the Closing Date in an aggregate amount not to exceed $5,700,000 during the term of this Agreement;
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minus (e) any loss relating to Hedging Obligations that is realized in the current Computation Period and has been added back to
Consolidated Net Income for the same or any prior Computation Period pursuant to the preceding subclause (a)(xii); provided , that such loss shall be treated as realized when the cash impact resulting therefrom has been realized, in the amount of such impact;
plus (f) any gain relating to Hedging Obligations that is realized in the current Computation Period and has been deducted from
Consolidated Net Income for the same or any prior Computation Period pursuant to the preceding subclause (b)(v); provided , that such gain shall be treated as realized when the cash impact resulting therefrom has been realized, in the amount of such cash impact.
Notwithstanding the foregoing, (x) “EBITDA” for each of the Fiscal Quarters ended September 30, 2011, December 31, 2011,
March 31, 2012 and June 30, 2012 shall be equal to the amount for such Fiscal Quarter set forth on Schedule 1.1(c) and (y) “EBITDA” for each of the Fiscal Quarters ending September 30, 2012 and December 31, 2012 shall be equal to the amount for such Fiscal Quarter approved by the Administrative Agent in its reasonable discretion (for the avoidance of doubt, with adjustments substantially similar to the adjustments used in arriving at the amounts designated on Schedule 1.1(c) ).
“ Eligible Assets ” means property that is used or useful in the same or a similar line of business as the Company and its Subsidiaries
were engaged in on the Closing Date (or any reasonable extension or expansions thereof and any business reasonably related, complementary or ancillary thereto).
“ Eligible Assignee ” means any Person that meets the requirements to be an assignee under Section 15.6.2(C) and (E) (subject to such
consents, if any, as may be required under Section 15.6.2(C) ). “ Environmental Claims ” means all claims asserted in writing by any governmental, regulatory or judicial authority or other Person
alleging potential liability or responsibility for violation of any Environmental Law, or for release of a Hazardous Substance or injury to the environment.
“ Environmental Laws ” means all applicable federal, state or local laws, statutes, common law duties, rules, regulations, ordinances
and codes, together with all administrative or judicial orders, consent agreements, licenses, authorizations and permits of, and written agreements with, any governmental authority, in each case relating to any matter relating to public health and safety, or pollution or protection of the environment or workplace, including any of the foregoing relating to the presence, use, production, generation, handling, transport, treatment, storage, disposal, distribution, discharge, emission, release, threatened release, control or cleanup of any Hazardous Substance.
“ Environmental Requirements ” has the meaning set forth in Section 10.8 .
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“ ERISA ” means the Employee Retirement Income Security Act of 1974. “ Event of Default ” means any of the events described in Section 13.1 . “ Excess Cash Flow ” means, for the Company and its Subsidiaries on a consolidated basis for any Excess Cash Payment Period, an
amount equal to the sum, without duplication, of (a) EBITDA for such Excess Cash Payment Period minus (b) Capital Expenditures paid in cash in such Excess Cash Payment Period and permitted hereunder (net of any debt proceeds (other than the proceeds of Revolving Loans) or equity issuance proceeds used to finance such Capital Expenditures), minus (c) the cash portion of Interest Expense for such Excess Cash Payment Period minus (d) income tax expenses paid or payable in cash by the Loan Parties in such Excess Cash Payment Period minus (e) regularly scheduled payments of principal of Debt during such Excess Cash Payment Period (other than Revolving Loans) minus (f) any cash consideration (for the avoidance of doubt to include, but not be limited to purchase price adjustments paid in cash and indemnification payments paid in cash) paid in such Excess Cash Payment Period in connection with a Permitted Acquisition or other Investment permitted hereunder (in each case net of any debt proceeds (other than the proceeds of Revolving Loans) or equity issuance proceeds used to finance such Permitted Acquisition or Investment permitted hereunder) minus (g) any cash payment made during such Excess Cash Payment Period with respect to the Base Cash Amount (as defined in, and as determined in accordance with, the Central Parking Acquisition Agreement) minus (h) any cash fees, costs and expenses, in each case to the extent added back to Consolidated Net Income for such Excess Cash Payment Period under clauses (a)(vi), (a)(vii), (a)(ix) and (a)(xi) of the definition of EBITDA, in each case as determined in accordance with GAAP.
“ Excess Cash Payment Period ” means, with respect to each prepayment required by Section 6.2.2(a)(iv) , the immediately preceding
Fiscal Year of the Company. “ Exchange Act ” means the Securities Exchange Act of 1934, as amended. “ Excluded Property ” means, with respect to the Company or any Guarantor, including any Person that becomes a Guarantor after the
Closing Date as contemplated by Section 10.9 , (a) any owned or leased real or personal property which is located outside of the United States, (b) any personal property (including, without limitation, motor vehicles) in respect of which perfection of a Lien is not either (i) governed by the Uniform Commercial Code or (ii) effected by appropriate evidence of the Lien being filed in either the United States Copyright Office or the United States Patent and Trademark Office, (c) the Capital Securities of any Foreign Subsidiary of the Company or a Guarantor to the extent not required to be pledged to secure the Obligations pursuant to Section 10.9 , (d) any property which, subject to the terms of Section 11.8 , is subject to a Lien of the type described in Section 11.2(i) pursuant to documents which prohibit the Company or such Guarantor from granting any other Liens in such property, (e) any owned real property with a book value less than $20,000,000, (f) any leasehold interest of the Company or a Guarantor in real property and (g) (i) any property to the extent that the grant of a security interest in such property to the Administrative Agent, for the benefit of the holders of the Obligations, is prohibited by Law or requires a consent not obtained from any Governmental Authority pursuant to such Law and (ii) any rights under any lease, contract, license or other agreement or any General Intangible (as defined in the Guaranty and Collateral Agreement) or Intellectual Property (as defined in the Guaranty and Collateral Agreement), in each case, to the
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extent the grant of a security interest pursuant to the Collateral Documents: (x) would invalidate the underlying right of the Company or any Guarantor in such lease, contract, agreement, General Intangible or Intellectual Property, (y) is prohibited by such lease, contract, license, agreement, Intellectual Property or General Intangible without the consent of the parties thereto required to consent to such grant of a security interest or (z) would give any other party to such contract, license, agreement, Intellectual Property or General Intangible the right to terminate its obligations thereunder, in each case, solely to the extent that any such restriction shall be enforceable under the UCC and other applicable Law, and unless and until all necessary consents to such grant of a security interest have been obtained from the other parties thereto.
“ Excluded Taxes ” means any of the following Taxes imposed on or with respect to, or required to be deducted or withheld from a
payment to, a Lender or the Administrative Agent (or a branch of such Lender or the Administrative Agent): (A) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes , in each case (i) imposed as a result of such Person being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes , (B) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Company under Section 8.7(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 7.6(b) or (c) , amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (C) Taxes attributable to such Person’s failure to comply with Section 7.6(d) and (D) any U.S. federal withholding Taxes imposed pursuant to FATCA.
“ Existing Central Credit Agreements ” means (a) that certain First Lien Credit and Guaranty Agreement dated as of May 22, 2007
among KCPC Acquisition, Inc., a Tennessee corporation, Central Parking corporation, a Tennessee corporation, KCPC Intermediate Holdings, Inc., a Delaware corporation, certain Persons from time to time party thereto as guarantors, the financial institutions from time to time party thereto as lenders and Goldman Sachs Credit Partners LP, as administrative agent and collateral agent and (b) that certain Second Lien Credit and Guaranty Agreement dated as of May 22, 2007 among KCPC Acquisition, Inc., a Tennessee corporation, Central Parking Corporation, a Tennessee corporation, KCPC Intermediate Holdings, Inc., a Delaware corporation, certain Persons from time to time party thereto as guarantors, the financial institutions from time to time party thereto as lenders and Capital Source Finance LLC, as administrative agent and collateral agent.
“ Existing Credit Agreements ” means the Existing Standard Parking Credit Agreement and the Existing Central Credit Agreements. “ Existing Standard Parking Credit Agreement ” means that certain Amended and Restated Credit Agreement dated as of July 15, 2008
among the Company, each lender from time to time party thereto, Bank of America as an issuing lender, as a lender, as swing line lender and as administrative agent and Wells as an issuing lender, as a lender and as syndication agent, as amended or otherwise modified.
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“ Existing Letter of Credit ” means the letters of credit issued by any Issuing Lender prior to the Closing Date which have not expired or
been drawn in full and reimbursed as of the Closing Date, described by date of issuance, Issuing Lender, letter of credit number, undrawn amount, name of beneficiary and date of expiry on Schedule 1.1(b) .
“ Facility Leases ” means agreements for the lease by the Company or any of its Subsidiaries or Joint Ventures of real estate utilized as
a vehicle parking facility and/or for ancillary parking and transportation services. “ Facility Management Agreement ” means any agreement (other than the Facility Leases), for the provision by the Company or any of
its Subsidiaries or Joint Ventures of services for the management or operation of a vehicle parking facility and/or ancillary parking and transportation services, including without limitation any such agreement designated as a management agreement, parking enforcement agreement, operating agreement or license agreement.
“ FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that
is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof.
“ Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.
“ Fiscal Quarter ” means a fiscal quarter of a Fiscal Year. “ Fiscal Year ” means the fiscal year of the Company and its Subsidiaries, which period shall be the 12-month period ending on
December 31 of each year. References to a Fiscal Year with a number corresponding to any calendar year (e.g., “ Fiscal Year 2012 ”) refer to the Fiscal Year ending on December 31 of such calendar year.
“ Fixed Charge Coverage Ratio ” means, as of any date of determination, the ratio of (a) the total of EBITDA for the Computation
Period most recently ended minus income taxes paid in cash by the Company and its Subsidiaries during such Computation Period minus all Unfinanced Capital Expenditures for such Computation Period minus Restricted Payments paid in cash by the Company and its Subsidiaries during such Computation Period to (b) the sum of (i) cash Interest Expense net of any cash interest income, in each case, for such Computation Period plus (ii) regularly scheduled payments of principal of Debt (excluding the Revolving Loans) for such Computation Period, all as determined in accordance with GAAP. With respect to the calculation of the Fixed Charge Coverage Ratio, it is understood and agreed that (x) (i) required
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payments of principal of Debt for the Computation Period ending as of December 31, 2012 shall be based on required payments of principal of Debt for the one Fiscal Quarter period then ended multiplied by four (4), (ii) required payments of principal of Debt for the Computation Period ending as of March 31, 2013 shall be based on required payments of principal of Debt for the two Fiscal Quarter period then ended multiplied by two (2) and (iii) required payments of principal of Debt for the Computation Period ending as of June 30, 2013 shall be based on required payments of principal of Debt for the three Fiscal Quarter period then ended multiplied by four-thirds (4/3) and (y) (i) cash Interest Expense net of any cash interest income for the Computation Period ending as of December 31, 2012 shall be based on cash Interest Expense net of any cash interest income for the one Fiscal Quarter period then ended multiplied by four (4), (ii) cash Interest Expense net of any cash interest income for the Computation Period ending as of March 31, 2013 shall be based on cash Interest Expense net of any cash interest income for the two Fiscal Quarter period then ended multiplied by two (2) and (iii) cash Interest Expense for the Computation Period ending as of June 30, 2013 shall be based on cash Interest Expense net of any cash interest income for the three Fiscal Quarter period then ended multiplied by four-thirds (4/3).
“ Foreign Holdco ” means any Subsidiary of the Company organized in the United States substantially all the assets of which are
Capital Securities of Foreign Subsidiaries. “ Foreign Subsidiary ” means any present or future Subsidiary of the Company incorporated or formed in any jurisdiction (including
Puerto Rico) other than any State or other political subdivision of the United States of America. “ FRB ” means the Board of Governors of the Federal Reserve System or any successor thereto. “ Fronting Exposure ” means, at any time there is a Defaulting Lender, (a) with respect to the Issuing Lenders, such Defaulting Lender’s
Pro Rata Share of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Pro Rata Share of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.
“ Fund ” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the ordinary course of its activities. “ GAAP ” means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession) and the Securities and Exchange Commission, which are applicable to the circumstances as of the date of determination.
“ Governmental Authority ” means the government of the United States or any other nation, or of any political subdivision thereof,
whether state or local, and any agency, authority,
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instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“ Guarantor ” means each present and future Wholly-Owned Domestic Subsidiary (other than (a) any Foreign Holdco, (b) Central
Parking Finance Trust and (c) APCOA Bradley Parking Company, LLC (“ APCOA Bradley ”) so long as APCOA Bradley’s Organization Documents prohibit APCOA Bradley from acting as a Guarantor) of the Company, or any other Person executing a Guaranty and Collateral Agreement at any time. It is understood and agreed that the Company and its Subsidiaries shall not be required to cause Kinney Eastside to become a Guarantor so long as it is dissolved in a transaction permitted by Section 11.4(a)(iii) , or merged into the Company or a Guarantor, within sixty (60) days after the Closing Date (or such later date as may be agreed by the Administrative Agent).
“ Guaranty and Collateral Agreement ” means the Guaranty and Collateral Agreement dated as of the Closing Date executed and
delivered by the Company and each existing, new or future Guarantor, together with any joinders thereto. “ Hazardous Substances ” means (a) any petroleum or petroleum products, radioactive materials, asbestos in any form that is or could
become friable, urea formaldehyde foam insulation, dielectric fluid containing levels of polychlorinated biphenyls, radon gas and mold; (b) any chemicals, materials, pollutant or substances defined as or included in the definition of “hazardous substances”, “hazardous waste”, “hazardous materials”, “extremely hazardous substances”, “restricted hazardous waste”, “toxic substances”, “toxic pollutants”, “contaminants”, “pollutants” or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance, in types or quantities which the exposure to, or release of is prohibited, limited or regulated by any governmental authority or for which any duty or standard of care is imposed pursuant to, any Environmental Law.
“ Hedging Agreement ” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate
transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.
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“ Hedging Agreement Bank ” means (a) any Person that is a Lender or an Affiliate of a Lender at the time that it becomes a party to a
Hedging Agreement with any Loan Party and (b) any Lender on the Closing Date or Affiliate of such Lender that is party to a Hedging Agreement with any Loan Party in existence on the Closing Date.
“ Hedging Obligation ” means, with respect to any Person, any liability of such Person under any Hedging Agreement. The amount of
any Person’s obligation in respect of any Hedging Obligation shall be deemed to be the incremental obligation that would be reflected in the financial statements of such Person in accordance with GAAP.
“ Hedging Termination Value ” means, in respect of any one or more Hedging Agreements, after taking into account the effect of any
legally enforceable netting agreement relating to such Hedging Agreement, (a) for any date on or after the date such Hedging Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s) and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedging Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which may include a Lender or any Affiliate of a Lender).
“ Honor Date ” — see Section 2.3.3(a). “ Immaterial Foreign Subsidiary ” means, at any time, any Foreign Subsidiary that is owned directly by the Company or a Guarantor
and that, together with its Subsidiaries, (a) as of the last day of the Fiscal Quarter of the Company most recently ended for which financial statements are available, did not have consolidated total assets in excess of (i) five percent (5%) of the aggregate consolidated total assets for the Company and its Subsidiaries as at the end of such Fiscal Quarter for any one Immaterial Foreign Subsidiary and its Subsidiaries and (ii) together with other Foreign Subsidiaries directly owned by the Company or a Guarantor, ten percent (10%) of the aggregate consolidated total assets of the Company and its Subsidiaries at the end of such Fiscal Quarter for all Immaterial Foreign Subsidiaries and their respective Subsidiaries in the aggregate and (b) for the period of the four consecutive Fiscal Quarters of the Company most recently ended for which financial statements are available, did not have (i) EBITDA attributable to it for such period constituting five percent (5%) or more of the EBITDA of the Company and its Subsidiaries for such period, as determined in accordance with GAAP, for any one Immaterial Foreign Subsidiary and its Subsidiaries and (ii) together with other Foreign Subsidiaries directly owned by the Company or a Guarantor, EBITDA attributable to such Foreign Subsidiaries for such period constituting ten percent (10%) or more of the EBITDA of the Company and its Subsidiaries for such period, as determined in accordance with GAAP, for all Immaterial Foreign Subsidiaries and their respective Subsidiaries in the aggregate.
“ Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account
of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
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“ Interest Expense ” means for any period the consolidated interest expense of the Company and its Subsidiaries for such period
(including all imputed interest on Capital Leases), as determined in accordance with GAAP. “ Interest Period ” means, as to any LIBOR Loan, the period commencing on the date such Loan is borrowed or continued as, or
converted into, a LIBOR Loan and ending on the date one, two, three or six months thereafter as selected by the Company in its Loan Notice, subject to availability; provided that:
(a) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended
to the following Business Day unless, in the case of a LIBOR Loan, the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the preceding Business Day;
(b) any Interest Period pertaining to a LIBOR Loan that begins on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(c) the Company may not select any Interest Period for any Loan which would extend beyond the scheduled Maturity
Date.
“ Inventory ” is defined in the Guaranty and Collateral Agreement. “ Investment ” means, with respect to any Person, any direct or indirect acquisition or investment by such Person, whether by means of
(a) the purchase or other acquisition of Capital Securities of another Person, (b) a loan, advance or capital contribution to, assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person or becoming obligated with respect to a Contingent Liability in respect of obligations of such other Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor guarantees Debt of such other Person, or (c) an Acquisition. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“ ISP ” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance). “ Issuer Documents ” means with respect to any Letter of Credit, the L/C Application, and any other document, agreement and
instrument entered into by the applicable Issuing Lender and the Company (or any Subsidiary) or in favor of such Issuing Lender and relating to any such Letter of Credit.
“ Issuing Lender ” means (a) Bank of America, in its capacity as an issuer of Letters of Credit hereunder, or any Affiliate of Bank of
America that may from time to time issue Letters of Credit, (b) Wells, in its capacity as an issuer of Letters of Credit hereunder, (c) JPM, in its
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capacity as an issuer of Letters of Credit hereunder and (d) any other Lender in its capacity as issuer of Letters of Credit who has been selected by the Company and who has agreed to act as an Issuing Lender hereunder in accordance with its terms and their successors and assigns in such capacity. Notwithstanding the foregoing, Bank of America and Wells, as applicable, shall be the Issuing Lenders with respect to the Existing Letters of Credit issued by them.
“ JPM ” means as set forth in the Preamble . “ JPMS ” means J.P. Morgan Securities LLC, in its capacity as a joint lead arranger and a joint book manager. “ Joint Fee Letter ” means the fee letter dated as of February 28, 2012 among the Company, Bank of America, Wells, JPM and the Joint
Lead Arrangers. “ Joint Lead Arrangers ” means MLPFS, WFS and JPMS. “ Joint Venture ” means any corporation, limited or general partnership, limited liability company, association, trust or other business
entity of which the Company or one or more of its Subsidiaries owns beneficially at least 25% but less than 50.1% of the Capital Securities of such Person.
“ Kinney Eastside ” means Kinney System Eastside Parking, Inc., a New York corporation. “ Laws ” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
“ L/C Advance ” means, with respect to each Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance
with its Pro Rata Share. “ L/C Application ” means, with respect to any request for the issuance of a Letter of Credit, a letter of credit application in the form
being used by the applicable Issuing Lender at the time of such request for the type of letter of credit requested. “ L/C Borrowing ” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on
the date when made or refinanced as a Borrowing of Revolving Loans. “ L/C Credit Extension ” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the
increase of the amount thereof. “ L/C Fee Rate ” - see the definition of Applicable Margin.
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“ L/C Obligations ” means, as at any date of determination, without duplication, the aggregate amount available to be drawn under all
outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 2.3.10 . For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“ Lender ” means each of the Persons identified as a “Lender” on the signature pages hereto and each Person that joins as a Lender
pursuant to Section 6.1.1 , and, in each case, their respective successors and permitted assigns. References to the “Lenders” shall, as the context requires, include the Issuing Lenders and the Swing Line Lender. For purposes of clarification only, to the extent that any Issuing Lender may have any rights or obligations in addition to those of the other Lenders due to its status as an Issuing Lender, its status as such will be specifically referenced. In addition to the foregoing, for the purpose of identifying the Persons entitled to share in the Collateral and the proceeds thereof under, and in accordance with the provisions of, this Agreement and the Collateral Documents, the term “Lender” shall include Affiliates of a Lender party to a Secured Bank Product Agreement.
“ Lender Party ” - see Section 15.16 . “ Letter of Credit ” means any standby letter of credit issued hereunder providing for the payment of cash upon the honoring of a
presentation thereunder and shall include the Existing Letter(s) of Credit. “ Letter of Credit Expiration Date ” means the day that is seven (7) days prior to the Maturity Date (or, if such day is not a Business
Day, the next preceding Business Day). “ Letter of Credit Fee ” — see Section 5.2 . “ Letter of Credit Sublimit ” means an amount equal to the lesser of (a) the Aggregate Revolving Commitments and (b) $100,000,000.
The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments. “ LIBOR Base Rate ” means: (a) for any Interest Period with respect to a LIBOR Loan, the rate per annum equal to (i) the British Bankers Association LIBOR Rate
(“ BBA LIBOR ”), as published by Reuters (or such other commercially available source providing quotations of BBA LIBOR as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period or (ii) if such rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the LIBOR Loan being made, continued or converted and with a term equivalent to such Interest Period would be
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offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period; and
(b) for any interest rate calculation with respect to a Base Rate Loan on any date, the rate per annum equal to (i) BBA LIBOR, at
approximately 11:00 a.m. London time determined two Business Days prior to such date for Dollar deposits being delivered in the London interbank market for a term of one month commencing that day or (ii) if such published rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the date of determination in same day funds in the approximate amount of the Base Rate Loan being made or maintained with a term equal to one month would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at the date and time of determination.
“ LIBOR Loan ” means any Loan which bears interest at a rate based on clause (a) of the definition of “LIBOR Rate”. “ LIBOR Margin ” - see the definition of Applicable Margin. “ LIBOR Office ” means with respect to any Lender the office or offices of such Lender which shall be making or maintaining the
LIBOR Loans of such Lender hereunder. A LIBOR Office of any Lender may be, at the option of such Lender, either a domestic or foreign office.
“ LIBOR Rate ” means (a) for any Interest Period with respect to any LIBOR Loan, a rate per annum determined by the Administrative
Agent to be equal to the quotient obtained by dividing (i) the LIBOR Base Rate for such LIBOR Loan for such Interest Period by (ii) one minus the LIBOR Reserve Percentage for such LIBOR Loan for such Interest Period and (b) for any day with respect to any Base Rate Loan bearing interest at a rate based on the LIBOR Rate, a rate per annum determined by the Administrative Agent to be equal to the quotient obtained by dividing (i) the LIBOR Base Rate for such Base Rate Loan for such day by (ii) one minus the LIBOR Reserve Percentage for such Base Rate Loan for such day.
“ LIBOR Reserve Percentage ” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried
out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The LIBOR Rate for each outstanding LIBOR Loan and for each outstanding Base Rate Loan the interest on which is determined by reference to the LIBOR Rate, in each case, shall be adjusted automatically as of the effective date of any change in the LIBOR Reserve Percentage.
“ Lien ” means, with respect to any Person, any interest granted by such Person in any real or personal property, asset or other right
owned or being purchased or acquired by such Person (including an interest in respect of a Capital Lease) which secures payment or performance of any obligation and shall include any mortgage, lien, encumbrance, title retention lien, charge or
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other security interest of any kind, whether arising by contract, as a matter of law, by judicial process or otherwise.
“ Loan ” or “ Loans ” means, as the context may require, Revolving Loans, the Term Loan and/or Swing Line Loans. “ Loan Documents ” means this Agreement, the Notes, the Letters of Credit, the Issuer Documents, the Administrative Agent Fee
Letter, the Joint Fee Letter, the Collateral Documents, any subordination agreements which purport to subordinate the Subordinated Debt to the Obligations and any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.7 .
“ Loan Notice ” means a notice of (a) a Borrowing of Loans, (b) a conversion of Loans from one Type to the other, or (c) a continuation
of LIBOR Loans, in each case pursuant to Section 2.2(a) , which, if in writing, shall be substantially in the form of Exhibit D . “ Loan Party ” means the Company and each Subsidiary. “ London Banking Day ” means any day on which dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market. “ Mandatory Repayment Event ” - see Section 6.2.2(a) . “ Margin Stock ” means any “margin stock” as defined in Regulation U. “ Material Adverse Effect ” means (i) a material adverse effect on the property, business, operations, financial condition, liabilities or
capitalization of the Company and its Subsidiaries, taken as a whole, (ii) a material adverse effect on the ability of the Loan Parties to perform their collective obligations under the Loan Documents taken as a whole, or (iii) a material adverse effect on the rights and remedies of the Administrative Agent, the Issuing Lenders or the Lenders under the Loan Documents.
“ Maturity Date ” means October 2, 2017. “ Minimum Collateral Amount ” means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances
provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 103% of the Fronting Exposure of the Issuing Lenders with respect to Letters of Credit issued and outstanding at such time, (ii) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.7(a)(i), (a)(ii) or (a)(iii) , an amount equal to 103% of the Outstanding Amount of all L/C Obligations, and (iii) otherwise, an amount determined by the Administrative Agent and the Issuing Lenders in their sole discretion.
“ MLPFS ” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, in its capacity as a joint lead arranger and a joint book
manager. “ Mortgage ” means a mortgage, deed of trust, leasehold mortgage or similar instrument granting the Administrative Agent a Lien on
real property of any Loan Party.
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“ Multiemployer Pension Plan ” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the Company or any
other member of the Controlled Group has any liability. “ Net Cash Proceeds ” means: (a) with respect to any Asset Disposition, the aggregate cash proceeds (including cash proceeds received pursuant to policies of
insurance or by way of deferred payment of principal pursuant to a note, installment receivable or otherwise, but only as and when received) received by any Loan Party pursuant to such Asset Disposition net of (i) the direct costs relating to such sale, transfer or other disposition (including sales commissions and legal, accounting and investment banking fees), (ii) taxes paid or reasonably estimated by the Company to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements), (iii) amounts required to be applied to the repayment of any Debt secured by a Lien on the asset subject to such Asset Disposition (other than the Loans), (iv) the pro rata portion of the aggregate cash proceeds therefrom (calculated without regard to this clause (a)(iv)) attributable to minority equity interests and not available for distribution to or for the account of any Loan Party as a result thereof and (v) any reserve for adjustment in respect of (a) the sale price of such asset or assets established in accordance with GAAP and (b) any liabilities associated with such asset or assets and retained by any Loan Party after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction; it being understood that “Net Cash Proceeds” shall include, without limitation, any cash or Cash Equivalent Investment received (1) upon the sale or other disposition of any non-cash consideration received by any Loan Party in any Asset Disposition and (2) upon the reversal (without the satisfaction of any applicable liabilities in cash in a corresponding amount) of any reserve described in clause (v) described above or, if such liabilities have not been satisfied in cash and such reserve not reversed within 365 days after such Asset Disposition, the amount of such reserve;
(b) with respect to any issuance of Capital Securities, the aggregate cash proceeds received by any Loan Party pursuant to such
issuance, net of the direct costs relating to such issuance (including sales and underwriters’ commissions and legal, accounting and investment banking fees); and
(c) with respect to any issuance of Debt, the aggregate cash proceeds received by any Loan Party pursuant to such issuance, net of
the direct costs of such issuance (including up-front, underwriters’ and placement fees, closing and commitment fees, and legal, accounting and investment banking fees).
“ Non-Consenting Lender ” — see Section 8.7(b) . “ Non-Defaulting Lender ” means, at any time, each Lender that is not a Defaulting Lender at such time. “ Non-U.S. Participant ” - see Section 7.6(d) . “ Non-Use Fee ” - see Section 5.1 .
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“ Non-Use Fee Rate ” - see the definition of Applicable Margin. “ Note ” or “ Notes ” means the Revolving Notes, the Swing Line Note and the Term Notes, individually or collectively, as appropriate. “ Obligations ” means all obligations (monetary (including any interest, fees and charges that accrue after the commencement by or
against the Company, any Loan Party or any Guarantor of any proceeding under any Debtor Relief Law naming such Person as the debtor in such proceeding, regardless of whether such interest, fees and charges are allowed claims in such proceeding) or otherwise) of the Company and each Guarantor under this Agreement and any other Loan Document including Attorney Costs and any reimbursement obligations of the Company and each Guarantor in respect of Letters of Credit and surety bonds, all Hedging Obligations under any Secured Hedging Agreement, and all Bank Product Obligations, all in each case howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due.
“ OFAC ” means the Office of Foreign Assets Control of the United States Department of the Treasury. “ Off -Balance Sheet Liabilities ” of a Person means, without duplication, (a) Receivables Facility Attributed Indebtedness and any
repurchase obligation or liability of such Person or any of its Subsidiaries with respect to Accounts or notes receivable sold by such Person or any of its Subsidiaries (calculated to include the unrecovered investment of purchasers or transferees of Accounts or any other obligation of such Person or such transferor to purchasers/transferees of interests in Accounts or notes receivable or the agent for such purchasers/transferees), (b) any liability of such Person or any of its Subsidiaries under any sale and leaseback transactions which do not create a liability on the consolidated balance sheet of such Person, (c) any liability of such Person or any of its Subsidiaries under any financing lease or so-called “synthetic” lease transaction, or (d) any obligations of such Person or any of its Subsidiaries arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the consolidated balance sheets of such Person and its Subsidiaries.
“ Operating Lease ” means any lease of (or other agreement conveying the right to use) any real or personal property by any Loan Party,
as lessee, other than any Capital Lease. “ Ordinary Course Capital Lease ” means a Capital Lease of computer systems, 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 Facility Management Agreements or Facility Leases.
“ Ordinary Course Equipment Lease ” means an Operating Lease of computer systems, 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 Facility Management Agreements or Facility Leases.
“ Ordinary Course Lease Termination ” means (i) the termination of an Ordinary Course Equipment Lease or an Ordinary Course
Capital Lease pursuant to either (a) the termination of
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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.
“ Ordinary Course Lease Termination Payments ” means 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.
“ Organization Documents ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or
equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“ Other Connection Taxes ” means, with respect to a Lender or the Administrative Agent, Taxes imposed as a result of a present or
former connection between such Person and the jurisdiction imposing such Tax (other than connections arising solely from such Person having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“ Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from
any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 8.7(b) ).
“ Outstanding Amount ” means (i) with respect to any Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of any Loans occurring on such date; and (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Company of Unreimbursed Amounts.
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“ Participant Register ” has the meaning specified in Section 15.6.4 . “ PBGC ” means the Pension Benefit Guaranty Corporation and any entity succeeding to any or all of its functions under ERISA. “ Participant ” - see Section 15.6.4 . “ Pension Plan ” means a “pension plan”, as such term is defined in Section 3(2) of ERISA, which is subject to Title IV of ERISA or the
minimum funding standards of Section 303 of ERISA (other than a Multiemployer Pension Plan), and as to which the Company or any member of the Controlled Group has any liability, including any liability by reason of having been a substantial employer within the meaning of Section 4063 of ERISA at any time during the preceding five years, or by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA.
“ Permitted Acquisition ” means an Acquisition by the Company or a Guarantor which meets the requirements set forth in Section 11.4
(a) of this Agreement. “ Permitted Lien ” means a Lien expressly permitted hereunder pursuant to Section 11.2 . “ Person ” means any natural person, corporation, partnership, trust, limited liability company, association, governmental authority or
unit, or any other entity, whether acting in an individual, fiduciary or other capacity. “ Pro Forma Basis ” means, for purposes of calculating compliance with the financial covenants set forth in Section 11.13 (including for
purposes of determining the Applicable Margin) or with any test or covenant hereunder in respect of an Asset Disposition, Acquisition, incurrence or repayment of Debt or Restricted Payment, that any Asset Disposition, Acquisition, incurrence or repayment of Debt or Restricted Payment shall be deemed to have occurred as of the first day of the most recent Computation Period preceding the date of such transaction for which the Company was required to deliver financial statements pursuant to Section 10.1.1 or 10.1.2 . In connection with the foregoing, (i)(a) with respect to any Asset Disposition, income statement and cash flow statement items (whether positive or negative) attributable to the property disposed of shall be excluded to the extent relating to any period occurring prior to the date of such transaction and (b) with respect to any Acquisition, income statement items attributable to the Person or property acquired shall be included to the extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise included in such income statement items for the Company and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1 and (B) such items are supported by financial statements or other information satisfactory to the Administrative Agent and (ii) any Debt incurred or assumed by the Company or any Subsidiary (including the Person or property acquired) in connection with such transaction (A) shall be deemed to have been incurred as of the first day of the applicable period and (B) if such Debt has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Debt as at the relevant date of determination.
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“ Pro Rata Share ” means with respect to any Lender at any time, (a) with respect to such Lender’s Revolving Commitment at any time,
the percentage of the Aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at such time, subject to adjustment as provided in Section 2.8 ; provided that if the commitment of each Lender to make Revolving Loans and the obligation of the Issuing Lenders to make L/C Credit Extensions have been terminated pursuant to Section 13.2 or if the Aggregate Revolving Commitments have expired, then the Pro Rata Share of each Lender shall be determined based on the Pro Rata Share of such Lender most recently in effect, giving effect to any subsequent assignments, and (b) with respect to such Lender’s portion of the outstanding Term Loan at any time, the percentage of the outstanding principal amount of the Term Loan held by such Lender at such time. The initial Pro Rata Share of each Lender is set forth opposite the name of such Lender on Annex A or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
“ Receivables Facility Attributed Indebtedness ” means the amount of obligations outstanding under a receivables purchase facility on
any date of determination that would be characterized as principal if such facility were structured as a secured lending transaction rather than as a purchase.
“ Regulation U ” means Regulation U of the FRB. “ Related Parties ” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents,
trustees, administrators, managers, representatives and advisors of such Person and of such Person’s Affiliates. “ Replacement Lender ” - see Section 8.7(b) . “ Reportable Event ” means a reportable event as defined in Section 4043(c) of ERISA and the regulations issued thereunder as to
which the PBGC has not waived the notification requirement of Section 4043(a). “ Required Lenders ” means, at any time, Lenders holding in the aggregate more than 50% of (a) the unfunded Commitments, the
outstanding Loans, L/C Obligations and participations therein or (b) if the Commitments have been terminated, the outstanding Loans, L/C Obligations and participations therein. The unfunded Commitments of, and the outstanding Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders; provided that, the amount of any participation in any Swing Line Loan and Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the Swing Line Lender or the applicable Issuing Lender, as the case may be, in making such determination.
“ Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to any
Capital Securities of any Loan Party or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
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cancellation or termination of any such Capital Securities or on account of any return of capital to the Company’s stockholders, partners or members (or the equivalent Person thereof).
“ Revolving Commitment ” means, as to each Lender, its obligation to (a) make Revolving Loans to the Company pursuant to
Section 2.1 , (b) purchase participations in L/C Obligations and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Annex A or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
“ Revolving Credit Exposure ” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding
Revolving Loans and such Lender’s participation in L/C Obligations and Swing Line Loans at such time. “ Revolving Loan ” - see Section 2.1 . “ Revolving Loan Availability ” means, at any time, the Aggregate Revolving Commitments less the sum of Revolving Outstandings. “ Revolving Note ” means a promissory note substantially in the form of Exhibit A-1 . “ Revolving Outstandings ” means, at any time, the aggregate Outstanding Amount of all Revolving Loans, all Swing Line Loans and
all L/C Obligations. “ Sanctions ” means any international economic sanction administered or enforced by the United States government (including, without
limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury or other relevant sanctions authority. “ SEC ” means the Securities and Exchange Commission or any other governmental authority succeeding to any of the principal
functions thereof. “ Secured Bank Product Agreement ” means any Bank Product Agreement between the Company or any Guarantor, on the one hand,
and any Bank Product Provider, on the other hand; provided , however , for any of the foregoing to be included as a “Secured Bank Product Agreement” on any date of determination by the Administrative Agent, the applicable Bank Product Provider (other than the Administrative Agent or any Affiliate thereof) must have delivered written notice thereof, in form and substance satisfactory to the Administrative Agent, to the Administrative Agent prior to such date of determination.
“ Secured Hedging Agreement ” means any Hedging Agreement permitted under Section 11.1(d) between the Company or any
Guarantor, on the one hand, and any Hedging Agreement Bank, on the other hand; provided , however , for any of the foregoing to be included as a “Secured Hedging Agreement” on any date of determination by the Administrative Agent, the applicable Hedging Agreement Bank (other than the Administrative Agent or any Affiliate thereof) must have delivered written notice thereof, in form and substance satisfactory to the Administrative Agent, to the Administrative Agent prior to such date of determination.
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“ Senior Officer ” means, with respect to any Loan Party, any of the chief executive officer, the chief financial officer and treasurer, the
general counsel and secretary or the corporate controller of such Loan Party. “ Solvent ” when used with respect to any Person, means that, as of any date of determination, (a) the amount of the “fair saleable
value” of the assets of such Person will, as of such date, exceed (i) the value of all “liabilities of such Person, including contingent and other liabilities”, as of such date, as such quoted terms are generally determined in accordance with applicable federal laws governing determinations of the insolvency of debtors, and (ii) the amount that will be required to pay the probable liabilities of such Person on its existing debts (including contingent liabilities) as such debts become absolute and matured, (b) such Person will not have, as of such date, an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged following such date, and (c) such Person will be able to pay its liabilities, including contingent and other liabilities, as they mature. For purposes of this definition, (a) “not have an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged” and “able to pay its liabilities, including contingent and other liabilities, as they mature” means that such Person will be able to generate enough cash from operations, asset dispositions or refinancing, or a combination thereof, to meet its obligations as they become due and (b) “Person” means any individual, sole proprietorship, general partnership, limited partnership, limited liability company, joint venture, trust, unincorporated association, corporation, governmental authority or other entity or group (which term will include a “group” as such term is defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended).
“ Special Payment ” means any Restricted Payment made by the Company which is in compliance with all of the following
requirements:
(i) such Restricted Payment shall not be made before the end of the first five (5) full Fiscal Quarters ending after the Closing Date;
(ii) immediately before and after giving effect to any such Restricted Payment, no Event of Default or Unmatured Event
of Default shall exist; and (iii) on a Pro Forma Basis after giving effect to any such Restricted Payment, (A) the Total Debt to EBITDA Ratio is less
than (x) 3.25 to 1.0, for any such Restricted Payment made before September 30, 2016 or (y) 3.00 to 1.0, for any such Restricted Payment made on or after September 30, 2016 and (B) the Company is in compliance with the financial covenant set forth in Section 11.13.1 .
“ Subordinated Debt ” means, for any Person, any Debt of such Person which is fully subordinated to all Obligations, by written
agreements and documents in form and substance satisfactory to the Required Lenders and which is governed by terms and provisions, including without limitation maturities, covenants, defaults, rates and fees, acceptable to the Administrative Agent and the Required Lenders.
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“ Subordinated Debt Documents ” means any agreement or document evidencing or relating to any Subordinated Debt, in each case, as
the same may be amended, restated, modified or supplemented and in effect from time to time as permitted by the terms hereof. “ Subsidiary ” means, with respect to any Person, a corporation, partnership, limited liability company or other entity of which such
Person owns, directly or indirectly, such number of outstanding Capital Securities as have more than 50% of the ordinary voting power for the election of directors or other managers of such corporation, partnership, limited liability company or other entity. Unless the context otherwise requires, each reference to Subsidiaries herein shall be a reference to Subsidiaries of the Company.
“ Swing Line Lender ” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender
hereunder. “ Swing Line Loan ” - see Section 2.4. “ Swing Line Note ” means a promissory note substantially in the form of Exhibit A-2 . “ Swing Line Sublimit ” means an amount equal to the lesser of (a) $20,000,000 and (b) the Aggregate Revolving Commitments. The
Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments. “ Syndication Agent ” means Wells and JPM in their respective capacities as syndication agent for the Lenders hereunder and any
successor thereto in such capacity. “ Target Companies ” has the meaning set forth in the Central Parking Acquisition Agreement. “ Taxes ” means any and all present and future taxes, duties, levies, imposts, deductions, assessments, charges or withholdings, and any
and all liabilities (including interest and penalties and other additions to taxes) with respect to the foregoing. “ Termination Event ” means, with respect to a Pension Plan, (a) the occurrence of a Reportable Event, (b) the withdrawal of Company
or any other member of the Controlled Group from such Pension Plan during a plan year in which Company or any other member of the Controlled Group was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, (c) the termination of such Pension Plan, the filing of a notice of intent to terminate the Pension Plan or the treatment of an amendment of such Pension Plan as a termination under Section 4041 of ERISA, (d) the institution by the PBGC of proceedings to terminate such Pension Plan or (e) the occurrence of any event or condition that constitutes grounds under Section 4042 of ERISA for the termination of, or appointment of a trustee to administer, such Pension Plan.
“ Term Loan ” has the meaning specified in Section 2.1(b) . “ Term Loan Commitment ” means, as to each Lender, its obligation to make its portion of the Term Loan to the Company pursuant to
Section 2.1(b) , in the principal amount set forth opposite such Lender’s name on Annex A . The aggregate principal amount of the Term Loan
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Commitments of all of the Lenders as in effect on the Closing Date is TWO HUNDRED AND FIFTY MILLION DOLLARS ($250,000,000).
“ Term Note ” means a promissory note substantially in the form of Exhibit A-3 . “ Total Assets ” shall mean, at any time, the consolidated assets of the Company and its Subsidiaries, determined in accordance with
GAAP. “ Total Debt ” means all Debt of the Company and its Subsidiaries, determined on a consolidated basis in accordance with GAAP,
excluding (a) contingent obligations in respect of Contingent Liabilities (except to the extent constituting Contingent Liabilities in respect of Debt of a Person other than any Loan Party and except for any Contingent Liabilities in respect of Disqualified Stock of the Company or any of its Subsidiaries), (b) Hedging Obligations, (c) obligations to pay Earnouts, (d) Off-Balance Sheet Liabilities and (e) Debt of the Company to Subsidiaries and Debt of Subsidiaries to the Company or to other Subsidiaries.
“ Total Debt to EBITDA Ratio ” means, as of any date of determination, the ratio of (a) the total of (i) Total Debt outstanding as of such
day minus (ii) Debt of the Company and its Subsidiaries under Letters of Credit outstanding as of such day, in an aggregate amount not to exceed $75,000,000 to (b) EBITDA for the Computation Period most recently ended.
“ Total Plan Liability ” means, at any time, the present value of all vested and unvested accrued benefits under all Pension Plans,
determined as of the then most recent valuation date for each Pension Plan, using each such Pension Plan’s applicable actuarial assumptions. “ Transactions ” means, collectively, (a) the execution, delivery and performance by the Loan Parties of the Loan Documents to which
they are a party and the making of the Credit Extensions hereunder, (b) the repayment of all amounts due or outstanding under or in respect of the Existing Credit Agreements and the termination of, the Existing Credit Agreements and (c) the consummation of the Central Parking Acquisition.
“ Type ” means, with respect to any Loan, its character as a Base Rate Loan or a LIBOR Loan. “ UCC ” is defined in the Guaranty and Collateral Agreement. “ UCP ” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International
Chamber of Commerce (“ ICC ”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance). “ Unfinanced Capital Expenditures ” means Capital Expenditures which are incurred and not financed with Debt (other than Revolving
Loans). “ Unfunded Liability ” means the amount (if any) by which the present value of all vested and unvested accrued benefits under all
Pension Plans exceeds the fair market value of all assets allocable to those benefits, all determined as of the then most recent valuation date for each Pension Plan, using each such Pension Plan’s applicable actuarial assumptions.
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“ Unmatured Event of Default ” means any event that, if it continues uncured, will, with lapse of time or notice or both, constitute an
Event of Default. “ Unreimbursed Amount ” - see Section 2.3.3(a) . “ Voting Stock ” means any class of Capital Securities, the holders of which are at the time entitled, as such holders, to vote for the
election of a majority of the directors (or persons performing similar functions) of the corporation, association, trust or other business entity involved, whether or not the right so to vote exists by reason of the happening of a contingency.
“ Wells ” means as set forth in the Preamble . “ WFS ” means Wells Fargo Securities, LLC, in its capacity as joint lead arranger and joint book manager. “ Withholding Certificate ” - see Section 7.6(d) . “ Wholly-Owned Domestic Subsidiary ” means each Wholly-Owned Subsidiary that is a Domestic Subsidiary. “ Wholly-Owned Subsidiary ” means, as to any Person, a Subsidiary all of the Capital Securities of which (except directors’ qualifying
Capital Securities) are at the time directly or indirectly owned by such Person and/or another Wholly-Owned Subsidiary of such Person. 1.2. Other Interpretive Provisions . (a) The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms. Whenever the
context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. (b) Section, Annex, Schedule and Exhibit references are to this Agreement unless otherwise specified. Section headings herein
and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(c) The term “including” is not limiting and means “including without limitation.” The word “will” shall be construed to have the
same meaning and effect as the word “shall.” (d) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and
including”; the words “to” and “until” each mean “to but excluding”, and the word “through” means “to and including.” (e) Unless otherwise expressly provided herein, (i) references to agreements (including this Agreement and the other Loan
Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, supplements and other modifications thereto, but only to the extent such amendments, restatements, supplements and other modifications are not prohibited by the terms of any Loan Document, and (ii) references to any statute or regulation shall be construed as including all statutory and regulatory provisions
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amending, replacing, supplementing or interpreting such statute or regulation. Unless the context requires otherwise, (i) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (ii) the words “hereto”, “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, and (iii) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all real and personal property and tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
(f) This Agreement and the other Loan Documents may use several different limitations, tests or measurements to regulate the
same or similar matters. All such limitations, tests and measurements are cumulative and each shall be performed in accordance with its terms. (g) This Agreement and the other Loan Documents are the result of negotiations among and have been reviewed by counsel to the
Administrative Agent, the Company, the Lenders and the other parties thereto and are the products of all parties. Accordingly, they shall not be construed against the Administrative Agent, the Issuing Lenders or the Lenders merely because of the Administrative Agent’s or Lenders’ involvement in their preparation.
(h) Unless otherwise specified, all references herein to times of day shall be references to Central time (daylight or standard, as
applicable).
SECTION 2.
COMMITMENTS OF THE LENDERS; BORROWING, CONVERSION AND LETTER OF CREDIT PROCEDURES
2.1. Commitments . (a) Revolving Loans . Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such
loan, a “ Revolving Loan ”) to the Company in Dollars from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Commitment; provided , however , that after giving effect to any Borrowing of Revolving Loans, (i) the Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment. Within the limits of each Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Company may borrow under this Section 2.1 , prepay under Section 6.2 , and reborrow under this Section 2.1 . Revolving Loans may be Base Rate Loans or LIBOR Loans, as further provided herein.
(b) Term Loan . Subject to the terms and conditions set forth herein, each Lender severally agrees to make its portion of a term
loan (the “ Term Loan ”) to the Company in Dollars on the Closing Date in an amount not to exceed such Lender’s Term Loan Commitment.
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Amounts repaid on the Term Loan may not be reborrowed. It is understood and agreed that the Term Loan shall be advanced in a single drawing on the Closing Date. The Term Loan may consist of Base Rate Loans or LIBOR Loans or a combination thereof, as further provided herein.
2.2. Borrowing Procedures . (a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of LIBOR Loans shall be made
upon the Company’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than 12:00 p.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of, LIBOR Loans or of any conversion of LIBOR Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans. Each telephonic notice by the Company pursuant to this Section 2.2(a) must be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice, appropriately completed and signed by a Senior Officer of the Company. Each Borrowing of, conversion to or continuation of LIBOR Loans shall be in a principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof. Except as provided in Sections 2.3.3 and 2.4.3 , each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $250,000 or a whole multiple of $50,000 in excess thereof. Each Loan Notice (whether telephonic or written) shall specify (i) whether the Company is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of LIBOR Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Company fails to specify a Type of a Loan in a Loan Notice or if the Company fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable LIBOR Loans. If the Company requests a Borrowing of, conversion to, or continuation of LIBOR Loans in any Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Pro Rata
Share of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Company, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans as described in the preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 2:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 12.2 (and, if such Borrowing is the initial Credit Extension, Sections 12.1 ), the Administrative Agent shall make all funds so received available to the Company in like funds as received by the Administrative Agent either by (i) crediting the account of the Company on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Company; provided , however , that if, on the date of a Borrowing of Revolving
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Loans, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings and second , shall be made available to the Company as provided above.
(c) Except as otherwise provided herein, a LIBOR Loan may be continued or converted only on the last day of the Interest Period
for such LIBOR Loan. During the existence of an Unmatured Event of Default or Event of Default, no Loans may be requested as LIBOR Loans without the consent of the Required Lenders. During the existence of an Unmatured Event of Default or Event of Default, after written notice thereof to the Company by the Administrative Agent at the direction of the Required Lenders, no Loans may be converted to or continued as LIBOR Loans without the consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the Company and the Lenders of the interest rate applicable to any Interest
Period for LIBOR Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Company and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as
the same Type, there shall not be more than six (6) Interest Periods in effect with respect to all Loans. 2.3. Letters of Credit .
2.3.1. Letter of Credit Commitment .
(a) Subject to the terms and conditions set forth herein, (i) the Issuing Lenders agree, in reliance upon the agreements of the Lenders set forth in this Section 2.3 , (A) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit in Dollars for the account of the Company or any of its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (B) to honor drawings under the Letters of Credit; and (ii) the Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its Subsidiaries and any drawings thereunder, as applicable; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the
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Company’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. Furthermore, each Lender with a Revolving Commitment acknowledges and confirms that it has a participation interest in the liability of the applicable Issuing Lender under the Existing Letters of Credit in a percentage equal to its Pro Rata Share of the Revolving Loans. The Company’s reimbursement obligations in respect of the Existing Letters of Credit, and each Lender’s obligations in connection therewith, shall be governed by the terms of this Agreement.
(b) The Issuing Lenders shall not issue any Letter of Credit if:
(i) subject to Section 2.3.2(c) , the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(ii) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration
Date, unless all the Lenders have approved such expiry date or the Company has Cash Collateralized or otherwise secured its obligations with respect thereto to the satisfaction of the applicable Issuing Lender in its reasonable discretion.
(c) The Issuing Lenders shall not be under any obligation to issue any Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the applicable Issuing Lender from issuing such Letter of Credit, or any Law applicable to such Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the applicable Issuing Lender shall prohibit, or request that the applicable Issuing Lender refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the applicable Issuing Lender with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the applicable Issuing Lender is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the applicable Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the applicable Issuing Lender in good faith deems material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the applicable Issuing
Lender applicable to borrowers generally;
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(iii) except as otherwise agreed by the Administrative Agent and the applicable Issuing Lender, such
Letter of Credit is in an initial stated amount less than $100,000; (iv) such Letter of Credit is to be denominated in a currency other than Dollars; or (v) any Lender is at that time a Defaulting Lender, unless the applicable Issuing Lender has entered
into arrangements, including the delivery of Cash Collateral, reasonably satisfactory to such Issuing Lender with the Company or such Lender to eliminate such Issuing Lender’s actual or potential Fronting Exposure (after giving effect to Section 2.8(a)(iv )) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such Issuing Lender has actual or potential Fronting Exposure, as it may elect in its reasonable discretion.
(d) The applicable Issuing Lender shall be under no obligation to amend any Letter of Credit if (A) the Issuing
Lender would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(e) The applicable Issuing Lender shall not amend any Letter of Credit if the such Issuing Lender would not be
permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.
2.3.2. Procedures .
(a) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Company delivered to the applicable Issuing Lender (with a copy to the Administrative Agent) in the form of an L/C Application, appropriately completed and signed by a Senior Officer of the Company. Such L/C Application may be sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the applicable Issuing Lender, by personal delivery or by any other means acceptable to such Issuing Lender. Such L/C Application must be received by the applicable Issuing Lender and the Administrative Agent not later than 12:00 p.m. at least three (3) Business Days (or such later date and time as the Administrative Agent and the applicable Issuing Lender may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such L/C Application shall specify in form and detail satisfactory to the applicable Issuing Lender: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full
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text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the applicable Issuing Lender may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such L/C Application shall specify in form and detail reasonably satisfactory to the applicable Issuing Lender (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the applicable Issuing Lender may require. Additionally, the Company shall furnish to the applicable Issuing Lender and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the applicable Issuing Lender or the Administrative Agent may reasonably require.
(b) Promptly after receipt of any L/C Application, the applicable Issuing Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such L/C Application from the Company and, if not, the applicable Issuing Lender will provide the Administrative Agent with a copy thereof. Unless the applicable Issuing Lender has received written notice from any Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Section 12 shall not be satisfied, then, subject to the terms and conditions hereof, the applicable Issuing Lender shall, on the requested date, issue a Letter of Credit for the account of the Company or the applicable Subsidiary or enter into the applicable amendment, as the case may be, in each case in accordance with the applicable Issuing Lender’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable Issuing Lender a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such Letter of Credit. Each Lender hereby irrevocably and unconditionally agrees to purchase from the Issuing Lenders with respect to the Existing Letters of Credit, as applicable, a risk participation in each Existing Letter of Credit in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such Existing Letter of Credit.
(c) If the Company so requests in any applicable L/C Application, the applicable Issuing Lender may, in its sole
and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”); provided that any such Auto-Extension Letter of Credit must permit the applicable Issuing Lender to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “ Non-Extension Notice Date ”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the applicable Issuing Lender, the Company shall not be required to make a specific request to the applicable Issuing Lender for any such extension.
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Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) the applicable Issuing Lender to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided , however , that the applicable Issuing Lender shall not permit any such extension if (i) such Issuing Lender has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (b) or (c) of Section 2.3.1 or otherwise), or (ii) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (A) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (B) from the Administrative Agent, any Lender or the Company that one or more of the applicable conditions specified in Section 12.2 is not then satisfied, and in each case directing the applicable Issuing Lender not to permit such extension.
(d) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising
bank with respect thereto or to the beneficiary thereof, the applicable Issuing Lender will also deliver to the Company and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
2.3.3. Drawings and Reimbursements; Funding of Participations .
(a) Upon receipt from the beneficiary of any Letter of Credit of any notice of drawing under such Letter of Credit, the applicable Issuing Lender shall notify the Company and the Administrative Agent thereof. Not later than 12:00 p.m. on the date of any payment by the applicable Issuing Lender under a Letter of Credit (or, if such payment by the applicable Issuing Lender is made after 12:00 p.m., not later than 10:00 a.m. the next succeeding Business Day) (each such date, an “ Honor Date ”), the Company shall reimburse the applicable Issuing Lender through the Administrative Agent in an amount equal to the amount of such drawing. If the Company fails to so reimburse the applicable Issuing Lender by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the “ Unreimbursed Amount ”), and the amount of such Lender’s Pro Rata Share thereof. In such event, the Company shall be deemed to have requested a Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.2(a) for the principal amount of Base Rate Loans, but subject to the conditions set forth in Section 12.2 and provided that, after giving effect to such Borrowing, the Revolving Outstandings shall not exceed the Aggregate Revolving Commitments. Any notice given by the applicable Issuing Lender or the Administrative Agent pursuant to this Section 2.3.3(a) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
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(b) Each Lender shall upon any notice pursuant to Section 2.3.3(a) make funds available (and the
Administrative Agent may apply Cash Collateral provided for this purpose) to the Administrative Agent for the account of the applicable Issuing Lender at the Administrative Agent’s Office in an amount equal to its Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.3.3(c) , each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Company in such amount. The Administrative Agent shall remit the funds so received to the applicable Issuing Lender.
(c) With respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing of Base Rate Loans
because the conditions set forth in Section 12.2 cannot be satisfied or for any other reason, the Company shall be deemed to have incurred from the applicable Issuing Lender an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lender’s payment to the Administrative Agent for the account of the applicable Issuing Lender pursuant to Section 2.3.3(b) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.3.3 .
(d) Until each Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.3.3 to reimburse the
applicable Issuing Lender for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Pro Rata Share of such amount shall be solely for the account of the applicable Issuing Lender.
(e) Each Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the applicable Issuing
Lender for amounts drawn under Letters of Credit, as contemplated by this Section 2.3.3 , shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the applicable Issuing Lender, the Company or any other Person for any reason whatsoever; (ii) the occurrence or continuance of an Unmatured Event of Default or Event of Default, or (iii) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Lender’s obligation to make Revolving Loans pursuant to this Section 2.3.3 is subject to the conditions set forth in Section 12.2 . No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Company to reimburse the applicable Issuing Lender for the amount of any payment made by the applicable Issuing Lender under any Letter of Credit, together with interest as provided herein.
(f) If any Lender fails to make available to the Administrative Agent for the account of the applicable Issuing
Lender any amount required to be paid
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by such Lender pursuant to the foregoing provisions of this Section 2.3.3 by the time specified in Section 2.3.3(b) , then, without limiting the other provisions of this Agreement, the applicable Issuing Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the applicable Issuing Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A certificate of the applicable Issuing Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (f) shall be conclusive absent manifest error.
2.3.4. Repayment of Participations .
(a) At any time after the applicable Issuing Lender has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.3.3 , if the Administrative Agent receives for the account of the applicable Issuing Lender any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Company or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Pro Rata Share thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in the same funds as those received by the Administrative Agent.
(b) If any payment received by the Administrative Agent for the account of an Issuing Lender pursuant to
Section 2.3.3(a) is required to be returned under any of the circumstances described in Section 15.24 (including pursuant to any settlement entered into by such Issuing Lender), each Lender shall pay to the Administrative Agent for the account of such Issuing Lender its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
2.3.5. Obligations Absolute . The obligation of the Company to reimburse the applicable Issuing Lender for each drawing under each Letter of Credit and to
repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(a) any lack of validity or enforceability of such Letter of Credit, this Agreement or any other Loan Document;
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(b) the existence of any claim, counterclaim, setoff, defense or other right that the Company or any Subsidiary
may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the applicable Issuing Lender or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(c) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(d) waiver by an Issuing Lender of any requirement that exists for the Issuing Lenders’ protection and not the
protection of the Company or any waiver by an Issuing Lender which does not in fact materially prejudice the Company; (e) honor of a demand for payment presented electronically even if such Letter of Credit requires that demand
be in the form of a draft; (f) any payment made by an Issuing Lender in respect of an otherwise complying item presented after the date
specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the ISP or the UCP, as applicable;
(g) any payment by the applicable Issuing Lender under such Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by such Issuing Lender under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or
(h) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including
any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Company or any Subsidiary.
The Company shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Company’s instructions or other irregularity, the Company will immediately notify the applicable Issuing Lender. The Company shall be conclusively deemed to have waived any such claim against the applicable Issuing Lender and its correspondents unless such notice is given as aforesaid.
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2.3.6. Role of Issuing Lenders .
Each Lender and the Company agree that, in paying any drawing under a Letter of Credit, the Issuing Lenders shall not have
any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of any Issuing Lender, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any Issuing Lender shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document, as applicable. The Company hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided , however , that this assumption is not intended to, and shall not, preclude the Company’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of any Issuing Lender, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any Issuing Lender shall be liable or responsible for any of the matters described in clauses (a) through (h) of Section 2.3.5 ; provided , however , that anything in such clauses to the contrary notwithstanding, the Company may have a claim against an Issuing Lender, and such Issuing Lender may be liable to the Company, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Company which the Company proves were caused by such Issuing Lender’s willful misconduct or gross negligence (in each case as finally determined by a court of competent jurisdiction) or such Issuing Lender’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit unless such Issuing Lender is prevented or prohibited from so paying as a result of any order or directive of any court or other Governmental Authority. In furtherance and not in limitation of the foregoing, each Issuing Lender may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and no Issuing Lender shall be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. Each Issuing Lender may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“ SWIFT ”) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.
2.3.7. Applicability of ISP . Unless otherwise expressly agreed by the applicable Issuing Lender and the Company when a Letter of Credit is issued
(including any such agreement applicable to an Existing Letter of Credit), the rules of the ISP shall apply to each Letter of Credit. Notwithstanding the foregoing, the Issuing Lenders shall not be responsible to the Company for, and the Issuing Lenders’ rights and remedies against the Company shall
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not be impaired by, any action or inaction of the Issuing Lenders required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where an Issuing Lender or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.
2.3.8. Conflict with Issuer Documents . In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control. 2.3.9. Letters of Credit Issued for Subsidiaries . Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, the Company shall be obligated to reimburse the applicable Issuing Lender hereunder for any and all drawings under such Letter of Credit. The Company hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Company, and that the Company’s business derives substantial benefits from the businesses of such Subsidiaries.
2.3.10. Letter of Credit Amounts . Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such
Letter of Credit in effect at such time; provided , however , that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
2.4. Swing Line Facility .
2.4.1. Swing Line Facility . Subject to the terms and conditions set forth herein, the Swing Line Lender may, in its sole discretion and in reliance upon the
agreements of the other Lenders set forth in this Section 2.4 , make loans (each such loan, a “ Swing Line Loan ”) to the Company in Dollars from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Pro Rata Share of the Outstanding Amount of Revolving Loans and L/C Obligations of the Swing Line Lender in its capacity as a Lender of Revolving Loans, may exceed the amount of such Lender’s Revolving Commitment; provided , however , that after giving
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effect to any Swing Line Loan, (i) the Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment, and provided , further , that (i) the Company shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan and (ii) the Swing Line Lender shall not be under any obligation to make any Swing Line Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, the Company may borrow under this Section 2.4 , prepay under Section 6.2 , and reborrow under this Section 2.4 . Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Pro Rata Share times the amount of such Swing Line Loan.
2.4.2. Borrowing Procedures . Each Borrowing of Swing Line Loans shall be made upon the Company’s irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum principal amount of $250,000 and integral multiples of $100,000 in excess thereof, and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Loan Notice, appropriately completed and signed by a Senior Officer of the Company. Promptly after receipt by the Swing Line Lender of any telephonic Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Borrowing of Swing Line Loans (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.4.1 , or (B) that one or more of the applicable conditions specified in Section 12 is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Loan Notice, make the amount of its Swing Line Loan available to the Company.
2.4.3. Refinancing of Swing Line Loans .
(a) The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Company (which hereby irrevocably
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requests and authorizes the Swing Line Lender to so request on its behalf), that each Lender make a Base Rate Loan in an amount equal to such Lender’s Pro Rata Share of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.2 , without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the conditions set forth in Section 12.2 and provided that, after giving effect to such Borrowing, the Revolving Outstandings shall not exceed the Aggregate Revolving Commitments. The Swing Line Lender shall furnish the Company with a copy of the applicable Loan Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall make an amount equal to its Pro Rata Share of the amount specified in such Loan Notice available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of the Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.4.3(b) , each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Company in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.
(b) If for any reason any Swing Line Loan cannot be refinanced by such a Borrowing of Revolving Loans in
accordance with Section 2.4.3(a) , the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.4.3(a) shall be deemed payment in respect of such participation.
(c) If any Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender
any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.4.3 by the time specified in Section 2.4.3(a) , the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation. A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (c) shall be conclusive absent manifest error.
(d) Each Lender’s obligation to make Revolving Loans or to purchase and fund risk participations in Swing
Line Loans pursuant to this Section 2.4.3 shall be absolute and unconditional and shall not be affected by any circumstance, including (i) any setoff, counterclaim, recoupment, defense or other right that
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such Lender may have against the Swing Line Lender, the Company or any other Person for any reason whatsoever, (ii) the occurrence or continuance of an Unmatured Event of Default or Event of Default or (ii) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , however , that each Lender’s obligation to make Revolving Loans pursuant to this Section 2.4.3 is subject to the conditions set forth in Section 12.2 . No such purchase or funding of risk participations shall relieve or otherwise impair the obligation of the Company to repay Swing Line Loans, together with interest as provided herein.
2.4.4. Repayment of Participations .
(a) At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Pro Rata Share of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s risk participation was funded) in the same funds as those received by the Swing Line Lender.
(b) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line
Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 15.24 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Pro Rata Share thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
2.4.5. Interest for Account of Swing Line Lender . The Swing Line Lender shall be responsible for invoicing the Company for interest on the Swing Line Loans. Until each
Lender funds its Revolving Loans that are Base Rate Loans or risk participation pursuant to this Section 2.4 to refinance such Lender’s Pro Rata Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall be solely for the account of the Swing Line Lender.
2.4.6. Payments Directly to Swing Line Lender . The Company shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line
Lender.
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2.5. Commitments Several .
The failure of any Lender to make a requested Loan on any date shall not relieve any other Lender of its obligation (if any) to make a
Loan on such date, but no Lender shall be responsible for the failure of any other Lender to make any Loan to be made by such other Lender. 2.6. Certain Conditions .
Except as otherwise provided in Sections 2.3.3(e) and 2.4.3 of this Agreement, no Lender shall have an obligation to make any Loan, or to permit the continuation of or any conversion into any LIBOR Loan, and the Issuing Lenders shall not have any obligation to issue any Letter of Credit, if an Event of Default or Unmatured Event of Default exists.
2.7. Cash Collateral . (a) Certain Credit Support Events . If (i) an Issuing Lender has honored any full or partial drawing request under any Letter of
Credit and such drawing has resulted in an L/C Borrowing, (ii) as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, (iii) the Company shall be required to provide Cash Collateral pursuant to Section 13.2 , or (iv) there shall exist a Defaulting Lender, the Company shall immediately (in the case of clause (iii) above) or within one Business Day (in all other cases) following any request by the Administrative Agent or the applicable Issuing Lender, provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iv) above, after giving effect to Section 2.8(a)(iv) and any Cash Collateral provided by the Defaulting Lender).
(b) Grant of Security Interest . The Company, and to the extent provided by any Defaulting Lender, such Defaulting Lender,
hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the Issuing Lenders and the Lenders, and agrees to maintain, a first priority security interest in all such Cash Collateral, and in all proceeds of such Cash Collateral, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.7(c) . If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or the Issuing Lenders as herein provided (other than Liens permitted by Section 11.2(d), (n) or (o)), or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Company will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America. The Company shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.
(c) Application . Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of
this Section 2.7 or Sections 2.3 , 2.4 , 2.8, 6.2 or 13.2 in respect of Letters of Credit shall be held and applied in satisfaction of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which
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the Cash Collateral was so provided, prior to any other application of such property as may be provided herein.
(d) Release . Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other
obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender) (or, as appropriate, its assignee following compliance with Section 15.6.2.F ) or (ii) the determination by the Administrative Agent and the Issuing Lenders that there exists excess Cash Collateral; provided , however , (x) any such release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan Documents and the other applicable provisions of the Loan Documents, and (y) the Person providing Cash Collateral and the applicable Issuing Lender may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
2.8. Defaulting Lender . (a) Adjustments . Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting
Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:
(i) Waivers and Amendment . Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and in Section 15.1 .
(ii) Defaulting Lender Waterfall . Any payment of principal, interest, fees or other amount received by the
Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 13 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 7.4 , shall be applied at such time or times as may be determined by the Administrative Agent as follows: first , to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second , to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Lenders or Swing Line Lender hereunder; third , to Cash Collateralize the Issuing Lenders’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.7 ; fourth , as the Company may request (so long as no Unmatured Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth , if so determined by the Administrative Agent and the Company, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Issuing Lenders’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.7 ; sixth , to the payment of any amounts owing to the Lenders, the Issuing Lenders or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing
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Lender or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh , so long as no Unmatured Event of Default or Event of Default exists, to the payment of any amounts owing to the Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth , to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided , that , if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 12.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.8(a)(iv) . Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.8(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain Fees .
(A) No Defaulting Lender shall be entitled to receive any fee payable under Section 5.1 for any period during which that Lender is a Defaulting Lender (and the Company shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).
(B) Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that
Lender is a Defaulting Lender only to the extent allocable to its Pro Rata Share of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.7 .
(C) With respect to any fee payable under Section 5.1 or any Letter of Credit Fee not required to be paid to any
Defaulting Lender pursuant to clause (A) or (B) above, the Company shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations or Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the Issuing Lenders and Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Lenders’ or Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
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(iv) Reallocation of Pro Rata Shares to Reduce Fronting Exposure . All or any part of such Defaulting Lender’s
participation in L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Lender’s Revolving Commitment) but only to the extent that (x) the conditions set forth in Section 12.2 are satisfied at the time of such reallocation (and, unless the Company shall have otherwise notified the Administrative Agent at such time, the Company shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(v) Cash Collateral, Repayment of Swing Line Loans . If the reallocation described in clause (a)(iv) above cannot, or
can only partially, be effected, the Company shall, without prejudice to any right or remedy available to it hereunder or under applicable Law, (x) first, prepay Swing Line Loans in an amount equal to the Swing Line Lender’s Fronting Exposure and (y) second, Cash Collateralize the Issuing Lenders’ Fronting Exposure in accordance with the procedures set forth in Section 2.7 .
(b) Defaulting Lender Cure . If the Company, the Administrative Agent, the Swing Line Lender and the Issuing Lenders agree in
writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Pro Rata Shares (without giving effect to Section 2.8(a)(iv) ), whereupon such Lender will cease to be a Defaulting Lender; provided , that, no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Company while that Lender was a Defaulting Lender; provided , further , that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
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SECTION 3.
EVIDENCING OF LOANS
3.1. Notes .
The Loans of each Lender, including without limitation the Swing Line Lender, if requested by such Lender through the Administrative Agent, shall be evidenced by Notes, with appropriate insertions, payable to such Lender.
3.2. Recordkeeping .
The Administrative Agent, on behalf of each Lender, shall record in its records, the date and amount of each Loan made by each Lender, each repayment or conversion thereof and, in the case of each LIBOR Loan, the dates on which each Interest Period for such Loan shall begin and end, as well as evidence of the purchases and sales by Lenders of participations in Letters of Credit and Swing Line Loans. The aggregate unpaid principal amount so recorded shall be rebuttably presumptive evidence of the principal amount of the Loans owing and unpaid as well as of the purchases and sales by Lenders of participations in Letters of Credit and Swing Line Loans. The failure to so record any such amount or any error in so recording any such amount shall not, however, limit or otherwise affect the Obligations of the Company hereunder or under any Note to repay the principal amount of the Loans hereunder, together with all interest accruing thereon.
SECTION 4.
INTEREST
4.1. Interest Rates .
The Company promises to pay interest on the unpaid principal amount of each Loan for the period commencing on the date of such Loan until such Loan is paid in full as follows:
(a) at all times while such Loan is a Base Rate Loan, at a rate per annum equal to the sum of the Base Rate from time to time in
effect plus the Base Rate Margin from time to time in effect; and (b) at all times while such Loan is a LIBOR Loan, at a rate per annum equal to the sum of the LIBOR Rate applicable to each
Interest Period for such Loan plus the LIBOR Margin from time to time in effect; (c) (i) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, all outstanding Obligations hereunder shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) is not paid when due (after giving effect to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount
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shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(iii) At any time an Event of Default exists, upon the request of the Required Lenders, the Company shall pay interest on
the principal amount of all outstanding Obligations hereunder at a fluctuating rate per annum at all times equal to the Default Rate, provided further that such increase may thereafter be rescinded by the Required Lenders, pursuant to Section 15.1 . Notwithstanding the foregoing, upon the occurrence of an Event of Default under Section 13.1.4 , such increase shall occur automatically.
4.2. Interest Payment Dates .
Accrued interest on each Base Rate Loan (including, for the avoidance of doubt, each Swing Line Loan) shall be payable in arrears on the last day of each calendar quarter, upon a prepayment of such Loan and at maturity. Accrued interest on each LIBOR Loan shall be payable on the last day of each Interest Period relating to such Loan (and, in the case of a LIBOR Loan with an Interest Period in excess of three months, on the three-month anniversary of the first day of such Interest Period), upon a prepayment of such Loan, and at maturity. After maturity, and at any time an Event of Default exists, accrued interest on all Loans shall be payable on demand.
4.3. Setting and Notice of LIBOR Rates .
The applicable LIBOR Rate for each Interest Period shall be determined by the Administrative Agent, and notice thereof shall be given by the Administrative Agent promptly to the Company and each Lender. Each determination of the applicable LIBOR Rate by the Administrative Agent shall be conclusive and binding upon the parties hereto, in the absence of manifest error. The Administrative Agent shall, upon written request of the Company or any Lender, deliver to the Company or such Lender a statement showing the computations used by the Administrative Agent in determining any applicable LIBOR Rate hereunder.
4.4. Computation of Interest . All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the LIBOR Rate) shall be
made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
If, as a result of any restatement of or other adjustment to the financial statements of the Company or for any other reason, the Company
or the Lenders determine that (i) the Total Debt to EBITDA Ratio as calculated by the Company as of any applicable date was inaccurate and (ii)
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a proper calculation of the Total Debt to EBITDA Ratio would have resulted in higher pricing for such period, the Company shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders or the applicable Issuing Lender, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Company under the bankruptcy code of the United States, automatically and without further action by the Administrative Agent, any Lender or the applicable Issuing Lender), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of the Administrative Agent, any Lender or any Issuing Lender, as the case may be, under Section 2.3.3 , 5.2 or 4.1 or under Section 13 . The Company’s obligations under this paragraph shall survive the termination of the Commitments of all of the Lenders and the repayment of all other Obligations hereunder.
SECTION 5.
FEES
5.1. Non-Use Fee . The Company agrees to pay to the Administrative Agent for the account of each Lender a non-use fee (the “ Non-Use Fee ”), accruing
at all times during the Availability Period, at the Non-Use Fee Rate in effect from time to time on such Lender’s Pro Rata Share (as adjusted from time to time, including without limitation in accordance with Section 2.8 ) of the unused amount of the Aggregate Revolving Commitments. For purposes of calculating usage under this Section, the Aggregate Revolving Commitments shall be deemed used to the extent of aggregate Outstanding Amount of all Revolving Loans and L/C Obligations. Such Non-Use Fee shall accrue at all times during the Availability Period and be payable in arrears on the last day of each calendar quarter and on the Maturity Date for any period then ending for which such Non-Use Fee shall not have previously been paid; provided , that (A) no Non-Use Fee shall accrue on the Revolving Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender and (B) any Non-Use Fee accrued with respect to the Revolving Commitment of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Company so long as such Lender shall be a Defaulting Lender. The Non-Use Fee shall be computed for the actual number of days elapsed on the basis of a year of 360 days. For purposes of clarification, Swing Line Loans shall not be considered outstanding for purposes of determining the Non-Use Fee.
5.2. Letter of Credit Fees . (a) The Company shall pay to the Administrative Agent for the account of each Lender in accordance, subject to Section 2.8 ,
with its Pro Rata Share a Letter of Credit fee (the “ Letter of Credit Fee ”) for each Letter of Credit equal to the L/C Fee Rate times the daily maximum amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 2.3.10 . Letter of Credit Fees shall be (i)
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computed on a quarterly basis in arrears and (ii) due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If there is any change in the L/C Fee Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the L/C Fee Rate separately for each period during such quarter that such L/C Fee Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.
(b) The Company shall pay directly to each Issuing Lender for its own account a fronting fee with respect to each Letter of Credit,
at the rate per annum specified in the Joint Fee Letter, computed on the actual daily maximum amount available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit) and on a quarterly basis in arrears. Such fronting fee shall be due and payable on the tenth Business Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 2.3.10 . In addition, the Company shall pay directly to each Issuing Lender for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such Issuing Lender relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
5.3. Administrative Agent’s Fees . The Company agrees to pay to the Administrative Agent such fees as are mutually agreed to from time to time by the Company and the
Administrative Agent including the fees set forth in the Administrative Agent Fee Letter.
SECTION 6.
INCREASE, REDUCTION OR TERMINATION OF THE AGGREGATE REVOLVING COMMITMENTS; PREPAYMENTS
6.1. Increase, Reduction or Termination of the Aggregate Revolving Commitments .
6.1.1. Increase of the Aggregate Revolving Commitments .
From time to time after the Closing Date and prior to the Maturity Date, the Company may, at its option, with the approval of the Administrative Agent, and subject to the following conditions, request to increase the Aggregate Revolving Commitments by up to an additional $50,000,000. In addition to the
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approval of the Administrative Agent, any such increase shall be conditioned upon each of the following:
(a) No Event of Default or Unmatured Event of Default shall have occurred and be continuing; (b) The Company shall have obtained a commitment from an existing Lender or a commitment to participate as
an additional Lender hereunder from a financial institution which is reasonably acceptable to the Administrative Agent and the Issuing Lenders, which commitment shall be in writing and be in a minimum amount of $5,000,000 or an integral multiple thereof;
(c) No existing Lender shall be under any obligation to increase its Revolving Commitment and any such
decision whether to increase its Revolving Commitment shall be in such Lender’s sole and absolute discretion; (d) Such Lender increasing its Revolving Commitment or such proposed additional Lender shall have executed
a commitment agreement in form and substance satisfactory to the Administrative Agent pursuant to which such Lender increases its Revolving Commitment or such additional Lender shall become a Lender hereunder with a Revolving Commitment; and
(e) The Company and each Guarantor shall have executed and/or delivered to the Administrative Agent such
additional instruments, documents, certificates and agreements as the Administrative Agent shall reasonably request in connection with the foregoing and to confirm that such increase in the Aggregate Revolving Commitments hereunder has been duly authorized and approved by the Company and each Guarantor.
Upon satisfaction of all such conditions precedent, the Aggregate Revolving Commitments shall have been increased as appropriate and such proposed additional Lender, if any, shall become a Lender hereunder on and subject to the terms and conditions of this Agreement.
6.1.2. Voluntary Reduction or Termination of the Aggregate Revolving Commitments .
The Company may from time to time after the Closing Date on at least three (3) Business Days’ prior written notice received by the Administrative Agent (which shall promptly advise each Lender thereof) permanently reduce the Aggregate Revolving Commitments to an amount not less than the Revolving Outstandings. Any such reduction shall be in an amount not less than $5,000,000 or a higher integral multiple of $1,000,000. The Company shall not terminate or reduce (A) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, or (B) the Swing Line Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans would exceed the Swing Line Sublimit. Concurrently with any reduction of the Aggregate Revolving
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Commitments to zero, the Company shall pay all interest on the Revolving Loans, all Non-Use Fees, all Letter of Credit Fees and all fees payable pursuant to Section 5.2(b) and shall Cash Collateralize in full all obligations arising with respect to the Letters of Credit.
6.1.3. Mandatory Reductions .
If after giving effect to any reduction or termination of the Aggregate Revolving Commitments under Section 6.1.2 , the Letter of Credit Sublimit or the Swing Line Sublimit exceed the Aggregate Revolving Commitments at such time, the Letter of Credit Sublimit or the Swing Line Sublimit, as the case may be, shall be automatically reduced by the amount of such excess.
6.1.4. All Reductions of the Revolving Commitment .
All reductions of the Aggregate Revolving Commitments shall reduce the Aggregate Revolving Commitments ratably among the Lenders according to their respective Pro Rata Shares.
6.2. Voluntary and Mandatory Repayments .
6.2.1. Voluntary Repayments .
The Company may from time to time repay the Loans (without any corresponding reduction in the Aggregate Revolving Commitments) in whole or in part without premium or penalty; provided that the Company shall give the Administrative Agent (which shall promptly advise each Lender) notice thereof not later than Noon, (i) three Business Days prior to any date of prepayment of LIBOR Loans and (ii) on the date of prepayment of Base Rate Loans (which, in each case, shall be a Business Day), specifying the Loans to be repaid and the date and amount of repayment and whether the Loans to be prepaid are Revolving Loans and/or the Term Loan. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Pro Rata Share of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any such partial repayment shall be in an amount equal to $250,000 or a higher integral multiple of $50,000.
6.2.2. Mandatory Repayments .
(a) The Company shall make a repayment of the Loans (without any corresponding reduction in the Aggregate Revolving Commitments) and/or Cash Collateralize the L/C Obligations upon the occurrence of any of the following (each a “ Mandatory Repayment Event ”) at the following times and in the following amounts:
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(i) Within three (3) Business Days after the receipt by any Loan Party of any Net Cash Proceeds from
any Asset Disposition, in an amount equal to 100% of such Net Cash Proceeds, to the extent such Net Cash Proceeds are not reinvested in Eligible Assets within three hundred and sixty (360) days after receipt thereof (or, if committed to be reinvested in Eligible Assets within three hundred and sixty (360) days after receipt thereof, within one hundred and eighty (180) days following such commitment). Any prepayment pursuant to this clause (i) shall be applied as set forth in Section 6.3.2(b) .
(ii) Within three (3) Business Days after the receipt by any Loan Party of any Net Cash Proceeds from
any issuance of Capital Securities of any Loan Party (excluding (x) any issuance of Capital Securities to finance, promptly after such issuance, any Capital Expenditure permitted hereunder or any Permitted Acquisition, (y) any issuance of Capital Securities pursuant to any employee or director option program, benefit plan or compensation program, and (z) any issuance by a Subsidiary to the Company or another Subsidiary), in an amount equal to 100% of such Net Cash Proceeds. Any prepayment pursuant to this clause (ii) shall be applied as set forth in Section 6.3.2(b) .
(iii) Within three (3) Business Days after the receipt by any Loan Party of any Net Cash Proceeds from
any issuance of any Debt of any Loan Party (excluding Debt permitted by Section 11.1 ), in an amount equal to 100% of such Net Cash Proceeds. Any prepayment pursuant to this clause (iii) shall be applied as set forth in Section 6.3.2(b) .
(iv) Within ninety (90) days after the end of each Fiscal Year commencing with the Fiscal Year ending
December 31, 2013, in an amount equal to (A) 75% of Excess Cash Flow for the relevant Excess Cash Payment Period if the Compliance Certificate delivered by the Company pursuant to Section 10.1.3 for such Fiscal Year end demonstrates that the Total Debt to EBITDA Ratio is greater than or equal to 3.0 to 1.0, (B) 50% of Excess Cash Flow for the relevant Excess Cash Payment Period if the Compliance Certificate delivered by the Company pursuant to Section 10.1.3 for such Fiscal Year end demonstrates that the Total Debt to EBITDA Ratio is greater than or equal to 2.5 to 1.0 but less than 3.0 to 1.0 and (C) 0% of Excess Cash Flow for such Excess Cash Payment Period if the Compliance Certificate delivered by the Company pursuant to Section 10.1.3 for such Fiscal Year end demonstrates that the Total Debt to EBITDA Ratio is less than 2.5 to 1.0. The amount of prepayment for any Excess Cash Payment Period required to be made by the Company pursuant to this clause (iv) shall be reduced by (x) any voluntary prepayments of the Term Loan made by the Company during such Excess Cash Payment Period and (y) any voluntary prepayments of Revolving Loans made during such Excess Cash Payment Period to the extent accompanied by a corresponding permanent reduction in the Aggregate
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Revolving Commitments, in each case on a dollar-for-dollar basis (without duplication of any such reduction or credit in any prior Fiscal Year). Any prepayment pursuant to this clause (iv) shall be applied as set forth in Section 6.3.2(b) .
(b) If on any day on which the Revolving Outstandings exceed the Aggregate Revolving Commitments, the
Company shall immediately, with respect to the Maturity Date, and within one (1) Business Day, with respect to any other day, repay Revolving Loans and/or the Swing Line Loans and/or Cash Collateralize the outstanding Letters of Credit, or do a combination of the foregoing, in an amount sufficient to eliminate such excess.
6.3. Manner of Repayments .
6.3.1. Voluntary Repayments .
With regard to voluntary prepayments made pursuant to Section 6.2.1 , any such repayment of a LIBOR Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 8.4 . Subject to Section 2.8 , each such prepayment shall be applied to the Loans of the Lenders in accordance with their respective Pro Rata Shares. Each such prepayment of the Term Loan shall be applied to the principal installments of the Term Loan in the manner directed by the Company; provided however , if the Administrative Agent has not received any such written direction from the Company by the date prepayment is made by the Company, such prepayment shall be applied to the principal amortization payments of the Term Loan in the direct order of maturity.
6.3.2. Mandatory Repayments .
All amounts required to be paid pursuant to Section 6.2.2 shall be applied as follows: (a) with respect to all amounts prepaid pursuant to Section 6.2.2(b) , to Revolving Loans and Swing Line Loans
and (after all Revolving Loans and Swing Line Loans have been repaid) to Cash Collateralize L/C Obligations; (b) with respect to all amounts prepaid pursuant to Sections 6.2.2(a)(i) , (ii) , (iii) and (iv) , first to the Term
Loan (to the remaining principal amortization payments of such Term Loan in inverse order of maturity), then (after the Term Loan has been paid in full) to the Revolving Loans and then (after all Revolving Loans have been repaid) to Cash Collateralize L/C Obligations (without a corresponding permanent reduction in the Aggregate Revolving Commitments).
Within the parameters of the applications set forth above, repayments shall be applied first to Base Rate Loans and then to LIBOR Loans in direct order of Interest Period maturities. All prepayments under Section 6.2.2 shall be subject to
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Section 8.4 , but otherwise without premium or penalty, and shall be accompanied by interest on the principal amount prepaid through the date of prepayment.
6.4. Repayment .
6.4.1. Revolving Loans .
The Company shall repay to the Lenders on the Maturity Date the aggregate principal amount of all Revolving Loans outstanding on such date and the Aggregate Revolving Commitments shall terminate on the Maturity Date.
6.4.2. Swing Line Loans .
The Company shall repay each Swing Line Loan on the earlier to occur of (a) the date within one (1) Business Day of demand therefor by the Swing Line Lender and (b) the Maturity Date.
6.4.3. Term Loan .
The Company shall repay the outstanding principal amount of the Term Loan in installments on the dates and in the amounts set forth in the table below (as such installments may hereafter be adjusted as a result of repayments made pursuant to Section 6.2 ), unless accelerated sooner pursuant to Section 13.2 :
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Payment Dates
Principal Amortization Payment
December 31, 2012
$ 5,625,000
March 31, 2013 $ 5,625,000
June 30, 2013
$ 5,625,000
September 30, 2013 $ 5,625,000
December 31, 2013
$ 5,625,000
March 31, 2014 $ 5,625,000
June 30, 2014
$ 5,625,000
September 30, 2014 $ 5,625,000
December 31, 2014
$ 7,500,000
March 31, 2015 $ 7,500,000
June 30, 2015
$ 7,500,000
September 30, 2015 $ 7,500,000
December 31, 2015
$ 7,500,000
March 31, 2016 $ 7,500,000
June 30, 2016
$ 7,500,000
September 30, 2016 $ 7,500,000
December 31, 2016
$ 9,375,000
March 31, 2017 $ 9,375,000
June 30, 2017
$ 9,375,000
September 30, 2017 $ 9,375,000
SECTION 7.
MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES
7.1. Making of Payments; Administrative Agent’s Clawback .
7.1.1. General . All payments to be made by the Company shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Company hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 1:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s lending office. All payments received by the Administrative Agent after 1:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. Subject to the definition of “Interest Period”, if any payment to be made by the Company shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
7.1.2. Funding by Lenders; Presumption by Administrative Agent . Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any Borrowing of LIBOR Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 11:00 a.m. on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.2 (or, in the case of any Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.2 ) and may, in reliance upon such assumption, make available to the Company a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Company severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Company to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (B) in the case of a payment to be made by the Company, the interest rate then applicable to such Loans. If the Company and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Company the amount of
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Maturity Date
Outstanding Principal Balance of Term Loan
such interest paid by the Company for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Company shall be without prejudice to any claim the Company may have against a Lender that shall have failed to make such payment to the Administrative Agent.
7.1.3. Payments by Company; Presumptions by Administrative Agent . Unless the Administrative Agent shall have
received notice from the Company prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or an Issuing Lender hereunder that the Company will not make such payment, the Administrative Agent may assume that the Company has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or such Issuing Lender, as the case may be, the amount due. In such event, if the Company has not in fact made such payment, then each of the Lenders or the applicable Issuing Lender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Lender, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Company with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.
7.1.4. Failure to Satisfy Conditions Precedent . If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided hereunder, and such funds are not made available to the Company by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Section 12 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
7.1.5. Obligations of Lenders Several . The obligations of the Lenders hereunder to make Loans, to fund participations
in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 14.8 are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 14.8 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 14.8 .
7.1.6. Funding Source . Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any
particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
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7.2. Application of Certain Payments . So long as no Event of Default has occurred and is continuing, (a) payments matching specific scheduled payments then due shall be
applied to those scheduled payments and (b) voluntary and mandatory prepayments shall be applied as set forth in Sections 6.2 and 6.3 . After the occurrence and during the continuance of an Event of Default, all amounts collected or received by the Administrative Agent or any Lender as proceeds from the sale of, or other realization upon, all or any part of the collateral shall be applied as set forth in Section 13.3 . Concurrently with each remittance to any Lender of its share of any such payment, the Administrative Agent shall advise such Lender as to the application of such payment.
7.3. Due Date Extension . If any payment of principal or interest with respect to any of the Loans, or of any fees, falls due on a day which is not a Business Day,
then such due date shall be extended to the immediately following Business Day (unless, in the case of a LIBOR Loan, such immediately following Business Day is the first Business Day of a calendar month, in which case such due date shall be the immediately preceding Business Day) and, in the case of principal, additional interest shall accrue and be payable for the period of any such extension.
7.4. Setoff . If an Event of Default shall have occurred and be continuing, each Lender, each Issuing Lender and each of their respective Affiliates is
hereby authorized at any time and from time to time, after obtaining the prior written consent of the Administrative Agent, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, such Issuing Lender or any such Affiliate to or for the credit or the account of the Company or any Guarantor against any and all of the obligations of the Company or such Guarantor now or hereafter existing under this Agreement or any other Loan Document to such Lender or such Issuing Lender or their respective Affiliates, irrespective of whether or not such Lender, such Issuing Lender or Affiliate shall have made any demand under this Agreement or any other Loan Document or are owed to a branch office or Affiliate of such Lender or such Issuing Lender different from the branch office or Affiliate holding such deposit or obligated on such indebtedness; provided , that , in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.8 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Issuing Lenders and the Lenders and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, each Issuing Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, such Issuing Lender or their respective Affiliates may have. Each Lender and each Issuing Lender agrees to notify the
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Company and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
7.5. Proration of Payments . If any Lender shall obtain any payment or other recovery (whether voluntary, involuntary, by application of offset or otherwise, on
account of (a) principal of or interest on any Loan or (b) its participation in any L/C Obligations or Swing Line Loans held by it (excluding any amounts applied by the Swing Line Lender to outstanding Swing Line Loans) in excess of its applicable Pro Rata Share of payments and other recoveries obtained by all Lenders on account of principal of and interest on the Loans (or such participation) then held by them, then such Lender shall notify the Administrative Agent of such fact and purchase from the other Lenders such participations in the Loans (or sub-participations in L/C Obligations and Swing Line Loans) held by them as shall be necessary to cause such purchasing Lender to share the excess payment or other recovery ratably with each of them; provided that
(i) if all or any portion of the excess payment or other recovery is thereafter recovered from such purchasing Lender, the
purchase shall be rescinded and the purchase price restored to the extent of such recovery and (ii) the provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of the
Company pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral provided for in Section 2.7 or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than an assignment to the Company or any Subsidiary thereof (as to which the provisions of this Section shall apply).
The Company consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Company rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Company in the amount of such participation.
7.6. Taxes . (a) All payments made by the Company hereunder or under any Loan Documents shall be made without setoff, counterclaim, or
other defense. To the extent permitted by applicable law, all payments hereunder or under the Loan Documents (including any payment of principal, interest, or fees) to, or for the benefit, of any person shall be made by the Company free and clear of and without deduction or withholding for, or account of, any Taxes now or hereinafter imposed by any taxing authority. If any applicable Laws (as determined in the good faith discretion of the Administrative Agent) require the deduction or withholding of any Tax from any such payment by the Administrative Agent or a Loan Party, then the Administrative
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Agent or such Loan Party shall be entitled to make such deduction or withholding, upon the basis of the information and documentation to be delivered pursuant to subsection (d) below.
(b) If any Loan Party or the Administrative Agent shall be required by the Code and the United States Treasury Regulations
promulgated thereunder to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or make such deductions as are determined by the Administrative Agent to be required based upon the information and documentation it has received pursuant to subsection (d) below, (B) the Administrative Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 7.6) the applicable recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.
(c) If any Lender or the Administrative Agent is required by law to make any payments of any Indemnified Taxes on or in
relation to any amounts received or receivable hereunder or under any other Loan Document, or any Indemnified Tax is assessed against a Lender or the Administrative Agent with respect to amounts received or receivable hereunder or under any other Loan Document, the Company will indemnify such person against (i) such Indemnified Tax (and any reasonable counsel fees and expenses associated with such Tax) and (ii) any Indemnified Taxes imposed as a result of the receipt of the payment under this Section 7.6(c) . A certificate prepared in good faith as to the amount of such payment by such Lender or the Administrative Agent shall, absent manifest error, be final, conclusive, and binding on all parties, and must be delivered to the Company as a condition for reimbursement under this Section 7.6(c) . In addition, without limiting the foregoing provisions of this Section 7.6 , the Company shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d) (i) To the extent permitted by applicable law, each Lender that is not a United States person within the meaning of Code section 7701(a)(30) (a “ Non-U.S. Participant” ) shall deliver to the Company and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent, two accurate and complete original signed copies of IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor form prescribed by the Internal Revenue Service) certifying to such Lender’s entitlement to a complete exemption from, or a reduced rate in, United States withholding tax on payments to be made hereunder or under any other Loan Document. If a Lender that is a Non-U.S. Participant is claiming a complete exemption from withholding on interest pursuant to Sections 871(h) or 881(c) of the Code, the Lender shall deliver (along with two accurate and complete original signed copies of IRS Form W-8BEN) a certificate in form and substance reasonably acceptable to Administrative Agent (any such certificate, a “ Withholding Certificate ”). In addition, each Lender that is a Non-U.S. Participant agrees that from time to time after the Closing
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Date, (or in the case of a Lender that is an assignee, after the date of the assignment to such Lender), when a lapse in time (or change in circumstances occurs or any other reason) renders the prior certificates hereunder obsolete or inaccurate in any material respect, such Lender shall, to the extent permitted under applicable law, deliver to the Company and the Administrative Agent two new and accurate and complete original signed copies of an IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor forms prescribed by the Internal Revenue Service), and if applicable, a new Withholding Certificate, to confirm or establish the entitlement of such Lender or the Administrative Agent to an exemption from, or reduction in, United States withholding tax on payments to be made hereunder or under any other Loan Document.
(ii) Each Lender that is not a Non-U.S. Participant and the Administrative Agent shall provide two properly completed
and duly executed copies of IRS Form W-9 (or any successor form) to the Company and the Administrative Agent certifying that such Lender is exempt from United States backup withholding tax, on or prior to the date on which such Lender becomes a Lender under this Agreement and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent. To the extent that a form provided pursuant to this Section 7.6(d)(ii ) is rendered obsolete or inaccurate in any material respect as result of change in circumstances, lapse of time or any other reason, such Lender or the Administrative Agent, as applicable and to the extent permitted by applicable law, shall deliver to the Company and the Administrative Agent revised forms necessary to confirm or establish the entitlement to such Lender’s or Agent’s exemption from United States backup withholding tax.
(iii) If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed
by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Company and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Company or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Company or the Administrative Agent as may be necessary for the Company and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement
(e) Each Lender agrees to indemnify the Administrative Agent and hold the Administrative Agent harmless for the full amount of
any and all present or future Taxes and related liabilities (including penalties, interest, additions to tax and expenses, and any Taxes imposed by any jurisdiction on amounts payable to the Administrative Agent under this Section 7.6 ) which are imposed on or with respect to principal, interest or fees payable to such Lender hereunder and which are not paid by the Company pursuant to this Section 7.6 , whether or not such Taxes or related liabilities were correctly or legally asserted. This indemnification shall be
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made within thirty (30) days from the date the Administrative Agent makes written demand therefore.
(f) Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise
pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender. If any Lender or the Administrative Agent determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by the Company or with respect to which the Company has paid additional amounts pursuant to this Section 7.6 , it shall pay to the Company an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Company under this Section 7.6 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Person, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Company, upon the request of such Person, agrees to repay the amount paid over to the Company (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Person in the event such Person is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this subsection, in no event will the applicable Person be required to pay any amount to the Company pursuant to this Section 7.6(f) to the extent the payment of such amount would place such Person in a less favorable net after-Tax position than such Person would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. This subsection shall not be construed to require any Person to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Company or any other Person.
(g) Each party’s obligations under this Section 7.6 shall survive the resignation or replacement of the Administrative Agent or any
assignment of rights by, or the replacement of, a Lender or an Issuing Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.
SECTION 8.
INCREASED COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS
8.1. Increased Costs . (a) If any Change in Law shall (i) impose, modify or deem applicable any reserve (including any reserve imposed by the FRB,
but excluding any reserve included in the determination of the LIBOR Rate), special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by or participated in by any Lender or any Issuing Lender; (ii) subject any Lender or any Issuing Lender to any Tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any LIBOR Loan made by it, or change the basis of taxation of payments to such Lender or such Issuing Lender in respect thereof (except for Indemnified Taxes covered by Section 7.6 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or such Issuing Lender); or (iii) impose on any
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Lender or any Issuing Lender or the London interbank market any other condition, cost or expense affecting this Agreement or LIBOR Loans made by such Lender or any Letter of Credit or participation therein; and the result of anything described in clauses (i) through (iii) above is to increase the cost to (or to impose a cost on) such Lender (or any LIBOR Office of such Lender) of making or maintaining any Loan the interest on which is determined by reference to the LIBOR Rate (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such Issuing Lender of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender (or its LIBOR Office) or such Issuing Lender under this Agreement or under its Note with respect thereto (whether of principal, interest or any other amount), then upon demand by such Lender or such Issuing Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to the Administrative Agent), the Company shall pay, within ten (10) Business Days of receipt of such demand, directly to such Lender or such Issuing Lender, as applicable, such additional amount as will compensate such Lender or such Issuing Lender, as applicable, for such increased cost or such reduction, so long as such amounts have accrued on or after the day which is one hundred and eighty (180) days prior to the date on which such Lender or such Issuing Lender, as applicable, first made demand therefor.
(b) If any Lender or any Issuing Lender shall reasonably determine that any Change in Law affecting such Lender or such Issuing
Lender or any LIBOR Office of such Lender or such Lender’s or such Issuing Lender’s holding company, if any, regarding capital adequacy or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or such Issuing Lender’s capital or on the capital of such Lender’s or such Issuing Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Lender to a level below that which such Lender or such Issuing Lender or such Lender’s or such Issuing Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Lender’s policies and the policies of such Lender’s or such Issuing Lender’s holding company with respect to capital adequacy or liquidity) by an amount deemed by such Lender, such Issuing Lender or such Lender’s or such Issuing Lender’s holding company to be material, then from time to time, upon demand by such Lender or Issuing Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to the Administrative Agent), the Company shall pay, within ten (10) Business Days of receipt of such demand, to such Lender or Issuing Lender, as the case may be, such additional amount as will compensate such Lender, such Issuing Lender or such Lender’s or Issuing Lender’s holding company for such reduction so long as such amounts have accrued on or after the day which is one hundred and eighty (180) days prior to the date on which such Lender or such Issuing Lender first made demand therefor.
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8.2. Basis for Determining Interest Rate Inadequate or Unfair . If
(a) the Administrative Agent reasonably determines (which determination shall be binding and conclusive on the Company
absent manifest error) that by reason of circumstances affecting the interbank LIBOR market adequate and reasonable means do not exist for ascertaining the LIBOR Base Rate for any requested Interest Period with respect to a proposed LIBOR Loan or in connection with an existing or proposed Base Rate Loan; or
(b) the Required Lenders advise the Administrative Agent that (i) the LIBOR Rate as determined by the Administrative Agent for
any Interest Period will not adequately and fairly reflect the cost to such Lenders of maintaining or funding LIBOR Loans for such Interest Period (taking into account any amount to which such Lenders may be entitled under Section 8.1 ), (ii) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such LIBOR Loan or (iii) the making or funding of LIBOR Loans has become impracticable as a result of an event occurring after the date of this Agreement which in the opinion of such Lenders materially affects such Loans;
then the Administrative Agent shall promptly notify the Company and the Lenders and, so long as such circumstances shall continue, (i) no Lender shall be under any obligation to make or maintain LIBOR Loans or convert any Base Rate Loans into LIBOR Loans, (ii) in the event of a determination described in clause (a) or (b) with respect to the LIBOR Rate component of the Base Rate, the utilization of the LIBOR Rate component in determining the Base Rate shall be suspended and (iii) on the last day of the current Interest Period for each LIBOR Loan, such Loan shall, unless then repaid in full, automatically convert to a Base Rate Loan.
8.3. Changes in Law Rendering LIBOR Loans Unlawful . If any change in, or the adoption of any new, law or regulation, or any change in the interpretation of any applicable law or regulation
by any governmental or other regulatory body charged with the administration thereof, should make it (in the good faith judgment of any Lender) unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its LIBOR Office to make, maintain or fund Loans whose interest is determined by reference to the LIBOR Rate, or to determine or charge interest rates based upon the LIBOR Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then such Lender shall promptly notify the Company and the Administrative Agent and, so long as such circumstances shall continue, (a) (i) such Lender shall have no obligation to make, continue or convert any Base Rate Loan into a LIBOR Loan (but shall make Base Rate Loans concurrently with the making of or conversion of Base Rate Loans into LIBOR Loans by the Lenders which are not so affected, in each case in an amount equal to the amount of LIBOR Loans which would be made or converted into by such Lender at such time in the absence of such circumstances) and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the LIBOR Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the LIBOR Rate component of the Base Rate and (b) (i) on the last day of the current Interest Period for each LIBOR Loan of such Lender (or, in any event, on such earlier date as may be required by the relevant law, regulation or interpretation), such LIBOR Loan shall, unless then repaid in full, automatically convert to a Base Rate Loan (the interest rate on
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which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the LIBOR Rate component of the Base Rate) and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the LIBOR Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the LIBOR Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the LIBOR Rate. Each Base Rate Loan made by a Lender which, but for the circumstances described in the foregoing sentence, would be a LIBOR Loan (an “ Affected Loan ”) shall remain outstanding for the period corresponding to the group of LIBOR Loans of which such Affected Loan would be a part absent such circumstances.
8.4. Funding Losses . The Company hereby agrees that upon written demand by any Lender (which demand shall be accompanied by a statement setting forth
in reasonable detail the basis for the amount being claimed, a copy of which shall be furnished to the Administrative Agent), the Company will indemnify such Lender against any net loss or expense which such Lender may sustain or incur (including any net loss or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain any LIBOR Loan), as reasonably determined by such Lender, as a result of (a) any payment, continuation, prepayment or conversion of any LIBOR Loan of such Lender on a date other than the last day of an Interest Period for such Loan (including any conversion pursuant to Section 8.3 ), (b) any failure of the Company to prepay, borrow, convert or continue any Loan on the date or in the amount notified by the Company or (c) any assignment of a LIBOR Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Company pursuant to Section 8.7(b) , including any actual loss or expense incurred from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained; provided that written notice of such loss is given to the Company within one hundred and eighty (180) days of its incurrence. For this purpose, all notices to the Administrative Agent pursuant to this Agreement shall be deemed to be irrevocable. The Company shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
8.5. Right of Lenders to Fund through Other Offices . Each Lender may, if it so elects, fulfill its commitment as to any LIBOR Loan by causing a foreign branch or Affiliate of such Lender
to make such Loan; provided that in such event for the purposes of this Agreement such Loan shall be deemed to have been made by such Lender and the obligation of the Company to repay such Loan shall nevertheless be to such Lender and shall be deemed held by it, to the extent of such Loan, for the account of such branch or Affiliate.
8.6. Discretion of Lenders as to Manner of Funding . Notwithstanding any provision of this Agreement to the contrary, except with regard to the obligation to mitigate increased costs, each
Lender shall be entitled to fund and maintain its funding of all or any part of its Loans in any manner it sees fit, it being understood, however, that
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for the purposes of this Agreement all determinations hereunder shall be made as if such Lender had actually funded and maintained each LIBOR Loan during each Interest Period for such Loan through the purchase of deposits having a maturity corresponding to such Interest Period and bearing an interest rate equal to the LIBOR Rate for such Interest Period.
8.7. Mitigation of Circumstances; Replacement of Lenders . (a) Each Lender shall promptly notify the Company and the Administrative Agent of any event of which it has knowledge which
will result in, and will use reasonable commercial efforts available to it (and not, in such Lender’s reasonable good faith judgment, otherwise disadvantageous to such Lender) to mitigate or avoid, (i) any obligation by the Company to pay any amount pursuant to Section 7.6 or 8.1 or (ii) the occurrence of any circumstances described in Section 8.2 or (and, if any Lender has given notice of any such event described in clause (i) or (ii) above and thereafter such event ceases to exist, such Lender shall promptly so notify the Company and the Administrative Agent). Without limiting the foregoing, each Lender will designate a different funding office if such designation will avoid (or reduce the cost to the Company of) any event described in clause (i) or (ii) above and such designation will not, in such Lender’s reasonable good faith judgment, be otherwise disadvantageous to such Lender.
(b) If (i) the Company becomes obligated to pay additional amounts to any Lender pursuant to Section 7.6 or 8.1 , (ii) any Lender
gives notice of the occurrence of any circumstances described in Section 8.2 or 8.3 , (iii) a Lender (a “ Non-Consenting Lender ”) does not consent to a proposed change, waiver, discharge or termination with respect to any Loan Document that has been approved by the Required Lenders as provided in Section 15.1 but requires unanimous consent of all Lenders or all Lenders directly affected thereby (as applicable) or (iv) any Lender becomes a Defaulting Lender, the Company may designate another bank which is acceptable to the Administrative Agent and the Issuing Lenders in their reasonable discretion (such other bank being called a “ Replacement Lender ”) to purchase the Loans of such Lender and such Lender’s rights hereunder, without recourse to or warranty by, or expense to, such Lender, for a purchase price equal to the outstanding principal amount of the Loans payable to such Lender plus any accrued but unpaid interest on such Loans and all accrued but unpaid fees owed to such Lender and any other amounts payable to such Lender under this Agreement, and to assume all the obligations of such Lender hereunder, and, upon such purchase and assumption (pursuant to an Assignment and Assumption), such Lender shall no longer be a party hereto or have any rights hereunder (other than rights with respect to indemnities and similar rights applicable to such Lender prior to the date of such purchase and assumption) and shall be relieved from all obligations to the Company hereunder, and the Replacement Lender shall succeed to the rights and obligations of such Lender hereunder; provided that (i) the Company shall pay to the Administrative Agent the assignment fee specified in Section 15.6.2 and (ii) such assignment does not conflict with applicable Laws. In the case of any assignment resulting from a Non-Consenting Lender’s failure to consent to a proposed change, waiver, discharge or termination with respect to any Loan Document, it is required that (a) the applicable Replacement Lender consents to the proposed change, waiver, discharge or termination and (b) to the extent such Non-Consenting Lender is an Issuing Lender that has issued Letters of Credit hereunder that remain outstanding at such time, such Letters of Credit have been returned to such Non-Consenting Lender; provided that the failure by such Non-Consenting Lender to execute and deliver an Assignment and Assumption shall not impair the validity of the removal of such
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Non-Consenting Lender and the mandatory assignment of such Non-Consenting Lender’s Commitments and outstanding Loans and participations in Letters of Credit pursuant to this Section 8.7 shall nevertheless be effective without the execution by such Non-Consenting Lender of an Assignment and Assumption. A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.
8.8. Conclusiveness of Statements; Survival of Provisions . Determinations and statements of any Lender pursuant to Section 8.1 , 8.2 , 8.3 or 8.4 shall be conclusive absent demonstrable error.
Lenders may use reasonable averaging and attribution methods in determining compensation under Sections 8.1 and, and the provisions of such Sections shall survive repayment of the Obligations, cancellation of any Notes, expiration or termination of the Letters of Credit and termination of this Agreement.
SECTION 9.
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this Agreement and to induce the Lenders to make Loans and issue
and participate in Letters of Credit hereunder, the Company represents and warrants to the Administrative Agent and the Lenders, on the Closing Date and on each date thereafter when the applicable representations and warranties are made, required to be made or deemed to be made, that:
9.1. Organization . The Company and each Guarantor is validly existing and in good standing, in each case, under the laws of its jurisdiction of
organization; and the Company and each Guarantor is duly qualified to do business in each jurisdiction where, because of the nature of its activities or properties, such qualification is required, except for such jurisdictions where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect.
9.2. Authorization; No Conflict . The Company and each Guarantor is duly authorized to execute and deliver each Loan Document to which it is a party, the Company is
duly authorized to borrow monies hereunder and the Company and each Guarantor is duly authorized to perform its obligations under each Loan Document to which it is a party. The execution, delivery and performance by the Company and each Guarantor of each Loan Document to which it is a party, and the borrowings by the Company hereunder, do not and will not (a) require any consent or approval of any governmental agency or authority (other than any consent or approval which has been obtained and is in full force and effect), (b) conflict with (i) any provision of law, (ii) the charter, by-laws or other organizational documents of the Company or any Guarantor or (iii) any agreement, indenture, instrument or other document, or any judgment, order or decree, which is binding upon the Company or any Guarantor or any of their respective properties or (c) require, or result in, the
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creation or imposition of any Lien on any asset of the Company or any Guarantor (other than Liens in favor of the Administrative Agent created pursuant to the Collateral Documents).
9.3. Validity and Binding Nature . Each of this Agreement and each other Loan Document to which the Company or any Guarantor is a party is the legal, valid and
binding obligation of such Person, enforceable against such Person in accordance with its terms, subject to bankruptcy, insolvency and similar laws affecting the enforceability of creditors’ rights generally and to general principles of equity.
9.4. Financial Condition . (a) The Audited Financial Statements and the monthly financial statements delivered in accordance with Section 12.1.17 with
respect to the Company and its Subsidiaries present fairly in all material respects the consolidated financial condition of the Company and its Subsidiaries as at such dates and the results of their operations for the periods then ended. The Audited Financial Statements delivered in accordance with Section 12.1.17 with respect to the Company and its Subsidiaries were prepared in accordance with GAAP.
(b) The unaudited consolidated financial statements of Central Parking and its Subsidiaries for the Fiscal Quarter ended
December 31, 2011 and, to the knowledge of the Company, the monthly financial statements delivered in accordance with Section 12.1.17 with respect to Central Parking and its Subsidiaries present fairly in all material respects the consolidated financial condition of Central Parking and its Subsidiaries, as at such dates and the results of their operations for the periods then ended. To the knowledge of the Company, such unaudited consolidated financial statements of Central Parking and its Subsidiaries for the Fiscal Quarter ended December 31, 2011 delivered in accordance with Section 12.1.17 were prepared in accordance with GAAP (subject to the absence of footnotes and to normal year-end adjustments).
(c) The financial statements delivered pursuant to Sections 10.1.1 and 10.1.2 have been prepared in accordance with GAAP
(except as may otherwise be permitted under Sections 10.1.1 and 10.1.2 ) and present fairly in all material respects the consolidated financial condition, results of operations and cash flows of the Company and its Subsidiaries as of the dates thereof and for the periods covered thereby.
9.5. No Material Adverse Change . Since December 31, 2011, there has been no event or circumstance, either individually or in the aggregate, that has had or could
reasonably be expected to have a Material Adverse Effect. 9.6. Litigation and Contingent Liabilities . No litigation (including derivative actions), arbitration proceeding or governmental investigation or proceeding is pending or, to the
Company’s knowledge, threatened, against any Loan Party or Guarantor which could reasonably be expected to have a Material Adverse Effect. Other than any liability incident to such litigation or proceedings, no Loan Party or Guarantor
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has any material contingent liabilities not permitted by Section 11.1 that could reasonably be expected to result in a Material Adverse Effect.
9.7. Ownership of Properties; Liens . Each Loan Party and each Guarantor owns good and, in the case of real property, marketable title to all of its properties and assets
necessary in the ordinary course of its business, real and personal, tangible and intangible, of any nature whatsoever (including patents, trademarks, trade names, service marks and copyrights) except to the extent that the failure to do so could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, free and clear of all Liens, charges and claims of which it has received written notice (including written infringement claims with respect to patents, trademarks, service marks, copyrights and the like), except Permitted Liens.
9.8. Equity Ownership; Subsidiaries . All issued and outstanding Capital Securities of each Subsidiary and Joint Venture are duly authorized and validly issued, fully paid,
and to the extent applicable, non-assessable, and (in the case of Subsidiaries and Joint Ventures) free and clear of all Liens other than those in favor of the Administrative Agent (and Liens permitted by Section 11.2(b) , (d) , (k) or (l) ), and such securities were issued in compliance with all applicable state and federal laws concerning the issuance of securities except to the extent that the failure to do so could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect. Schedule 9.8 sets forth the authorized Capital Securities and jurisdiction of organization of each Subsidiary and Joint Venture as of the Closing Date. All of the issued and outstanding Capital Securities of each Wholly-Owned Subsidiary are, directly or indirectly, owned by the Company. As of the Closing Date, except as set forth on Schedule 9.8 , there are no pre-emptive or other outstanding rights, options, warrants, conversion rights or other similar agreements or understandings for the purchase or acquisition of any Capital Securities of any Subsidiary.
9.9. Pension Plans . (a) The Unfunded Liability of all Pension Plans does not in the aggregate exceed twenty percent of the Total Plan Liability for all
such Pension Plans. Each Pension Plan complies in all material respects with all applicable requirements of law and regulations. No contribution failure under Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan has occurred with respect to any Pension Plan, sufficient to give rise to a Lien under Section 302(f) of ERISA, or otherwise to have a Material Adverse Effect. There are no pending or, to the knowledge of Company, threatened, claims, actions, investigations or lawsuits against any Pension Plan, any fiduciary of any Pension Plan, the Company or other any member of the Controlled Group with respect to a Pension Plan or a Multiemployer Pension Plan which could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any other member of the Controlled Group has engaged in any prohibited transaction (as defined in Section 4975 of the Code or Section 406 of ERISA) in connection with any Pension Plan or Multiemployer Pension Plan which could reasonably be expected to have a Material Adverse Effect. Within the past five years, neither the Company nor any other member of the Controlled Group has engaged in a transaction which resulted in a Pension Plan with an Unfunded Liability
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being transferred out of the Controlled Group, which could reasonably be expected to have a Material Adverse Effect. No Termination Event has occurred or is reasonably expected to occur with respect to any Pension Plan, which could reasonably be expected to have a Material Adverse Effect.
(b) Except as could not reasonably be expected to result in a Material Adverse Effect, (i) all contributions (if any) have been
made to any Multiemployer Pension Plan that are required to be made by the Company or any other member of the Controlled Group under the terms of the plan or of any collective bargaining agreement or by applicable law; (ii) neither the Company nor any other member of the Controlled Group has withdrawn or partially withdrawn from any Multiemployer Pension Plan, incurred any withdrawal liability with respect to any such plan or received notice of any claim or demand for withdrawal liability or partial withdrawal liability from any such plan, and no condition has occurred which, if continued, could result in a withdrawal or partial withdrawal from any such plan; and (iii) neither the Company nor any other member of the Controlled Group has received any notice that any Multiemployer Pension Plan is in reorganization, that increased contributions may be required to avoid a reduction in plan benefits or the imposition of any excise tax, that any such plan is or has been funded at a rate less than that required under Section 412 of the Code, that any such plan is or may be terminated, or that any such plan is or may become insolvent.
9.10. Investment Company Act . No Loan Party is an “investment company” within the meaning of the Investment Company Act of 1940. 9.11. Regulation U . The Company is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock. 9.12. Taxes . Each Loan Party has filed all federal and state income and other material tax returns and reports required by law to have been filed by it
and has paid all federal and state income and other material taxes and governmental charges due and payable with respect to such return, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books. The Loan Parties have made adequate reserves on their books and records in accordance with GAAP for all taxes that have accrued but which are not yet due and payable.
9.13. Solvency . The Company and its Subsidiaries are Solvent on a consolidated basis.
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9.14. Environmental Matters .
The on-going operations of the Company, its Subsidiaries and the Joint Ventures comply in all respects with all Environmental Laws,
except such non-compliance which would not (if enforced in accordance with applicable law) reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect. Each of the Company, its Subsidiaries and the Joint Ventures has obtained, and maintained in good standing, all licenses, permits, authorizations, registrations and other approvals required under any Environmental Law and required for their respective ordinary course operations, and for their reasonably anticipated future operations, and each of the Company, its Subsidiaries and the Joint Ventures is in compliance with all terms and conditions thereof, except where the failure to do so would not reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect. None of the Company, its Subsidiaries or the Joint Ventures or any of its properties or operations is subject to, or reasonably anticipates the issuance of, any written order from or agreement with any Federal, state or local governmental authority, and is not subject to any judicial or docketed administrative or other proceeding, respecting any Environmental Law, Environmental Claim or Hazardous Substance. There are no Hazardous Substances or other conditions or circumstances existing with respect to any property, arising from operations prior to the Closing Date, or relating to any waste disposal, of any of the Company, its Subsidiaries and the Joint Ventures that would reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect. None of the Company, its Subsidiaries and the Joint Ventures owns or operates any underground storage tanks that are not properly registered or permitted under applicable Environmental Laws and, except as could not reasonably be expected to result in a Material Adverse Effect, no releases, leaks, spills or discharges of Hazardous Substances triggering reporting or remediation requirements under such Environmental Laws has occurred (i) at any time while any of the Company, its Subsidiaries or the Joint Ventures has owned or operated them, and (ii) at any time while any Person other than any of the Company, its Subsidiaries and the Joint Ventures owned or operated them, to the Company’s best knowledge without independent investigation or inquiry.
9.15. Insurance . Each Loan Party and its properties are insured with financially sound and reputable insurance companies which may be Affiliates of the
Loan Parties provided that such insurance is obtained from such Affiliate on terms that are no less favorable to the relevant Loan Party than the relevant Loan Party would have obtained from an unrelated Person, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where such Loan Parties operate.
9.16. Real Property . Neither the Company, nor any Subsidiary, owns any real property that is not Excluded Property. 9.17. Information . All information (other than information of a general economic or industry nature) heretofore or contemporaneously herewith furnished
in writing by any Loan Party or Guarantor to the Administrative Agent or any Lender for purposes of or in connection with this Agreement
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and the transactions contemplated hereby is, and all written information hereafter furnished by or on behalf of any Loan Party or Guarantor to the Administrative Agent or any Lender pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and none of such information is or will be incomplete by omitting to state any material fact necessary to make such information not materially misleading in light of the circumstances under which made (it being recognized by the Administrative Agent and the Lenders that any projections and forecasts provided by the Company are based on good faith estimates and assumptions believed by the Company to be reasonable as of the date of the applicable projections or assumptions and that actual results during the period or periods covered by any such projections and forecasts may differ from projected or forecasted results).
9.18. Intellectual Property . Each Loan Party and each Guarantor owns and possesses or has a license or other right to use all patents, patent rights, trademarks,
trademark rights, trade names, trade name rights, service marks, service mark rights and copyrights as are necessary for the conduct of the respective businesses of the Loan Parties as currently conducted, as applicable, without any infringement upon rights of others which could reasonably be expected to have a Material Adverse Effect.
9.19. [Reserved] . 9.20. Labor Matters . Except as set forth on Schedule 9.20 , no Loan Party is subject to any labor or collective bargaining agreement. There are no existing or
threatened strikes, lockouts or other labor disputes involving any Loan Party that singly or in the aggregate could reasonably be expected to have a Material Adverse Effect. Hours worked by and payment made to employees of the Loan Parties are not in violation in any material respect of the Fair Labor Standards Act or any other applicable law, rule or regulation dealing with such matters.
9.21. No Default . No Event of Default or Unmatured Event of Default exists or would result from the incurrence by any Loan Party or Guarantor of any
Debt hereunder or under any other Loan Document. 9.22. Subordinated Debt . The subordination provisions of the Subordinated Debt are enforceable in all material respects against the holders of the Subordinated
Debt by the Administrative Agent and the Lenders. All Obligations constitute senior Debt entitled to the benefits of the subordination provisions contained in the Subordinated Debt Documents. The Company acknowledges that the Administrative Agent and each Lender are entering into this Agreement and are extending the Commitments and making the Loans in reliance upon the subordination provisions of the Subordinated Debt and this Section 9.22 .
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9.23. Perfection of Security Interests . The Collateral Documents create valid security interests in, and Liens on, the Collateral purported to be covered thereby, and, on and
after the Closing Date and after having taken all actions required pursuant to the Guaranty and Collateral Agreement, which security interests and Liens are currently perfected security interests and Liens to the extent required under the Guaranty and Collateral Agreement, prior to all other Liens other than Permitted Liens.
9.24. OFAC . No Loan Party, nor, to the knowledge of any Loan Party, any Related Party, (i) is currently the subject of any Sanctions, (ii) is located,
organized or residing in any Designated Jurisdiction, or (iii) is or has been (within the previous five (5) years) engaged in any transaction with any Person who is now or was then the subject of Sanctions or who is located, organized or residing in any Designated Jurisdiction. No Loan, nor the proceeds from any Loan, has been used, directly or indirectly, to lend, contribute, provide or has been otherwise made available to fund any activity or business in any Designated Jurisdiction or to fund any activity or business of any Person located, organized or residing in any Designated Jurisdiction or who is the subject of any Sanctions, or in any other manner that will result in any violation by any Person (including any Lender, the Administrative Agent, any Joint Lead Arranger, any Issuing Lender or the Swing Line Lender) of Sanctions.
9.25. Compliance with Laws . The Company, each Guarantor and each Subsidiary is in compliance with the requirements of all Laws and all orders, writs, injunctions
and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
SECTION 10.
AFFIRMATIVE COVENANTS
Until the expiration or termination of the Commitments and thereafter until all Obligations (other than contingent indemnification
obligations for which no claim has been asserted) hereunder and under the other Loan Documents are paid in full and all Letters of Credit have been terminated, the Company agrees that, unless at any time the Required Lenders shall otherwise expressly consent in writing, it will:
10.1. Reports, Certificates and Other Information .
Furnish to the Administrative Agent and each Lender:
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10.1.1. Annual Report .
Promptly when available and in any event within ninety (90) days after the close of each Fiscal Year: a copy of the
annual audited financial statements of the Company and its Subsidiaries for such Fiscal Year, including therein consolidated balance sheets and statements of earnings and cash flows of the Company and its Subsidiaries as at the end of such Fiscal Year, accompanied by a report and opinion of Ernst & Young, any of the four largest independent certified public accounting firms in the United States or any regionally recognized independent certified public accounting firm in the Unites States approved by the Administrative Agent, which report and opinion shall not be subject to any “going concern” or like qualification or exception.
10.1.2. Interim Reports .
Upon filing with the SEC, and in any event within forty-five (45) days after the end of each Fiscal Quarter, consolidated balance sheets of the Company and its Subsidiaries as of the end of such Fiscal Quarter, together with consolidated statements of earnings and cash flows for such Fiscal Quarter and for the period beginning with the first day of such Fiscal Year and ending on the last day of such Fiscal Quarter, together with a comparison of such financial statements with the corresponding period of the previous Fiscal Year, certified by a Senior Officer of the Company as having been prepared in accordance with GAAP (subject to the absence of footnotes and year-end audit adjustments).
Documents required to be delivered pursuant to Section 10.1.1 or Section 10.1.2 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address listed on Annex B or at www.sec.gov; (ii) on which such documents are posted on the Company’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent) or (iii) on which such documents are filed with the SEC on EDGAR; provided , that : (i) the Company shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its written request to the Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Company shall notify the Administrative Agent and each Lender (by facsimile or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions ( i.e. , soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request for delivery by a Lender, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
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10.1.3. Compliance Certificates .
Contemporaneously with the furnishing of a copy of each annual audit report pursuant to Section 10.1.1 and each set of quarterly statements pursuant to Section 10.1.2 (other than the quarterly statements for the period ended September 30, 2012), a duly completed compliance certificate in the form of Exhibit B , with appropriate insertions, dated the date of such annual report or such quarterly statements and signed by a Senior Officer of the Company, containing a computation of each of the financial ratios and restrictions set forth in Section 11.13 and to the effect that such officer has not become aware of any Event of Default or Unmatured Event of Default that has occurred and is continuing or, if there is any such event, describing it and the steps, if any, being taken to cure it.
10.1.4. Reports to the SEC and to Shareholders .
Promptly upon the filing thereof (unless, in each case, such documents, reports or communications are publicly available on the SEC’s internet website), copies of all regular, periodic or special reports of any Loan Party filed with the SEC; copies of all registration statements of any Loan Party filed with the SEC (other than on Form S-8); and copies of all proxy statements, financial statements or other communications made to security holders generally, or filed with any securities exchange.
10.1.5. Notice of Default, Litigation and ERISA Matters .
Within 5 Business Days, after becoming aware of any of the following, written notice describing the same and the steps being taken by the Company or the Subsidiary affected thereby with respect thereto:
(a) the occurrence of an Event of Default or an Unmatured Event of Default; (b) any litigation, arbitration or governmental investigation or proceeding not previously disclosed by the
Company to the Lenders which has been instituted or, to the knowledge of the Company, is threatened against any Loan Party or to which any of the properties of any thereof is subject which would reasonably be expected to have a Material Adverse Effect;
(c) the institution of any steps by any member of the Controlled Group or any other Person to terminate any
Pension Plan in other than a standard termination, as defined under Title IV of ERISA, or the failure of any member of the Controlled Group to make a required contribution to any Pension Plan (if such failure is sufficient to give rise to a Lien under Section 302(f) of ERISA) or to any Multiemployer Pension Plan, or the taking of any action with respect to a Pension Plan which could result in the requirement that the Company furnish a bond or other security to the PBGC or such Pension Plan, or the occurrence of any event with respect to any Pension Plan or Multiemployer Pension Plan which could
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result in the incurrence by any member of the Controlled Group of any liability, fine or penalty (including any claim or demand for withdrawal liability or partial withdrawal from any Multiemployer Pension Plan), or any material increase in the contingent liability of the Company with respect to any post-retirement welfare benefit plan or other employee benefit plan of the Company, or any notice that any Multiemployer Pension Plan is in reorganization, that increased contributions may be required to avoid a reduction in plan benefits or the imposition of an excise tax, that any such plan is or has been funded at a rate less than that required under Section 412 of the Code, that any such plan is or may be terminated in other than a standard termination, as defined under Title IV of ERISA, or that any such plan is or may become insolvent, or the occurrence of a Reportable Event but only if any of the foregoing occurrences listed in this Section 10.1.5(c) could reasonably be expected to have a Material Adverse Effect;
(d) any cancellation or material and adverse change in any insurance maintained by any Loan Party; or (e) any other event (including (i) any violation of any Environmental Law or the assertion of any
Environmental Claim or (ii) the enactment or effectiveness of any law, rule or regulation) which might reasonably be expected to have a Material Adverse Effect.
10.1.6. Management Reports .
Promptly and in any event within 10 Business Days of receipt thereof, copies of all detailed financial and management reports submitted to the Company by independent auditors (other than any routine communications between the independent auditors and the audit committee) in connection with each annual or interim audit made by such auditors of the books of the Company or any of its Subsidiaries.
10.1.7. Projections .
Not later than January 31 of each Fiscal Year, financial projections for the Company and its Subsidiaries for such Fiscal Year (including quarterly operating and cash flow budgets) prepared in a manner consistent with the projections delivered by the Company to the Lenders prior to the Closing Date or otherwise in a manner reasonably satisfactory to the Administrative Agent, accompanied by a certificate of a Senior Officer of the Company on behalf of the Company to the effect that (a) such projections were prepared by the Company in good faith, (b) the Company has a reasonable basis for the assumptions contained in such projections and (c) such projections have been prepared in accordance with such assumptions. All parties hereto acknowledge that the Company cannot and does not make any warranty or assurance that any such projections will be attained.
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10.1.8. Subordinated Debt Notices .
Promptly following receipt, copies of (a) any notice of default or acceleration received from any holder or trustee of, under or with respect to any Subordinated Debt and (b) any material amendment, waiver, consent of other modification of any documentation governing any Subordinated Debt.
10.1.9. Other Information .
Promptly from time to time, such other information concerning the Loan Parties and the Guarantors as any Lender or the Administrative Agent may reasonably request.
The Company hereby acknowledges that (a) the Administrative Agent and/or MLPFS will make available to the Lenders and the
Issuing Lenders materials and/or information provided by or on behalf of the Company hereunder (collectively, “ Company Materials ”) by posting the Company Materials on IntraLinks, DebtDomain, Syndtrak or another similar electronic system (the “ Platform ”) and (b) certain of the Lenders may be “public-side” Lenders ( i.e. , Lenders that do not wish to receive material non-public information with respect to the Company or its securities) (each, a “ Public Lender ”). The Company hereby agrees that it will use commercially reasonable efforts to identify that portion of the Company Materials that may be distributed to the Public Lenders and that (w) all such Company Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Company Materials “PUBLIC,” the Company shall be deemed to have authorized the Administrative Agent, MLPFS, the Issuing Lenders and the Lenders to treat such Company Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Company or its securities for purposes of United States Federal and state securities laws ( provided , however , that to the extent such Company Materials constitute information subject to Section 15.9 , they shall be treated as set forth in Section 15.9 ); (y) all Company Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and MLPFS shall be entitled to treat any Company Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.” Notwithstanding the foregoing, the Company shall be under no obligation to mark any Company Materials “PUBLIC”.
10.2. Books, Records and Inspections .
(a) Keep, and cause each other Loan Party and Guarantor to keep, its books and records in accordance with sound business practices sufficient to allow the preparation of financial statements in accordance with GAAP;
(b) Permit, and cause each other Loan Party and Guarantor to permit, at any reasonable time and with reasonable notice
(or at any time without notice if an Event of Default exists), any Lender or the Administrative Agent or any representative thereof to (i) inspect the properties and operations of the Loan Parties and the Guarantors, (ii) visit any or all of its offices, to discuss its financial matters with its officers and its
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independent auditors, and to examine (and, at the expense of the Loan Parties and Guarantors, photocopy extracts from) any of its books or other records and (iii) inspect the Inventory and other tangible assets of the Loan Parties and Guarantors, to perform appraisals of the equipment of the Loan Parties and Guarantors, and to inspect, audit, check and make copies of and extracts from the books, records, computer data, computer programs, journals, orders, receipts, correspondence and other data relating to Inventory, Accounts and any other collateral; provided , however , excluding any such inspections or audits during the continuation of an Event of Default, only the Administrative Agent on behalf of the Lenders may exercise rights under this Section 10.2(b) and the Administrative Agent shall not perform more than one such inspection or audit per calendar year absent the existence of an Event of Default. All such inspections or audits by the Administrative Agent shall be at the Administrative Agent’s expense and all such inspections or audits by a Lender shall be at such Lender’s expense, provided that so long as an Event of Default exists, all such inspections or audits by the Administrative Agent shall be at the Company’s expense, all such inspections or audits by a Lender shall be at such Lender’s expense and the Administrative Agent and the Lenders shall be able to perform as many inspections or audits as they desire during any such Event of Default. The Administrative Agent and the Lenders will give the Company the opportunity to participate in any discussions with such independent auditors.
10.3. Maintenance of Property; Insurance . (a) Keep, and cause each other Loan Party and Guarantor to keep, all property necessary in the business of the Loan Parties and
the Guarantors in good working order and condition, ordinary wear and tear and casualty excepted, and from time to time make, or cause to be made, all repairs, renewals, additions, improvements and replacements thereto necessary in order that the business carried on in connection therewith may be properly conducted at all times in accordance with customary and prudent business practices for similar businesses.
(b) Maintain, and cause each other Loan Party and Guarantor to maintain, with responsible insurance companies, such insurance
coverage as may be required by any law or governmental regulation or court decree or order applicable to it (including, without limitation, liability insurance for the directors and officers of such Loan Party or Guarantor) and such other insurance, to such extent and against such hazards and liabilities as is customarily maintained by companies similarly situated; and, upon request of the Administrative Agent or any Lender, furnish to the Administrative Agent or such Lender a certificate (but, unless an Event of Default exists, in no event shall the Company be required to deliver such certificate more frequently than once per calendar year) setting forth in reasonable detail the nature and extent of all insurance maintained by the Loan Parties and the Guarantors. The Company shall cause each issuer of an insurance policy to provide the Administrative Agent with an endorsement (i) showing the Administrative Agent as lender loss payee or mortgagee, as applicable, with respect to each policy of property or casualty insurance and naming the Administrative Agent, for the benefit of the Lenders, as an additional insured with respect to each policy of liability insurance, (ii) providing that at least ten (10) days’ notice will be given to the Administrative Agent pursuant to the applicable policy prior to any cancellation of, material reduction or material adverse change in coverage provided by or other material modification to such policy and (iii) reasonably acceptable in all other respects to the Administrative Agent.
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(c) AT ANY TIME DURING THE EXISTENCE OF AN EVENT OF DEFAULT, UNLESS THE COMPANY PROVIDES THE
ADMINISTRATIVE AGENT WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT WITHIN 15 BUSINESS DAYS AFTER REQUEST THEREFOR, THE ADMINISTRATIVE AGENT MAY, FOLLOWING PRIOR NOTICE TO THE COMPANY, PURCHASE INSURANCE AT THE COMPANY’S EXPENSE TO PROTECT THE ADMINISTRATIVE AGENT’S AND THE LENDERS’ INTERESTS IN THE COLLATERAL. THE COVERAGE THAT THE ADMINISTRATIVE AGENT PURCHASES MAY NOT PAY ANY CLAIM THAT IS MADE AGAINST ANY LOAN PARTY OR GUARANTOR IN CONNECTION WITH THE COLLATERAL. THE COMPANY MAY LATER CANCEL ANY INSURANCE PURCHASED BY THE ADMINISTRATIVE AGENT, BUT ONLY AFTER PROVIDING THE ADMINISTRATIVE AGENT WITH EVIDENCE THAT THE COMPANY HAS OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT. IF THE ADMINISTRATIVE AGENT PURCHASES INSURANCE FOR THE COLLATERAL, THE COMPANY WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT MAY BE IMPOSED WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE PRINCIPAL AMOUNT OF THE LOANS OWING HEREUNDER. THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF THE INSURANCE THE LOAN PARTIES AND GUARANTORS MAY BE ABLE TO OBTAIN ON THEIR OWN.
10.4. Compliance with Laws; Payment of Taxes and Liabilities . (a) Comply, and cause each other Loan Party and Guarantor to comply, in all material respects with all applicable laws, rules,
regulations, decrees, orders, judgments, licenses and permits, except where failure to comply could not reasonably be expected to have a Material Adverse Effect; (b) without limiting clause (a ) above, ensure, and cause each other Loan Party and Guarantor to ensure, that no person who owns a controlling interest in or otherwise controls a Loan Party or Guarantor is or shall be (i) listed on the Specially Designated Nationals and Blocked Person List maintained by OFAC and/or any other similar lists maintained by OFAC pursuant to any authorizing statute, Executive Order or regulation or (ii) a person designated under Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001), any related enabling legislation or any other similar Executive Orders, (c) without limiting clause (a ) above, comply, and cause each other Loan Party and Guarantor to comply, with all applicable Bank Secrecy Act (“ BSA ”) and anti-money laundering laws and regulations and (d) pay, and cause each other Loan Party and Guarantor to pay, prior to delinquency, all federal and state income and other material taxes and other governmental charges against it or any collateral, as well as claims of any kind which, if unpaid, could become a Lien (other than Permitted Liens) on any of its property; provided that the foregoing shall not require any Loan Party to pay any such tax or charge so long as it shall contest the validity thereof in good faith by appropriate proceedings and shall set aside on its books adequate reserves with respect thereto in accordance with GAAP and, in the case of a claim which could become a Lien (other than a Permitted Lien) on any collateral, such contest proceedings shall stay the foreclosure of such Lien (other than a Permitted Lien) or the sale of any portion of the collateral to satisfy such claim.
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10.5. Maintenance of Existence, etc . (a) Maintain and preserve, and cause each other Loan Party and Guarantor to maintain and preserve, (i) its existence in the
jurisdiction of its organization (except in a transaction permitted by Section 11.6(b) , Section 11.6(c) or Section 11.4(a)(iii) ), (ii) its good standing under the Laws of the jurisdiction of its incorporation or organization, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect, (iii) its qualification to do business and good standing in each jurisdiction where the nature of its business makes such qualification necessary (other than such jurisdictions in which the failure to be qualified or in good standing could not reasonably be expected to have a Material Adverse Effect) and (iv) the rights, licenses, permits (including those required under applicable Environmental Laws), franchises, patents, copyrights, trademarks and trade names, in each case, material to the conduct of its businesses; provided , however , that the Loan Parties and the Guarantors shall not be required to preserve any such right, license or franchise, if the Board of Directors of the Company shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries and Guarantors, taken as a whole, and that the loss thereof is not adverse in any material respect to the Administrative Agent or the Lenders; and (b) defend all of the foregoing against all claims, actions, demands, suits or proceedings at law or in equity or by or before any governmental instrumentality or other agency or regulatory authority.
10.6. Use of Proceeds . Use the proceeds of the Loans, and the Letters of Credit, solely to refinance existing indebtedness, for working capital purposes, for the
Central Parking Acquisition and the costs and expenses related thereto, for Permitted Acquisitions, for Capital Expenditures, for Special Payments, and for other general business purposes; and not use or permit any proceeds of any Loan to be used, either directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of “purchasing or carrying” any Margin Stock in any manner that would constitute a violation of Regulation U.
10.7. Employee Benefit Plans . (a) Maintain, and use good faith efforts to cause each other member of the Controlled Group to maintain, each Pension Plan in
substantial compliance with all applicable requirements of law and regulations. (b) Make, and use good faith efforts to cause each other member of the Controlled Group to make, on a timely basis, all required
contributions to any Multiemployer Pension Plan. (c) Not, and use good faith efforts to not permit any other member of the Controlled Group to (i) fail to meet the minimum
funding standards of Code Section 412, (ii) terminate or withdraw from any Pension Plan or Multiemployer Pension Plan, (iii) take any other action with respect to any Pension Plan that would reasonably be expected to entitle the PBGC to terminate, impose liability in respect of, or cause a trustee to be appointed to administer, any Pension Plan, or (iv) permit to occur a Reportable Event, unless the actions or events described in clauses (i), (ii), (iii) and (iv) individually or in the aggregate would not have a Material Adverse Effect.
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10.8. Environmental Matters . If any release or threatened release or other disposal of Hazardous Substances requiring any reporting, investigation, monitoring,
remedial, removal or cleanup action pursuant to applicable Environmental Law shall occur or shall have occurred on any real property or any other assets of any Loan Party or Guarantor, the Company shall, or shall cause the applicable Loan Party or Guarantor to, cause the prompt containment and removal of such Hazardous Substances and the remediation of such real property or other assets as necessary to comply with all Environmental Laws and to preserve the value of such real property or other assets. Without limiting the generality of the foregoing, the Company shall, and shall cause each other Loan Party and Guarantor to, comply with any Federal or state judicial or administrative order requiring the performance at any real property of any Loan Party or Guarantor of activities in response to the release or threatened release of a Hazardous Substance. The Company shall, and shall cause its Subsidiaries to, dispose of any Hazardous Substances or other wastes generated by their operations at facilities licensed to accept the type of waste at issue, and which are operating in material compliance with Environmental Laws. Notwithstanding the foregoing, the Company, each other Loan Party and each Guarantor may each diligently contest in good faith by appropriate action any requirement imposed by any Governmental Authority under Environmental Laws (an “ Environmental Requirement ”); provided , that , (1) if any Obligations then remain outstanding, no Event of Default has occurred and is continuing, (2) the Company has given the Administrative Agent written notice of such contest, (3) such contest shall not subject the Administrative Agent or any Lender to any liability and shall not jeopardize any Lien or security interest of the Administrative Agent and/or the Lenders in the Collateral, (4) such contest shall stay imposition and enforcement of such Environmental Requirement and (5) no Lien (other than a Permitted Lien) upon the assets of the Company and its Subsidiaries shall result from such contest.
10.9. Pledged Assets; Further Assurances . (a) Within forty-five (45) days (or such later date as the Administrative Agent may reasonably agree) from the request therefor by
the Administrative Agent, take, and cause each other Loan Party and Guarantor to take, such actions as are necessary or as the Administrative Agent or the Required Lenders may reasonably request from time to time to give effect to the intent of, and to aid in the exercise and enforcement of the rights and remedies of the Administrative Agent and the Lenders under the Loan Documents. At all times the Company shall ensure that the Obligations are secured by all of the personal property and real property of the Company and each Guarantor other than Excluded Property (as well as all Capital Securities of each Wholly-Owned Domestic Subsidiary (other than a Foreign Holdco) and 66% of all Capital Securities of each Foreign Subsidiary (other than Immaterial Foreign Subsidiaries) and each Foreign Holdco and guaranteed by each Wholly-Owned Domestic Subsidiary (including, within thirty (30) days after the acquisition or creation thereof, any Wholly-Owned Domestic Subsidiary acquired or created after the Closing Date but excluding (x) any Foreign Holdco, (y) Central Parking Finance Trust and (z) APCOA Bradley Parking Company, LLC until such entity becomes a Guarantor). The Company shall take, and cause each other Loan Party and Guarantor to take, such actions as are necessary or as the Administrative Agent or the Required Lenders may reasonably request in furtherance of the foregoing, including without limitation (i) the execution and delivery of guaranties, security agreements, pledge agreements, Mortgages,
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financing statements and other documents, and the filing or recording of any of the foregoing, (ii) the delivery of certificated securities (if the Capital Securities being pledged are certificated), and other collateral with respect to which perfection is obtained by possession and (iii) the delivery of such other documentation as the Administrative Agent may reasonably request in connection with the foregoing, including, without limitation, certified resolutions and other organizational and authorizing documents of such Person and favorable opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above and the perfection of the Administrative Agent’s Liens thereunder), all in form and substance reasonably satisfactory to the Administrative Agent.
(b) The Company shall notify the Lenders and the Administrative Agent, within ten (10) days after the occurrence thereof, of the
acquisition of any material property that is not Excluded Property by the Company or any Guarantor that is not subject to the existing Collateral Documents or any Person becoming a Subsidiary or the creation of any Joint Venture or any Foreign Subsidiary ceasing to be an Immaterial Foreign Subsidiary and any other event or condition, other than the passage of time, that may require additional action of any nature in order to create or preserve the effectiveness and perfected status of the liens and security interests of the Lenders and the Administrative Agent with respect to such property pursuant to the Collateral Documents, including without limitation, to the extent required by the Collateral Documents, delivering the originals of all promissory notes and other instruments payable to the Company or any Guarantor to the Administrative Agent, delivering the originals of all stock certificates or other certificates evidencing the Capital Securities owned by the Company or any Guarantor at any time, which are required by the foregoing Section 10.9(a ) to be pledged to the Administrative Agent for the benefit of the holders of the Obligations and cause any new Subsidiary to become a Guarantor pursuant to the Guaranty and Collateral Agreement to the extent such Subsidiary is a Wholly-Owned Domestic Subsidiary (other than a Foreign Holdco).
SECTION 11.
NEGATIVE COVENANTS
Until the expiration or termination of the Commitments and thereafter until all Obligations (other than contingent indemnification obligations for which no claim has been asserted) hereunder and under the other Loan Documents are paid in full and all Letters of Credit have been terminated, the Company agrees that, unless at any time the Required Lenders shall otherwise expressly consent in writing, it will:
11.1. Debt . Not, and not permit any other Loan Party to, create, incur, assume or suffer to exist any Debt, except: (a) Obligations under this Agreement and the other Loan Documents; (b) Debt of any Guarantor owing to the Company or to any other Guarantor; provided that to the extent such Debt shall be
evidenced by any note or instrument, upon the written
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request of the Administrative Agent, such instrument shall be a demand note in form and substance reasonably satisfactory to the Administrative Agent and delivered to the Administrative Agent pursuant to the Collateral Documents, and the obligations under such demand note shall be subordinated to the Obligations of the Company hereunder in a manner reasonably satisfactory to the Administrative Agent;
(c) Subordinated Debt, provided that (A) immediately before and after (on a Pro Forma Basis acceptable to the Administrative
Agent and supported by such certificates required by the Administrative Agent) the incurrence of any such Subordinated Debt, no Unmatured Event of Default or Event of Default shall exist and the Company shall be in compliance on a Pro Forma Basis with all financial and other covenants contained herein as of the date of incurrence of such Subordinated Debt and (B) all agreements, documents and instruments relating to such Subordinated Debt shall have been delivered to and approved by the Administrative Agent and the Required Lenders prior to the incurrence of such Subordinated Debt;
(d) Hedging Obligations; (e) Debt described on Schedule 11.1 and any extension, renewal or refinancing thereof so long as the principal amount thereof is
not increased (and as such amount is reduced from time to time) and no modifications of the terms thereof which are less favorable to the Company or more restrictive on the Company in any material manner shall be permitted;
(f) Contingent Liabilities arising with respect to customary indemnification obligations in favor of sellers in connection with
Permitted Acquisitions and purchasers in connection with dispositions permitted under Section 11.4 ; (g) Earnouts with respect to Permitted Acquisitions made by the Company; (h) trade accounts payable and accrued expenses arising in the ordinary course which are current or past due only 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;
(i) Debt which is non-recourse to the Company or its Subsidiaries, provided that the aggregate amount of such non-recourse Debt
does not exceed $20,000,000 and such non-recourse terms and the other terms of such financing are reasonably acceptable to the Administrative Agent;
(j) Debt incurred to finance insurance premiums in the ordinary course of business consistent with past practices of the
Company; (k) Debt of Subsidiaries and Joint Ventures which are not Guarantors owing to the Company or a Guarantor not exceeding at any
time outstanding an aggregate amount equal to the book value of five percent (5%) of Total Assets; provided , that any such Debt shall reduce, dollar for dollar, the available transactions permitted by Section 11.10(p );
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(l) Debt represented by Facility Leases, Ordinary Course Equipment Leases and Facility Management Agreements; (m) Debt other than as described in clauses (a) through (l) above and (n) through (s) below not exceeding an aggregate amount
equal to the book value of five percent (5%) of Total Assets, provided that not more than 50% of the Debt incurred or otherwise outstanding pursuant to this clause (m) may be secured by Permitted Liens;
(n) intercompany Debt arising pursuant to Investments permitted under Section 11.10 ; (o) Debt arising from Ordinary Course Capital Leases; (p) Debt for bank overdrafts or returned items incurred in the ordinary course of business that are promptly repaid; (q) unsecured Debt owing to banks or other financial institutions under credit cards issued to officers and employees for, and
constituting, business-related expenses in the ordinary course of business; provided , that , such Debt is extinguished within ninety (90) days after the incurrence thereof;
(r) Debt representing deferred compensation to employees of any Loan Party incurred in the ordinary course of business; and (s) obligations arising under indemnity agreements to title insurers to cause such title insurers to issue the Administrative Agent
title insurance policies required hereunder. 11.2. Liens . Not, and not permit any other Loan Party to, create or permit to exist any Lien on any of its real or personal properties, assets or rights
of whatsoever nature (whether now owned or hereafter acquired), except: (a) Liens arising under the Loan Documents; (b) 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 the 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;
(c) deposits or pledges to secure payment of worker’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
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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;
(d) Liens securing taxes, assessments, levies or other governmental charges which are not overdue for more than thirty (30) days
or which, in an amount not exceeding $15,000,000 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;
(e) 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 reasonable opinion of the Administrative Agent interferes with the use of the property subject thereto by the Company or such Subsidiary in the ordinary conduct of its business;
(f) Liens described on Schedule 11.2 as of the Closing Date, and any extensions or renewals of the foregoing, provided that
neither the Debt secured by any such existing Liens nor the property subject thereto shall increase; (g) 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; (h) 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 Debt of the Company or any of its Affiliates; (i) 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 be created or suffer to exist upon such tangible fixed asset if the outstanding principal amount of the Debt secured by such Lien does not exceed the purchase price paid by the Company or such Subsidiary for such tangible fixed asset provided that (i) such Lien does not encumber any other asset at any time owned by the Company or such Subsidiary, (ii) not more than one such Lien shall encumber such tangible fixed asset at any one time, and (iii) the aggregate amount of Debt secured by all such Liens shall not exceed the amounts permitted by Sections 11.1(e) and (m );
(j) Liens on unearned insurance premiums to secure Debt referred to in Section 11.1(j ); (k) Liens arising by applicable law in respect of employees’ wages, salaries or commissions not overdue;
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(l) Liens arising out of judgments or awards not exceeding $15,000,000 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;
(m) prepayments and security deposits in the ordinary course of business securing leases, subleases, licenses, sublicenses, use and
occupancy agreements, utility services and similar transactions, in each case, permitted hereunder and not required as a result of any breach of any agreement or default in the payment of any obligation;
(n) Liens of a collection bank arising under Section 4-210 of the UCC or similar provisions of applicable Law on items in the
course of collection; (o) normal and customary Liens encumbering deposits (including rights of setoff) in favor of banks or other depository
institutions arising as a matter of Law and/or created pursuant to any agreement (including account control agreements) agreed to by the Administrative Agent;
(p) any interest of title of a lessor under any license, sublicense, lease or sublease entered into by the Company or any Subsidiary
in the ordinary course of business and covering only the licensed, sublicensed, leased or subleased assets; provided , that such license, sublicense, lease or sublease is not prohibited by the terms of this Agreement;
(q) Liens arising solely from precautionary UCC financing statement filings with respect to operating leases entered into by the
Company or any Subsidiary in the ordinary course of business with respect to any lease not prohibited by this Agreement; (r) Liens solely on any cash earnest money deposits made by the Company or any of its Subsidiaries in connection with any
Investments permitted under Section 11.10 ; (s) Liens, if any, in favor of the Administrative Agent on Cash Collateral delivered pursuant to Section 2.7 ; and (t) other Liens not described above securing obligations other than Debt for borrowed money, in an aggregate amount at any time
outstanding not to exceed $15,000,000.
11.3. Restricted Payments . Not, and not permit any other Loan Party to, make, pay, declare, or authorize any Restricted Payment, other than such Restricted
Payments made (i) to the extent payable solely in shares of Capital Securities (other than Disqualified Stock) of the Company, (ii) to the Company or any Guarantor, (iii) to the extent that the same constitute Special Payments made in compliance with the definition of such term, (iv) to pay the Base Cash Amount (as defined in, and as determined in accordance with, the Central Parking Acquisition Agreement), to the extent such payment constitutes a Restricted Payment or (v) to purchase Capital Securities from present or former employees, officers, directors or consultants of the Company and its Subsidiaries or their respective estates, spouses or family members upon the death, disability or termination of employment of such employee, officer, director or consultant, in an aggregate amount for all
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such Restricted Payments not to exceed $10,000,000 during the term of this Agreement. The Company will not issue Disqualified Stock.
11.4. Mergers, Consolidations, Sales . (a) Not, and not permit any other Loan Party to, make any Acquisition, nor merge or consolidate or amalgamate with any other
Person, nor dissolve or liquidate, nor take any other action having a similar effect to any of the foregoing, nor enter into any joint venture or similar arrangement with any other Person, except (i) any Acquisition by the Company or any Guarantor where (collectively, “ Permitted Acquisitions ”):
(A) the business or division acquired are for use, or the Person acquired is engaged, in businesses similar, or
reasonably related, complementary or ancillary, to those engaged in by the Loan Parties on the Closing Date; (B) immediately before and after giving effect to such Acquisition, no Event of Default shall exist; (C) the Company shall have delivered to the Administrative Agent a certificate, in form and substance
satisfactory to the Administrative Agent, demonstrating that, upon giving effect to such Acquisition on a Pro Forma Basis, the Total Debt to EBITDA Ratio is less than (x) 3.25 to 1.0, for any Acquisition to be consummated before September 30, 2016 or (y) 3.00 to 1.0, for any Acquisition to be consummated on or after September 30, 2016;
(D) in the case of the Acquisition of any Person, the Board of Directors of such Person has approved such
Acquisition; (E) after giving effect to any Acquisition, the Revolving Loan Availability shall equal or exceed
$15,000,000; (F) with respect to any Acquisition in which the aggregate consideration paid by the Loan Parties exceeds
$20,000,000, within 20 Business Days after the consummation of such Acquisition, the Administrative Agent shall have received complete executed or conformed copies of each material document, instrument and agreement to be executed in connection with such Acquisition together with all lien search reports and lien release letters and other documents as the Administrative Agent may require to evidence the termination of Liens on the assets or business to be acquired, provided that the Lien termination may occur simultaneously with the closing of such Acquisition; and
(G) with respect to any Acquisition in which the aggregate consideration paid by the Loan Parties exceeds
$20,000,000, not less than ten (10) Business Days prior to such Acquisition, the Administrative Agent shall have received an acquisition summary with respect to the Person and/or business or division to be acquired, such summary to include a reasonably
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detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which they are available and as otherwise available), the material terms and conditions, including economic terms, of the proposed Acquisition, and the Company’s calculation of EBITDA on a Pro Forma Basis relating thereto;
(ii) as may be otherwise permitted pursuant to Sections 11.6(b) , 11.6(c) and/or 11.10(p) and (iii) any Subsidiary may be dissolved so long as (x) all of the assets of such Subsidiary (excluding, at the option of the Company, assets of such Subsidiary having an aggregate fair market value of not more than $10,000) have been transferred or otherwise conveyed to the Company or any Guarantor prior to or concurrently with such dissolution or (y) at the time of such dissolution, (1) such Subsidiary had total assets with a fair market value not in excess of $10,000 and (2) such Subsidiary, together with all Subsidiaries so dissolved during the Fiscal Year in which such dissolution occurs, had total assets with a fair market value not in excess of $100,000.
(b) Not, and not permit any other Loan Party to, sell, lease, license, transfer, assign or otherwise dispose of all or any portion of its business, assets, rights, revenues or property, real, personal or mixed, tangible or intangible, whether in one or a series of transactions, other than inventory and assets sold in the ordinary course of business upon customary credit terms and sales of material or equipment no longer useful in the business of the Loan Parties and sales of worn-out and surplus equipment and abandonment or other disposition of intellectual property no longer material to the business of the applicable Loan Party, and not permit or suffer any Subsidiary to do any of the foregoing (each, an “ Asset Disposition” ) provided , however , that this Section 11.4(b ) shall not prohibit:
(i) Asset Dispositions of equipment as to which proceeds are used within one hundred and eighty (180) days to purchase
equipment of at least equivalent value to those disposed of and if, immediately before and after such transaction, no Unmatured Event of Default or Event of Default shall exist;
(ii) Asset Dispositions as to which, and to the extent that, the proceeds thereof are used to make optional repayments on the
Loans, provided that such prepayments on the Revolving Loans shall also permanently reduce the Aggregate Revolving Commitments by the amount of such prepayments;
(iii) Asset Dispositions of property pursuant to sale and lease-back transactions and similar arrangements in an aggregate
amount not to exceed $20,000,000 during the term of this Agreement; (iv) to the extent constituting an Asset Disposition, Investments otherwise permitted under Section 11.10 ; (v) (A) any Asset Disposition otherwise permitted pursuant to Section 11.6(a) and (B) any Asset Disposition by a Foreign
Subsidiary to another Foreign Subsidiary; (vi) licenses of intellectual property on a non-exclusive basis or on an exclusive basis so long as such exclusive licensing is
limited to geographic areas, particular fields of use, customized products for customers or limited time periods, and so long as after
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giving effect to such license, the Loan Parties retain sufficient rights to use the subject intellectual property as to enable them to continue to conduct their business in the ordinary course;
(vii) Asset Dispositions of Cash Equivalent Investments in the ordinary course of business and conversions of Cash Equivalent
Investments into cash or other Cash Equivalent Investments; (viii) sales or discounting, on a non-recourse basis and in the ordinary course of business of past due Accounts in connection
with the collection or compromise thereof; (ix) Asset Dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain
or by condemnation or similar proceeding of, any property or asset of any Loan Party or any Subsidiary; (x) Asset Dispositions of property to the extent that such property is exchanged for credit against the purchase price of similar
replacement property or the proceeds of such disposition are promptly applied to the purchase price of such replacement property; (xi) any Asset Disposition required to be made pursuant to the DOJ Stipulation; and (xii) any other Asset Disposition not described in the preceding subclauses of this Section 11.4(b) if the aggregate book
value (disregarding any write-downs of such book value other than ordinary depreciation and amortization) of all of the business, assets, rights, revenues and property disposed of after the Closing Date in reliance on this subclause (b)(xii) shall be less than 7.5% of the book value of Total Assets at such time (after giving effect to such transaction) and if, immediately before and after such Asset Disposition, no Unmatured Event of Default or Event of Default shall exist;
provided , further , however , in the case of any of the foregoing Asset Dispositions described in subclauses (i), (ii), (iii) and/or (xii), the Company shall not, and shall not permit any of its Subsidiaries to, consummate any such Asset Disposition unless (A) the Company (or the Subsidiary, as the case may be) receives consideration at the time of such Asset Disposition at least equal to the fair market value of the assets and (B) with respect to any such Asset Disposition, or series of related Asset Dispositions, of assets having a fair market value of less than $5,000,000, at least 75% of the consideration therefor received by the Company or such Subsidiary is in the form of cash; provided that the amount of (x) any liabilities (as shown on the Company’s or such Subsidiary’s most recent balance sheet), of the Company or any Subsidiary that are assumed by the transferee of any such assets such that the Company or such Subsidiary have no further liability and (y) any securities, notes or other obligations received by the Company or any such Subsidiary from such transferee that are converted within one hundred and eighty (180) days following the closing of such disposition by the Company or such Subsidiary into cash (to the extent of the cash received), shall be deemed to be cash for purposes of this provision and the definition of Net Cash Proceeds.
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11.5. Modification of Organization Documents . Not permit the Organization Documents of any Loan Party to be amended or modified in any way which could reasonably be expected
to materially adversely affect the interests of the Lenders. 11.6. Transactions with Affiliates . Not, and not permit any other Loan Party to, take any actions, nor enter into any transactions, of the types described in Sections 11.1 ,
11.2 , 11.3 , 11.4 , 11.10 , 11.14 or 11.15 , directly or indirectly, with, or for the benefit of, any officer, director or Affiliate of any Loan Party (each of the foregoing, an “ Affiliate Transaction ”) except for intercompany transactions specifically permitted by those sections, and except as follows:
(a) transactions between or among the Company and/or the Guarantors shall be permitted; (b) any Subsidiary may merge with or into another Subsidiary or into the Company, provided that (i) there is no Unmatured Event
of Default or Event of Default which would arise from, such merger, (ii) subject to clause (iii) below, if any such merger involves a Guarantor, the Guarantor shall be the surviving Person, (iii) if any such merger involves the Company, the Company shall be the surviving Person and (iv) if 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;
(c) upon notice to and consent of the Administrative Agent, any Subsidiary may merge with or into a newly-created Subsidiary
which is incorporated, formed or otherwise organized pursuant to the laws of the State of Delaware, solely for the purpose of re-organizing the previously existing Subsidiary under the laws of the State of Delaware, provided that (i) there is no Unmatured Event of Default or Event of Default which would arise from, such merger, and (ii) if any such merger involves a Guarantor, the surviving Subsidiary shall become a Guarantor, and the net worth of such surviving Subsidiary immediately after the merger shall be equal to or greater than the Guarantor’s net worth immediately preceding such merger; and
(d) Affiliate Transactions, Facility Management Agreements and Facility Leases entered into in the ordinary course of business
shall be permitted that are on terms that are no less favorable to the Company or the relevant Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Subsidiary with an unrelated Person.
11.7. [ Reserved ] . 11.8. Inconsistent Agreements . Not, and not permit any other Loan Party to, enter into any agreement, including without limitation any amendments to existing
agreements, containing any provision which would (a) be violated or breached by any borrowing by the Company hereunder or by the performance by any
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Loan Party of any of its obligations hereunder or under any other Loan Document, (b) prohibit any Loan Party from granting to the Administrative Agent and the Lenders, a Lien on any of its assets, now or hereafter acquired, or (c) create or permit to exist or become effective any encumbrance or restriction on the ability of any Subsidiary to (i) pay dividends or make other distributions to the Company or any other Subsidiary, or pay any Debt owed to the Company or any other Subsidiary, (ii) make loans or advances to any Loan Party or (iii) transfer any of its assets or properties to any Loan Party; (x) except (in respect of any of the matters referred to in clauses (b) and (c) above only) for (A) customary restrictions and conditions contained in agreements relating to the sale of all or a substantial part of the assets of any Subsidiary pending such sale, provided that such restrictions and conditions apply only to the Subsidiary to be sold and such sale is permitted hereunder, (B) restrictions or conditions imposed by any agreement relating to purchase money Debt, Capital Leases and other secured Debt permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Debt, (C) customary provisions in leases, Joint Venture agreements (created in the ordinary course consistent with past practices) and other contracts restricting the assignment thereof, (D) customary provisions restricting assignment or transfer of any agreement entered into in the ordinary course of business and (E) any agreement in effect at the time that any Subsidiary is acquired by the Company, so long as such agreement was not entered into in contemplation of such Person becoming a Subsidiary and (y) except (in respect of the matter described in clause (c)(i) above only) for customary restrictions on the ability of any Subsidiary to pay dividends or make other distributions to the Company or any other Subsidiary or pay any debt owed to the Company or any other Subsidiary, in each case contained in the Subordinated Debt Documents. The Company shall use its best efforts to avoid entering into Joint Venture agreements which would violate the foregoing terms of this Section 11.8 .
11.9. Business Activities; Issuance of Equity . Not, and not permit any other Loan Party to, engage in any line of business other than the businesses engaged in on the Closing Date
and businesses reasonably related, complementary or ancillary thereto. Not, and not permit any other Loan Party to, issue any Capital Securities other than (a) any issuance of shares of the Company’s Capital Securities (provided any such issued shares shall not be Disqualified Stock), or (b) any issuance by a Subsidiary to the Company or another Subsidiary in accordance with Section 11.3 .
11.10. Investments, Loans and Advances . Not, and not permit any other Loan Party or Subsidiary to, make any Investments; other than: (a) contributions by the Company to the capital of any Wholly-Owned Subsidiary, or by any Subsidiary to the capital of any other
Wholly-Owned Domestic Subsidiary, so long as the recipient of any such capital contribution has guaranteed the Obligations and such guaranty is secured by a pledge of all of its Capital Securities and all of its real and personal property (other than Excluded Property), in each case in accordance with Section 10.9 ;
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(b) to the extent constituting Investments, pledges and deposits of the type described in Section 11.2(c) in the ordinary course of
business, in each case, to the extent permitted by Section 11.2(c) ; (c) Investments constituting Debt permitted by Section 11.1 ; (d) Contingent Liabilities constituting Debt permitted by Section 11.1 and Liens permitted by Section 11.2 ; (e) Investments in Cash Equivalent Investments; (f) bank deposits in the ordinary course of business; (g) Investments in securities of Account Debtors received pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such account debtors or settlement of delinquent accounts; (h) Permitted Acquisitions; (i) those Investments described in Schedule 11.10 as of the Closing Date (including any reinvestments thereof); (j) extensions of trade credit made in the ordinary course of business on customary credit terms and commissions, relocation,
travel and similar advances made to officers and employees and to consultants for consulting services and reimbursable expenses, all in the ordinary course of business, provided that advances to officers, employees and to consultants for purposes other than commission, relocation and travel shall not exceed $2,500,000 in aggregate at any time outstanding;
(k) Investments received in settlement of debts owing to the Company or its Subsidiaries or as consideration for Asset
Dispositions otherwise permitted under Section 11.4 ; (l) advances made by the Company or its Subsidiaries or Joint Ventures to clients in connection with Facility Leases and Facility
Management Agreements of the Company in the ordinary course of business consistent with past practices; (m) to the extent any Capital Expenditure permitted to be made pursuant to Section 11.18 herein would constitute an Investment,
such Capital Expenditure; (n) Investments received as the non-cash portion of consideration received in connection with transactions permitted pursuant to
Section 11.4(b) ; (o) Investments in the Company or any Guarantor; (p) the Company or any Guarantor may purchase or otherwise acquire any Capital Securities of or other ownership interest in, or
debt securities of or other evidences of Debt of, any Subsidiary or Joint Venture that is not a Guarantor; or 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
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contribution or acquire any interest whatsoever in, any Subsidiary or Joint Venture that is not a Guarantor, in the aggregate for all such transactions not to exceed at any time outstanding an aggregate amount equal to the book value of five percent (5%) of Total Assets; provided , that any of the foregoing transactions shall reduce, dollar for dollar, the available Debt permitted by Section 11.1(k) ;
(q) Investments in Hedging Agreements entered into in the ordinary course of business for bona fide hedging purposes and not
for speculation; (r) the Central Parking Acquisition; (s) other Investments in an aggregate amount not to exceed at any time outstanding the book value of five percent (5%) of Total
Assets;
provided that (x) any Investment which when made complies with the requirements of the definition of the term “ Cash Equivalent Investment ” may continue to be held notwithstanding that such Investment if made thereafter would not comply with such requirements; and (y) no new Investment which would otherwise be permitted by clause (c), (d), or (h) shall be permitted to be made if, immediately before or after giving effect thereto, any Event of Default or Unmatured Event of Default exists.
11.11. Restriction of Amendments to Certain Documents . (a) Not amend or otherwise modify, or waive any rights under, or permit any other Loan Party to amend or otherwise modify or
waive any rights under, the Subordinated Debt Documents if, in any case, such amendment, modification or waiver could reasonably be expected to be material and adverse to the interests of the Lenders.
(b) Not amend or otherwise modify, or waive any rights under, or permit any other Loan Party to amend or otherwise modify or
waive any rights under, the Central Parking Acquisition Documents if, in any case, such amendment, modification or waiver could reasonably be expected to be material and adverse to the interests of the Lenders.
11.12. Fiscal Year . Not change its Fiscal Year (except that, the Company may change the Fiscal Year of Central Parking to be consistent with the Fiscal
Year of the Company). 11.13. Financial Covenants .
11.13.1. Fixed Charge Coverage Ratio .
Not permit the Fixed Charge Coverage Ratio to be less than (i) 1.25 to 1.0 as of the end of any Fiscal Quarter ending from the Closing Date through and including June 30, 2014 and (ii) 1.35 to 1.0 as of the end of any Fiscal Quarter ending thereafter.
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11.13.2. Total Debt to EBITDA Ratio .
Not permit the Total Debt to EBITDA Ratio to exceed (i) 4.5 to 1.0 as of the end of any Fiscal Quarter ending from the Closing Date through and including June 30, 2013, (ii) 4.25 to 1.0 as of the end of any Fiscal Quarter ending from July 1, 2013 through and including December 31, 2013, (iii) 4.0 to 1.0 as of the end of any Fiscal Quarter ending from January 1, 2014 through and including June 30, 2014, (iv) 3.75 to 1.0 as of the end of any Fiscal Quarter ending from July 1, 2014 through and including June 30, 2015, (v) 3.5 to 1.0 as of the end of any Fiscal Quarter ending from July 1, 2015 through and including June 30, 2016 and (vi) 3.25 to 1.0 as of the end of any Fiscal Quarter ending thereafter.
11.14. Repayment or Redemption of Debt; Cancellation of Debt . Not make, or permit any Subsidiary to make, any optional payment, defeasance (whether a covenant defeasance, legal defeasance or
other defeasance), prepayment or redemption of any of its or any of its Subsidiaries’ Debt (except for (x) Debt arising under the Loan Documents, (y) payments made in Capital Securities which could not create an Event of Default and (z) Ordinary Course Lease Termination Payments); or amend or modify, or consent or agree to any amendment or modification of, any instrument or agreement under which any of its Subordinated Debt is issued or created or otherwise related thereto (other than any amendment or modification permitted under Section 11.11(a) ); or enter into any agreement or arrangement providing for any defeasance of any kind of any of its Subordinated Debt; except as may otherwise be permitted pursuant to Sections 11.3 and 11.6 . Not, and not permit any other Loan Party to, cancel any claim or debt owing to it, except for reasonable consideration or in the ordinary course of business.
11.15. Affiliate Amounts . Except as set forth on Schedule 11.15 , the Company will not pay, or permit any Subsidiary to pay, directly or indirectly, any
management, consulting, investment banking, advisory or other fees or payments, 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 any Affiliate of the Company, in respect of overhead expense allocations among members of the Affiliate corporate group) to any Affiliate of the Company, other than the Company or any Guarantor. The foregoing sentence shall not restrict the Company from (i) paying salaries, bonuses or other compensation to, or reimbursing travel or other business expenses of, officers, directors or employees in the ordinary course of business, or (ii) reimbursing travel or other business expenses of any officer or director of the Company, to the extent such reimbursements or such expenses are customarily paid or reimbursed for all officers and/or directors (as applicable) of the Company in the ordinary course of the Company’s business, consistent with past practices, or (iii) making Special Payments in compliance with the definition of such term.
11.16. Legal Name, State of Formation and Form of Entity . Without providing at least ten (10) days prior written notice to the Administrative Agent, not, and not permit any Guarantor to, change
its name, state of formation or form of organization.
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11.17. Sanctions . Not, and not permit any Guarantor to, permit any Loan or the proceeds of any Loan, directly or indirectly, (i) to be lent, contributed or
otherwise made available to fund any activity or business in any Designated Jurisdiction; (ii) to fund any activity or business in any Designated Jurisdiction; (ii) to fund any activity or business of any Person located, organized or residing in any Designated Jurisdiction or who is the subject or any Sanctions; or (iii) in any other manner that will result in any violation by any Person (including any Lender, any Joint Lead Arranger, Administrative Agent, any Issuing Lender or Swing Line Lender) of any Sanctions.
11.18. Capital Expenditures . Permit Capital Expenditures during any Fiscal Year to exceed $25,000,000.
SECTION 12.
EFFECTIVENESS; CONDITIONS OF LENDING, ETC.
12.1. Conditions of Initial Credit Extension . This Agreement shall become effective upon and the obligation of each Issuing Lender and each Lender to make its initial Credit
Extension hereunder is subject to satisfaction of the following conditions precedent:
12.1.1. Loan Documents .
Receipt by the Administrative Agent of executed counterparts of this Agreement and the other Loan Documents, each properly executed by a Senior Officer of the signing Loan Party and, in the case of this Agreement, by each Lender.
12.1.2. No Closing Date Material Adverse Effect .
No Closing Date Material Adverse Effect with respect to any of the Target Companies has occurred since September 30, 2011.
12.1.3. Authorization Documents .
Receipt by the Administrative Agent of the Company’s and each Guarantor’s (a) charter (or similar formation document), certified by the appropriate governmental authority; (b) good standing certificates in its state of incorporation (or formation); (c) bylaws (or similar governing document); (d) resolutions of its board of directors (or similar governing body) approving and authorizing such Person’s execution, delivery and performance of the Loan Documents to which it is party and the transactions contemplated thereby; and (e) signature and incumbency certificates of its officers executing any of the Loan Documents (it being understood that the Administrative Agent and each Lender
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may conclusively rely on each such certificate until formally advised by a like certificate of any changes therein), all certified by one of its Senior Officers as being in full force and effect without modification.
12.1.4. Consents, etc .
All material governmental and shareholder consents and approvals (including Hart-Scott-Rodino clearance) necessary in connection with (i) the execution, delivery and performance by the Company and each Guarantor of the documents referred to in this Section 12 and the transactions contemplated thereby and (ii) the Central Parking Acquisition and the transactions contemplated thereby shall have been obtained or waived; all such consents and approvals shall be in force and effect; and all applicable waiting periods shall have expired without any action being taken by any authority that could prevent or impose any materially adverse condition on the Central Parking Acquisition or the transactions contemplated hereby.
12.1.5. Opinions of Counsel .
Receipt by the Administrative Agent of favorable opinions of legal counsel to the Company and the Guarantors, addressed to the Administrative Agent and each Lender, dated as of the Closing Date, and in form and substance reasonably satisfactory to the Administrative Agent.
12.1.6. Insurance .
Receipt by the Administrative Agent of evidence of the existence of insurance required to be maintained pursuant to Section 10.3(b) , together with evidence that the Administrative Agent has been named as a lender’s loss payee (in the case of property insurance) and an additional insured (in the case of liability insurance) on all related insurance policies.
12.1.7. Copies of Documents .
Receipt by the Administrative Agent of copies of the documentation governing any Subordinated Debt certified by a Senior Officer of the Company as being true and complete in all material respects.
12.1.8. Payment of Fees .
Receipt by the Administrative Agent, the Joint Lead Arrangers and the Lenders of all accrued and unpaid fees, costs and expenses to the extent then due and payable on or before the Closing Date (including, without limitation, those certain fees payable pursuant to the Joint Fee Letter and those certain fees payable pursuant to the Administrative Agent Fee Letter), together with all Attorney Costs of one primary counsel for the Administrative Agent and the Joint Lead Arrangers to the extent invoiced prior to the Closing Date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate
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of Attorney Costs of such counsel incurred or to be incurred by the Administrative Agent through the funding proceedings ( provided that such estimate shall not thereafter preclude final settling of accounts between the Company and the Administrative Agent).
12.1.9. Total Debt to EBITDA Ratio; EBITDA .
Receipt by the Administrative Agent of satisfactory evidence that (a) the Total Debt to EBITDA Ratio of the Company and its Subsidiaries for the Computation Period ended June 30, 2012 is, after giving effect to the Central Parking Acquisition and the other Transactions on a Pro Forma Basis, not greater than 4.0:1.0 and (b) EBITDA of the Company and its Subsidiaries for the Computation Period ended June 30, 2012 (which shall be calculated giving effect to the Central Parking Acquisition and the other Transactions on a Pro Forma Basis) is not less than $82 million. The calculations required pursuant to this Section 12.1.9 shall be in form and substance satisfactory to the Administrative Agent and in the form set forth on Exhibit E .
12.1.10. Availability .
Receipt by the Administrative Agent of satisfactory evidence that immediately after giving effect to the Central Parking Acquisition, the Company has at least $50 million of unrestricted cash and/or availability under the Aggregate Revolving Commitments.
12.1.11. Search Results; Lien Terminations .
Receipt by the Administrative Agent of copies of Uniform Commercial Code search reports from the jurisdiction of formation of the Company and each Guarantor (or where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral) dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company and each Guarantor (under their present names and any previous names) as debtors, together with copies of such financing statements and, where feasible prior to the Closing Date, together with Uniform Commercial Code or other appropriate termination statements and documents effective to evidence the foregoing (other than Liens permitted by Section 11.2 ) and such other Uniform Commercial Code termination statements as the Administrative Agent may reasonably request.
12.1.12. Filings, Registrations and Recordings .
Receipt by the Administrative Agent of each document required by the Collateral Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the holders of the Obligations, a perfected Lien on the collateral described therein, prior to any other Liens (subject only to
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Liens permitted pursuant to Section 11.2 ), in proper form for filing, registration or recording. It is understood and agreed that, to the extent that any insurance certificate or perfection of security interest in any Collateral (the security interest in respect of which cannot be perfected by means of the filing of a UCC financing statement or delivery of stock certificates) is not able to be provided on the Closing Date after the Company’s use of commercially reasonable efforts to do so, the provision of such insurance certificates or perfection of such security interest in such Collateral will not constitute a condition precedent to the obligation of each Issuing Lender and each Lender to make its initial Credit Extension hereunder, but a security interest in such Collateral will be required to be perfected, and such insurance certificates will be required to be delivered, in each case, within ninety (90) days after the Closing Date.
12.1.13. Closing Certificates .
Receipt by the Administrative Agent of (a) a certificate executed by a Senior Officer of the Company on behalf of the Company, in such capacity but not individually, certifying that (i) the conditions set forth in Sections 12.1.2 , 12.1.4 , 12.1.9 , 12.1.10 , 12.1.14 and 12.2 , have been satisfied as of the Closing Date and (ii) the Company and its Subsidiaries are Solvent on a consolidated basis (after giving effect to the Central Parking Acquisition and the transactions contemplated hereby) and (b) a certificate executed by a Senior Officer of the Company or Central Parking on behalf of the Company or Central Parking, as applicable, in such capacity but not individually, certifying that the representations and warranties regarding Central Parking and its Subsidiaries in the Central Parking Acquisition Agreement that are material to the interests of the Lenders are true and correct in all material respects as of the Closing Date (except to the extent stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) but only to the extent that the Company or its Affiliates have the right to terminate its obligations under the Central Parking Acquisition Agreement or to not close thereunder as a result of the failure of such representations and warranties to be true and correct.
12.1.14. Central Parking Acquisition .
Receipt by the Administrative Agent of reasonably satisfactory evidence that the Central Parking Acquisition shall have been consummated in material compliance with (i) applicable Law and regulatory approvals and (ii) the terms and provisions of the Central Parking Acquisition Documents.
12.1.15. Central Parking Acquisition Documents .
Receipt by the Administrative Agent of a copy, certified by a Senior Officer of the Company as true and complete in all material respects, of the Central Parking Acquisition Documents, including all schedules and exhibits thereto, which Central Parking Acquisition Documents shall not have been
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altered, amended or otherwise changed or supplemented or any condition therein waived in any manner that is materially adverse to the Company or the Lenders (it being understood and agreed for purposes of this Section 12.1.15 that any increase to the purchase price, any amendment of the “Xerox” provisions and any amendment to or waiver of the Central Parking Acquisition Agreement representations shall be deemed to be materially adverse to the Lenders).
12.1.16. Repayment of Existing Credit Facility; Other Debt .
Receipt by the Administrative Agent of evidence that (a) concurrently with or prior to the Closing Date the Existing Credit Agreements are terminated and any and all obligations with respect thereto are paid in full and all Liens securing obligations under the Existing Credit Agreements are released and (b) upon giving effect to the transactions contemplated hereby, the Company and its Subsidiaries shall have no Debt other than Debt permitted by Section 11.1 .
12.1.17. Financial Statements .
Receipt by the Administrative Agent of (a) the Audited Financial Statements, (b) unaudited consolidated financial statements of Central Parking and its Subsidiaries for the Fiscal Quarter ended December 31, 2011, including balance sheets and statements of income or operations, shareholders’ equity and cash flows and (c) company prepared financials for (i) the Company and its Subsidiaries and (ii) Central Parking and its Subsidiaries, in each case for each calendar month ending during the period from February 29, 2012 through forty (40) days prior to the Closing Date and delivered within forty (40) days after the end of each such calendar month.
Without limiting the generality of the provisions of the last paragraph of Section 14.5 , for purposes of determining compliance with the conditions specified in this Section 12.1 , each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
12.2. Conditions . The obligation (a) of each Lender to make each Loan and participate in each Letter of Credit and (b) of any Issuing Lender to issue any
Letter of Credit, is subject in each case to the following further condition precedent that both before and after giving effect to any Borrowing or the issuance of any Letter of Credit, the following statements shall be true and correct:
(a) the representations and warranties of each Loan Party and each Guarantor set forth in this Agreement and the other
Loan Documents shall be true and correct in all material respects with the same effect as if then made (except to the extent stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided , however ,
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that the only representations and warranties required to be made by the Loan Parties and Guarantors on the Closing Date in connection with the initial Loans hereunder are the representations and warranties contained in Sections 9.1 , the first sentence and clauses (a), (b)(i) and (b)(ii) of the second sentence of 9.2 , 9.3 , 9.7 , 9.10 , 9.11 , 9.13 , 9.23 and 9.24 (collectively, the “ Specified Representations ”) and provided , further that to the extent that any of the Specified Representations made on the Closing Date are qualified by or subject to a “Material Adverse Effect”, such “Material Adverse Effect” shall be deemed to mean a Closing Date Material Adverse Effect.
(b) no Event of Default or Unmatured Event of Default shall have then occurred and be continuing or would result from
such borrowing or Letter of Credit issuance.
Each request for a Credit Extension submitted by the Company shall be deemed to be a representation and warranty that the conditions specified in this Section 12.2 have been satisfied on and as of the date of the applicable Credit Extension.
SECTION 13.
EVENTS OF DEFAULT AND THEIR EFFECT
13.1. Events of Default . Each of the following shall constitute an Event of Default under this Agreement:
13.1.1. Non-Payment of the Loans, etc .
Default in the payment when due of the principal of any Loan; or default, and continuance thereof for five Business Days, in the payment when due of any interest, fee, reimbursement obligation with respect to any Letter of Credit or other amount payable by the Company or any Guarantor hereunder or under any other Loan Document.
13.1.2. Non-Payment of Other Debt .
(a) Any default shall occur under the terms applicable to any Debt of any Loan Party or Guarantor (other than (x) non-recourse Debt of the Company or any of its Subsidiaries or any Guarantor as the Administrative Agent shall consent, such consent not to be unreasonably withheld and (y) Debt under Hedging Agreements) in an aggregate amount (for all such Debt so affected and including undrawn committed or available amounts and amounts owing to all creditors under any combined or syndicated credit arrangement) exceeding $15,000,000 and such default shall (i) consist of the failure to pay such Debt when due, whether by acceleration or otherwise, or (ii) accelerate the maturity of such Debt or permit the holder or holders thereof, or any trustee or agent for such holder or holders, to cause such Debt to become due and payable (or require any Loan Party or Guarantor to purchase or redeem such Debt or post cash collateral in respect
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thereof) prior to its expressed maturity; provided , that this clause (a)(ii) shall not apply to Debt secured by a Permitted Lien that becomes due as a result of the sale or transfer of the assets or property securing such Debt in a sale or transfer permitted by Section 11.6(b) ; or (b) there occurs under any Hedging Agreement an Early Termination Date (as defined in such Hedging Agreement) resulting from any event of default under such Hedging Agreement as to which the Company or any Subsidiary is the Defaulting Party (as defined in such Hedging Agreement) and the Hedging Termination Value owed by the Company or such Subsidiary as a result thereof is greater than $15,000,000.
13.1.3. Inability to Pay Debts .
(a) Any Loan Party or any of its Subsidiaries becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (b) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within thirty (30) days after its issue or levy.
13.1.4. Bankruptcy, Insolvency, etc .
Any Loan Party or Guarantor becomes insolvent or generally fails to pay, or admits in writing its inability or refusal to pay, debts as they become due; or any Loan Party or Guarantor applies for, consents to, or acquiesces in the appointment of a trustee, receiver or other custodian for such Loan Party or Guarantor or any property thereof, or makes a general assignment for the benefit of creditors; or, in the absence of such application, consent or acquiescence, a trustee, receiver or other custodian is appointed for any Loan Party or Guarantor or for a substantial part of the property of any thereof and is not discharged within sixty (60) days; or any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any Debtor Relief Law, or any dissolution or liquidation proceeding, is commenced in respect of any Loan Party or Guarantor, and if such case or proceeding is not commenced by such Loan Party or Guarantor, it is consented to or acquiesced in by such Loan Party or Guarantor, or remains for sixty (60) days undismissed; or any Loan Party or Guarantor takes any action to authorize, or in furtherance of, any of the foregoing.
13.1.5. Non-Compliance with Loan Documents .
(a) Failure by any Loan Party or Guarantor to comply with or to perform any covenant set forth in Section 10.1.5 , 10.3(b) , 10.5 or 10.9 or Section 11 or (b) failure by any Loan Party or Guarantor to comply with or to perform any other provision of this Agreement or any other Loan Document (and not constituting an Event of Default under any other provision of this Section 13 ) and continuance of such failure described in this clause (b) for thirty (30) days after the earlier of (i) the date on which a Senior Officer of the Company obtains actual knowledge of such failure and (ii) the date on which written notice thereof shall have been given to the Company by the Administrative Agent or the Required Lenders.
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13.1.6. Representations; Warranties .
Any representation or warranty made by any Loan Party or Guarantor herein or any other Loan Document is breached or is false or misleading in any material respect, or any schedule, certificate, financial statement, report, notice or other writing furnished by any Loan Party or Guarantor to the Administrative Agent or any Lender in connection herewith is false or misleading in any material respect on the date as of which the facts therein set forth are stated or certified.
13.1.7. Pension Plans .
(a) Any Person institutes steps to terminate a Pension Plan if as a result of such termination the Company is required to make a contribution to such Pension Plan, or incurs a liability or obligation to such Pension Plan, which contribution or liability could reasonably be expected to have a Material Adverse Effect; (b) a contribution failure occurs with respect to any Pension Plan and as a result of such contribution failure the Company is required to make a contribution to such Pension Plan or incurs a liability or obligation to such Pension Plan or such contribution failure is sufficient to give rise to a Lien under Section 303(k) of ERISA which contribution or liability or Lien could reasonably be expected to result in liability to the Company in excess of $15,000,000; or (c) there shall occur any withdrawal or partial withdrawal from a Multiemployer Pension Plan and the withdrawal liability (without unaccrued interest) to Multiemployer Pension Plans as a result of such withdrawal (including any outstanding withdrawal liability that the Company or any member of the Controlled Group have incurred on the date of such withdrawal) could reasonably be expected to have a Material Adverse Effect.
13.1.8. Judgments .
Final judgments which exceed an aggregate of $15,000,000 (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage) shall be rendered against any Loan Party or Guarantor and shall not have been paid, discharged or vacated or had execution thereof stayed pending appeal within thirty (30) days after entry or filing of such judgments.
13.1.9. Invalidity of Collateral Documents, etc .
Any Collateral Document shall cease to be in full force and effect (other than (x) pursuant to the terms thereof or (y) solely as a result of action taken or omitted, as applicable, by the Administrative Agent and/or the Required Lenders), or any of the Company or the Guarantors (or any Person by, through or on behalf of any of the Company or the Guarantors) shall contest in any manner the validity, binding nature or enforceability of any Collateral Document.
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13.1.10. Invalidity of Subordination Provisions, etc .
Any subordination provision in any document or instrument governing Subordinated Debt, or any subordination provision in any guaranty by any Subsidiary of any Subordinated Debt, shall cease to be in full force and effect (other than pursuant to the terms thereof or solely as a result of action taken by the Administrative Agent or the Required Lenders), or any Loan Party or Guarantor or any other Person shall contest in any manner the validity, binding nature or enforceability of any such provision.
13.1.11. Change of Control .
A Change of Control shall occur.
13.2. Effect of Event of Default . If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, the Required Lenders, take any or all
of the following actions: (a) declare the commitment of each Lender to make Loans and any obligation of the Issuing Lenders to make L/C Credit
Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Company;
(c) require that the Company Cash Collateralize the L/C Obligations (in an amount equal to the Minimum Collateral Amount with respect thereto); and
(d) exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents; provided , however , that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Company under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of the Issuing Lenders to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Company to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
13.3. Application of Funds . After the exercise of remedies provided for in Section 13.2 (or after the Loans have automatically become immediately due and payable
and the L/C Obligations have automatically
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been required to be Cash Collateralized as set forth in the proviso to Section 13.2 ), any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order:
First , to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Section 7.6 and Section 8 ) payable to the Administrative Agent in its capacity as such; Second , to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the Issuing Lenders (including fees, charges and disbursements of counsel to the respective Lenders and the Issuing Lenders) arising under the Loan Documents and amounts payable under Section 7.6 and Section 8 , ratably among them in proportion to the respective amounts described in this clause Second payable to them; Third , to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans and L/C Borrowings and fees, premiums and scheduled periodic payments, and any interest accrued thereon, due under any Secured Hedging Agreements to any Hedging Agreement Bank, ratably among the Lenders, the Hedging Agreement Banks and the Issuing Lenders in proportion to the respective amounts described in this clause Third held by them; Fourth , to (a) payment of that portion of the Obligations constituting accrued and unpaid principal of the Loans and L/C Borrowings, (b) payment of breakage, termination or other payments, and any interest accrued thereon, due under any Secured Hedging Agreements to any Hedging Agreement Banks, (c) payments of amounts due under any Secured Bank Product Agreement to any Bank Product Provider and (d) Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit, ratably among the Lenders, the Hedging Agreement Banks and the Bank Product Providers and the Issuing Lenders in proportion to the respective amounts described in this clause Fourth held by them; and Last , the balance, if any, after all of the Obligations have been paid in full, to the Company or as otherwise required by Law.
Subject to Sections 2.3.3 and 2.7 , amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above. Notwithstanding the foregoing, Obligations arising under Secured Bank Product Agreements and Secured Hedging Agreements shall be excluded from the application described above if the Administrative Agent has not received the written notice and other documentation required by the definitions of such terms, from the applicable Bank Product Provider or Hedging Agreement
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Bank, as the case may be. Each Bank Product Provider and Hedging Agreement Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Section 14 for itself and its Affiliates as if a “Lender” party hereto.
SECTION 14.
THE AGENT
14.1. Appointment and Authorization .
Each Lender and each Issuing Lender hereby irrevocably (subject to Section 14.10 ) appoints and designates Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to each of them by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Loan Document, the Administrative Agent shall not have any duty or responsibility except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to have any fiduciary relationship with any Lender or participant, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent, regardless of whether an Unmatured Event of Default or Event of Default has occurred and is continuing. Without limiting the generality of the foregoing sentence, the use of the term “agent” herein and in other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.
The Administrative Agent (a) shall not shall not have any duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law and (b) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any Guarantor or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
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The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lenders and the Issuing
Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and the Issuing Lenders for purposes of acquiring, holding and enforcing any and all Liens on collateral granted by any of the Company and the Guarantors to secure any of the Obligations, together with such powers and discretion as are incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 14.3 for purposes of holding or enforcing any Lien on the collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this Section 14 (including Section 14.8 , as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) and Section 15 as if set forth in full herein with respect thereto.
The provisions of this Section 14 are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Lenders, and
neither the Company nor any other Loan Party nor any Guarantor shall have rights as a third party beneficiary of any of such provisions.
14.2. Issuing Lenders . Each Issuing Lender shall act on behalf of the Lenders (according to their Pro Rata Shares) with respect to any Letters of Credit issued
by it and the documents associated therewith. The Issuing Lenders shall have all of the benefits and immunities (i) provided to the Administrative Agent in this Section 14 with respect to any acts taken or omissions suffered by any such Issuing Lender in connection with Letters of Credit issued by it or proposed to be issued by it and the applications and agreements for letters of credit pertaining to such Letters of Credit as fully as if the term “Administrative Agent”, as used in this Section 14 , included such Issuing Lender with respect to such acts or omissions, and (ii) as additionally provided in this Agreement with respect to such Issuing Lender.
14.3. Delegation of Duties . The Administrative Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and other consultants or experts concerning all matters pertaining to such duties. The Administrative Agent and any such agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that either one selects in the absence of gross negligence, bad faith or willful misconduct (as determined by a court of competent jurisdiction by final and nonappealable judgment). The exculpatory provisions of this Section 14 shall apply to any such agent and to the Related Parties of the Administrative Agent and any such agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
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14.4. Exculpation of Agents . None of the Administrative Agent nor any of its Related Parties shall (a) be liable for any action taken or omitted to be taken by any of
them under or in connection with this Agreement or any other Loan Document or the transactions contemplated hereby (except to the extent resulting from its own gross negligence, bad faith or willful misconduct in connection with its duties expressly set forth herein as determined by a final, nonappealable judgment by a court of competent jurisdiction), or (b) be responsible in any manner to any Lender or participant for any recital, statement, representation or warranty made by any Loan Party, any Guarantor or Affiliate of the Company, or any officer thereof, contained in this Agreement or in any other Loan Document, or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Agreement or any other Loan Document, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document (or the creation, perfection or priority of any Lien or security interest therein), or for any failure of the Company or any other party to any Loan Document to perform its obligations hereunder or thereunder. The Administrative Agent shall not be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of the Company or any of the Company’s Subsidiaries or Affiliates or the Guarantors.
14.5. Reliance by Agents . The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, electronic mail message, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to the Company), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders as it deems appropriate and, if it so requests, confirmation from the Lenders of their obligation to indemnify the Administrative Agent against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Loan Document in accordance with a request or consent of the Required Lenders and such request and any action taken or failure to act pursuant thereto shall be binding upon each Lender. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender or such Issuing Lender unless the Administrative Agent shall have received written notice to the contrary from such Lender or such Issuing Lender prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Loan Parties),
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independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Unmatured Event of Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Section 12 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
14.6. Notice of Default . The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Event of Default or Unmatured
Event of Default except with respect to defaults in the payment of principal, interest and fees required to be paid to the Administrative Agent for the account of the Lenders, unless the Administrative Agent shall have received written notice from a Lender or the Company referring to this Agreement, describing such Event of Default or Unmatured Event of Default and stating that such notice is a “notice of default”. The Administrative Agent will notify the Lenders of its receipt of any such notice. The Administrative Agent shall take such action with respect to such Event of Default or Unmatured Event of Default as may be requested by the Required Lenders in accordance with Section 13 ; provided that unless and until the Administrative Agent has received any such request, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default or Unmatured Event of Default as it shall deem advisable or in the best interest of the Lenders.
14.7. Credit Decision . Each Lender acknowledges that the Administrative Agent has not made any representation or warranty to it, and that no act by the
Administrative Agent hereafter taken, including any consent and acceptance of any assignment or review of the affairs of the Loan Parties, shall be deemed to constitute any representation or warranty by the Administrative Agent to any Lender as to any matter, including whether the Administrative Agent has disclosed material information in its possession. Each Lender and each Issuing Lender represents to the Administrative Agent, the other Lenders and their respective Related Parties that it has, independently and without reliance upon the Administrative Agent, the other Lenders or their respective Related Parties and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of the Loan Parties or the Guarantors, and made its own decision to enter into this Agreement and to extend credit to the Company hereunder. Each Lender also represents that it will, independently and without reliance upon the Administrative Agent, the other Lenders or their respective Related Parties and
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based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of the Company. Except for notices, reports and other documents expressly herein required to be furnished to the Lenders by the Administrative Agent, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial or other condition or creditworthiness of the Company which may come into the possession of the Administrative Agent.
14.8. Indemnification . Whether or not the transactions contemplated hereby are consummated, each Lender shall indemnify upon demand the Administrative
Agent (or any sub-agent thereof), the Issuing Lenders, the Swing Line Lender and their respective Related Parties (to the extent not reimbursed by or on behalf of the Company and without limiting the obligation of the Company to do so), according to its applicable Pro Rata Share, from and against any and all Indemnified Liabilities (as hereinafter defined) and any amounts required to be paid by the Company, any Guarantor or other Loan Party pursuant to Section 15.5 ; provided that no Lender shall be liable for any payment to any such Person of any portion of the Indemnified Liabilities to the extent determined by a final, nonappealable judgment by a court of competent jurisdiction to have resulted from the applicable Person’s own gross negligence, bad faith or willful misconduct. No action taken in accordance with the directions of the Required Lenders shall be deemed to constitute gross negligence, bad faith or willful misconduct for purposes of this Section. Without limitation of the foregoing, each Lender shall reimburse the Administrative Agent upon demand for its ratable share of any costs or out-of-pocket expenses (including Attorney Costs and Taxes) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that the Administrative Agent is not reimbursed for such expenses by or on behalf of the Company. The undertaking in this Section shall survive repayment of the Loans, cancellation of the Notes, expiration or termination of the Letters of Credit, any foreclosure under, or modification, release or discharge of, any or all of the Collateral Documents, termination of this Agreement and the resignation or replacement of the Administrative Agent.
14.9. Agent in Individual Capacity . Bank of America and its Affiliates, and any other Person serving as the Administrative Agent hereunder, may make loans to, issue
letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with the Loan Parties or the Guarantors and their respective Affiliates as though Bank of America or such Person were not the Administrative Agent hereunder and without notice to or consent of any Lender and without any duty to account therefor to the Lenders. Each Lender acknowledges that, pursuant to such activities, Bank of America or its Affiliates may receive information regarding the Company or its Affiliates
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(including information that may be subject to confidentiality obligations in favor of the Company or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them. With respect to their Loans (if any), Bank of America and its Affiliates, and any other Person serving as the Administrative Agent hereunder, shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though Bank of America or such Person were not the Administrative Agent, and the terms “Lender” and “Lenders” include Bank of America and its Affiliates and any such Person serving as the Administrative Agent hereunder, to the extent applicable, in their individual capacities.
14.10. Successor Agent .
14.10.1. The Administrative Agent may at any time give notice of its resignation to the Lenders, the Issuing Lenders and the Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor, which shall be a bank or financial institution with an office in the United States, or an Affiliate of any such bank or financial institution with an office in the United States. If no such successor shall have been appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “ Resignation Effective Date ”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the Issuing Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
14.10.2. If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition
thereof, the Required Lenders may, to the extent permitted by applicable Law by notice in writing to the Company and such Person remove such Person as the Administrative Agent and, in consultation with the Company, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders) (the “ Removal Effective Date ”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
14.10.3. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or
removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the Issuing Lenders under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and the Issuing Lenders directly, until such time, if any, as the Required Lenders
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appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than as provided in Section 7.6(e) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Section 14 and Section 15.16 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
Any resignation by or removal of Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation
or removal as Issuing Lender and Swing Line Lender. If Bank of America resigns as Issuing Lender, it shall retain all the rights, powers, privileges and duties of the Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Issuing Lender and all L/C Obligations with respect thereto, including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.3.3 . If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.4.3 . Upon the appointment by the Company of a successor Issuing Lender or Swing Line Lender hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Lender or Swing Line Lender, as applicable (b) the retiring Issuing Lender and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Lender shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
14.11. Collateral and Guaranty Matters . The Lenders and the Issuing Lenders irrevocably authorize the Administrative Agent, at its option and in its discretion, (a) to release
any Lien granted to or held by the Administrative Agent under any Collateral Document (i) upon termination of the Commitments and payment in full of all Loans, all other obligations of the Company hereunder and all other Obligations (other than (x) contingent indemnification obligations for which no claim has been asserted and (y) obligations and liabilities under Secured Bank Product Agreements and Secured Hedging
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Agreements as to which arrangements reasonably satisfactory to the applicable provider thereof shall have been made) and the expiration or termination of all Letters of Credit; (ii) constituting property sold or to be sold or disposed of as part of or in connection with any disposition permitted hereunder; or (iii) subject to Section 15.1 , if approved, authorized or ratified in writing by the Required Lenders; (b) to subordinate its interest in any collateral to any holder of a Lien on such collateral which is permitted by Section 11.2(i ) (it being understood that the Administrative Agent may conclusively rely on a certificate from the Company in determining whether the Debt secured by any such Lien is permitted by Section 11.1(e) or (m)) and (c) to release any Guarantor from its obligations under the Guaranty and Collateral Agreement if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder. Upon request by the Administrative Agent at any time, the Lenders will confirm in writing the Administrative Agent’s authority to release, or subordinate its interest in, particular types or items of collateral, or to release any Guarantor from its obligations under the Guaranty and Collateral Agreement, pursuant to this Section 14.11 . In connection with any such termination or release or subordination, as applicable, the Administrative Agent shall promptly execute and deliver to the applicable Loan Party or Subsidiary such documents as such Loan Party or such Subsidiary may reasonably request to evidence the release of such item of collateral from the assignment and security interest granted under the Loan Documents, to evidence such subordination of its interest in or to release such Guarantor from its obligations under the Loan Documents, in each case in accordance with the terms of the Loan Documents and this Section 14.11 . Each Lender hereby authorizes the Administrative Agent to give blockage notices in connection with any Subordinated Debt at the direction of Required Lenders and agrees that it will not act unilaterally to deliver such notices.
14.12. Administrative Agent May File Proofs of Claim . In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to any Loan Party or Guarantor, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Company) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, and all
other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the Issuing Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the Issuing Lenders and the Administrative Agent under Sections 5 , 15.5 and 15.16 ) allowed in such judicial proceedings; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each Issuing Lender to
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make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the Issuing Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 5 , 15.5 and 15.16 .
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any Issuing Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
14.13. Other Agents; Arrangers and Managers . None of the Lenders or other Persons identified on the facing page or signature pages of this Agreement as a “syndication agent,” “co-
documentation agent,” “co-agent,” “book manager,” “lead manager,” “arranger,” “lead arranger” or “co-arranger”, if any, shall have any right, power, obligation, liability, responsibility or duty under this Agreement other than, in the case of such Lenders, those applicable to all Lenders as such. Without limiting the foregoing, none of the Lenders or other Persons so identified shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons so identified in deciding to enter into this Agreement or in taking or not taking action hereunder.
14.14. Secured Bank Product Agreements and Secured Hedging Agreements . No Bank Product Provider or Hedging Agreement Bank that obtains the benefits of the Guaranty and Collateral Agreement or any
collateral by virtue of the provisions hereof or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the collateral (including the release or impairment of any collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Section 14 to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Bank Product Agreements and Secured Hedging Agreements unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Bank Product Provider or Hedging Agreement Bank, as the case may be. The Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Bank Product Agreements and Secured Hedging Agreements in the case of the Maturity Date.
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SECTION 15.
GENERAL
15.1. Waiver; Amendments . No delay on the part of the Administrative Agent or any Lender in the exercise of any right, power or remedy shall operate as a waiver
thereof, nor shall any single or partial exercise by any of them of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. No amendment, modification or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Company or any Guarantor therefrom, shall be effective unless in writing signed by the Required Lenders and the Company or the applicable Guarantor, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however , that no amendment, modification, waiver or consent shall (a) extend or increase the Commitment of any Lender without the written consent of such Lender, (b) extend the date scheduled for payment of any principal (excluding mandatory prepayments) of or interest on the Loans or any fees payable hereunder without the written consent of each Lender directly affected thereby, (c) reduce the principal amount of any Loan, the rate of interest thereon or any fees payable hereunder, without the consent of each Lender directly affected thereby; provided , however , that only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Company to pay interest or Letter of Credit Fees at the Default Rate (it being understood that a waiver of any condition precedent or the waiver of any Unmatured Event of Default, Event of Default or mandatory prepayment shall not constitute an extension or increase of any Lender’s commitment hereunder); or (d) release all or substantially all of the Guarantors or all or substantially of the collateral granted under the Collateral Documents, change the definition of “Required Lenders” or any provision of this Section 15.1 , without, in each case, the written consent of all Lenders. No provision of Section 14 or other provision of this Agreement affecting the Administrative Agent in its capacity as such shall be amended, modified or waived without the consent of the Administrative Agent. No provision of this Agreement relating to the rights or duties of any Issuing Lender in its capacity as such shall be amended, modified or waived without the consent of such Issuing Lender. No provision of this Agreement relating to the rights or duties of the Swing Line Lender in its capacity as such shall be amended, modified or waived without the consent of the Swing Line Lender.
Notwithstanding anything to the contrary herein, (i) the Administrative Agent Fee Letter and the Joint Fee Letter each may be amended,
or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (ii) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender, (iii) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent
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provisions set forth herein and (iv) the Required Lenders shall determine whether or not to allow a Loan Party or a Guarantor to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders.
Notwithstanding the foregoing, this Agreement may be amended (or amended and restated) with the written consent of the Required
Lenders, the Administrative Agent and the Company (i) to add one or more additional credit facilities to this Agreement, to permit the extensions of credit from time to time outstanding hereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Loans and the accrued interest and fees in respect thereof and to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders and (ii) to change, modify or alter Section 7.5 or Section 13.3 or any other provision hereof relating to pro rata sharing of payments among the Lenders to the extent necessary to effectuate any of the amendments (or amendments and restatements) enumerated in clause (i) of this paragraph and/or the paragraph below.
Notwithstanding anything to the contrary contained herein, in order to implement any additional Revolving Commitments in
accordance with Section 6.1.1 , this Agreement may be amended for such purpose (but solely to the extent necessary to implement such additional Revolving Commitments in accordance with Section 6.1.1 ) by the Company, the Administrative Agent and the relevant Lenders providing such additional Commitments.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies
hereunder and under the other Loan Documents against the Company and the Guarantors or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 14.1 for the benefit of all the Lenders and the Issuing Lenders; provided , however , that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the Issuing Lenders or the Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in their respective capacities as Issuing Lender or Swing Line Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 7.4 (subject to the terms of Section 7.5 ), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to the Company or any Guarantor under any Debtor Relief Law; and provided , further , that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 14.1 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 7.5 , any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
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15.2. Confirmations . The Company and each holder of a Note agree from time to time, upon written request received by it from the other, to confirm to the
other in writing (with a copy of each such confirmation to the Administrative Agent) the aggregate unpaid principal amount of the Loans then outstanding under such Note.
15.3. Notices . All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopier as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i) if to the Company or any Guarantor, the Administrative Agent, the Issuing Lenders or the Swing Line Lender, to the address,
telecopier number, electronic mail address or telephone number specified for such Person on Annex B ; and (ii) if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its
Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Company).
Notices sent by facsimile or electronic mail transmission shall be deemed to have been given when sent; notices sent by mail shall be
deemed to have been given three Business Days after the date when sent by registered or certified mail, postage prepaid; and notices sent by hand delivery or overnight courier service shall be deemed to have been given when received. The Administrative Agent shall be entitled to rely on telephonic instructions from any person that the Administrative Agent in good faith believes is an authorized officer or employee of the Company, and the Company shall hold the Administrative Agent and each other Lender harmless from any loss, cost or expense resulting from any such reliance.
The Administrative Agent, the Issuing Lenders and the Lenders shall be entitled to rely and act upon any notices (including telephonic
or electronic Loan Notices and L/C Applications) purportedly given by or on behalf of the Company or any Guarantor even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Company and the Guarantors shall indemnify the Administrative Agent, the Issuing Lenders, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Company or a Guarantor except to the extent arising from such Person’s own gross negligence, bad faith or willful misconduct in connection with its duties expressly set forth herein as determined by a final, nonappealable judgment by a court of competent jurisdiction. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording. The indemnity provisions of this Section shall survive the resignation of the Administrative Agent, the Issuing Lenders and the Swing Line
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Lender, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations.
15.4. Computations . (a) Except as otherwise specifically prescribed herein, all accounting terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements.
(b) The Company will provide a written summary of material changes in GAAP and in the consistent application thereof with
each annual and quarterly Compliance Certificate. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Company or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Company shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that , until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Company shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
(c) The parties hereto acknowledge and agree that all calculations of the financial covenants in Section 11.13 (including for
purposes of determining the Applicable Margin) shall be made on a Pro Forma Basis. (d) Any financial ratios required to be maintained by the Company pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
15.5. Costs and Expenses . The Company agrees to pay within ten (10) Business Days after demand therefor, (i) all reasonable out-of-pocket costs and expenses of
the Administrative Agent and the Issuing Lenders and their Affiliates (including Attorney Costs) in connection with the preparation, negotiation, execution, syndication, delivery and administration (including perfection and protection of any collateral and the costs of Intralinks, Syndtrak (or other similar service), if applicable) of this Agreement, the other Loan Documents and all other documents provided for herein or delivered or to be delivered hereunder or in connection herewith (including any amendment, supplement or waiver to any Loan Document), whether or not the transactions contemplated hereby or thereby shall be consummated, (ii) all reasonable out-of-pocket expenses incurred by the Issuing Lenders in connection with the issuance, amendment, renewal or
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extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket costs and expenses (including Attorney Costs) incurred by the Administrative Agent, the Issuing Lenders and each Lender in connection with the collection of the Obligations or the enforcement of this Agreement, the other Loan Documents or any such other documents or the protection of their respective rights thereunder or during any workout, restructuring or negotiations in respect thereof. In addition, the Company agrees to pay, and to save the Administrative Agent and the Lenders harmless from all liability for, any fees of the Company’s auditors in connection with any reasonable exercise by the Administrative Agent and the Lenders of their rights pursuant to Section 10.2 . All Obligations provided for in this Section 15.5 shall survive repayment of the Loans, cancellation of the Notes, expiration or termination of the Letters of Credit and termination of this Agreement.
15.6. Assignments; Participations .
15.6.1. Successors and Assigns Generally . The provisions of this Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and their respective successors and assigns permitted hereby, except that the Company may not assign or otherwise transfer any of its rights or obligations hereunder or thereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 15.6.2 , (ii) by way of participation in accordance with the provisions of Section 15.6.4 or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 15.6.5 (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 15.6.4 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Lenders and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
15.6.2. Assignments by Lenders . Any Lender may at any time assign to one or more assignees all or a portion of its rights
and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitment and the Loans (including for purposes of this Section 15.6.2 , participations in L/C Obligations and Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(A) Minimum Amounts .
15.6.2.A.1. in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
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15.6.2.A.2. in any case not described in Section 15.6.2.A.1 , the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 in the case of an assignment of Revolving Loans and $1,000,000 in the case of an assignment of Term Loans unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (each such consent not to be unreasonably withheld or delayed);
(B) Proportionate Amounts . Each partial assignment shall be made as an assignment of a proportionate part
of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (B) shall not apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans;
(C) Required Consents . No consent shall be required for any assignment except to the extent required by
Section 15.6.2.A.2 and, in addition:
15.6.2.C.1. the consent of the Company (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided , that , the Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within three (3) Business Days after having received notice thereof;
15.6.2.C.2. the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of (i) any Term Loan Commitment, or Revolving Commitment if such assignment is to a Person that is not a Lender with a Commitment in respect of the Commitment subject to such assignment, an Affiliate of such Lender or an Approved Fund with respect to such Lender or (ii) any Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; provided that, in consenting to any such assignment, the Administrative Agent has no duty to, and shall not be liable to the Company, any assignor or assignee
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Lenders or any of their respective Affiliates for any failure to, inquire or otherwise verify whether or not such assignment is being made to a Competitor, and the Administrative Agent shall have no duty or obligation to enforce any prohibition on such assignment.
15.6.2.C.3. the consent of the Issuing Lenders and the Swing Line Lender shall be
required for any assignment in respect of the Revolving Commitment.
(D) Assignment and Assumption . The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(E) No Assignment to Certain Persons . No such assignment shall be made (A) to the Company or any of
the Company’s Affiliates or Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), (C) to a Competitor or (D) to a natural Person. Any assignment made to any Competitor in violation of this Section shall be void ab initio, unless such assignment has been approved by the Company. If the Company approves an assignment to a Competitor, then such assignee will not be considered a “Competitor” solely for purposes of that assignment. Upon written notice by the Company to the Administrative Agent of an assignment made to a Competitor, the Administrative Agent shall delete such Competitor from the Register.
(F) Certain Additional Payments . In connection with any assignment of rights and obligations of any
Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Company and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, any Issuing Lender or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Pro Rata Share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting
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Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 15.6.3 , from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 7.6 , 8.1 , 8.4 , 15.5 and 15.16 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, the Company (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 15.6.4 .
15.6.3. Register . The Administrative Agent, acting solely for this purpose as an agent of the Company (and such agency being solely for tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”). The entries in the Register shall be conclusive absent manifest error, and the Company, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Company and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
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15.6.4. Participations . Any Lender may at any time, without the consent of, or notice to, the Company or the
Administrative Agent, sell participations to any Person (other than a natural Person, a Competitor, a Defaulting Lender or the Company or any of the Company’s Affiliates or Subsidiaries) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Company, the Administrative Agent, the other Lenders and the Issuing Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any participation sold to a Competitor in violation of this Section shall be void ab initio , unless such participation has been approved by the Company. If the Company approves a participation sold to a Competitor, then such participant will not be considered a Competitor solely for purposes of that participation. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 14.8 without regard to the existence of any participation.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in clauses (a) through (d) of the proviso to the third sentence of Section 15.1 that affects such Participant; provided , further , that , any such agreement or instrument shall require the applicable Participant to represent and warrant for the benefit of the Company and such Lender that such Participant is not a Competitor. The Company agrees that each Participant shall be entitled to the benefits of Sections 8.1 , 8.4 and 7.6 (subject to the requirements and limitations therein, including the requirements under Section 7.6(d) it being understood that the documentation required under Section 7.6(d) shall be delivered to the Lender who sells the participation) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 15.6.2 ; provided that such Participant (A) agrees to be subject to the provisions of Section 8.7 as if it were an assignee under Section 15.6.2 and (B) shall not be entitled to receive any greater payment under Sections 7.6 or 8.1 , with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Company’s request and expense, to use reasonable efforts to cooperate with the Company to effectuate the provisions of Section 8.7 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 7.4 as though it were a Lender, provided such Participant agrees to be subject to Section 7.5 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Company, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “ Participant
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Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
15.6.5. Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights
under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
15.6.6. Resignation as Issuing Lender or Swing Line Lender after Assignment . Notwithstanding anything to the contrary
contained herein, if at any time Bank of America assigns all of its Commitment and Loans pursuant to Section 15.6.2 , Bank of America may, (i) upon thirty (30) days’ notice to the Company and the Lenders, resign as Issuing Lender and/or (ii) upon thirty (30) days’ notice to the Company, resign as Swing Line Lender. In the event of any such resignation as Issuing Lender or Swing Line Lender, the Company shall be entitled to appoint from among the Lenders a successor Issuing Lender or Swing Line Lender hereunder; provided , however , that no failure by the Company to appoint any such successor shall affect the resignation of Bank of America as Issuing Lender or Swing Line Lender, as the case may be. If Bank of America resigns as Issuing Lender, it shall retain all the rights, powers, privileges and duties of an Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Issuing Lender and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.3.3 ). If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.4.3 . Upon the appointment of a successor Issuing Lender and/or Swing Line Lender, (1) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Issuing Lender or Swing Line Lender, as the case may be, and (2) the successor Issuing Lender shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession and issued by Bank of America or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
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15.7. [Reserved] . 15.8. GOVERNING LAW . THIS AGREEMENT AND EACH NOTE SHALL BE A CONTRACT MA DE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF ILLINOIS APPLICABLE T O CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFL ICT OF LAWS PRINCIPLES; PROVIDED , HOWEVER , THAT THE DETERMINATION OF WHETHER A CLOSING DATE MA TERIAL ADVERSE EFFECT HAS OCCURRED SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, W ITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
15.9. Confidentiality . Each of the Administrative Agent, the Lenders and the Issuing Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to a Loan Party and its obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in connection with rating the Company or its Subsidiaries or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of the Company or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender, any Issuing Lender or any of their respective Affiliates on a nonconfidential basis from a source other than the Company.
For purposes of this Section, “ Information ” means all information received from a Loan Party or any Subsidiary relating to the Loan
Parties or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or any Issuing Lender on a nonconfidential basis prior to disclosure by such Loan Party or any Subsidiary, provided that, in the case of information received from a Loan Party or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in
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this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
15.10. Severability . Whenever possible each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement shall be prohibited by or invalid under applicable 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 Agreement. The parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. All obligations of the Company and rights of the Administrative Agent and the Lenders expressed herein or in any other Loan Document shall be in addition to and not in limitation of those provided by applicable law. Without limiting the foregoing provisions of this Section 15.10 , if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, an Issuing Lender or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.
15.11. Nature of Remedies . All Obligations of the Company and rights of the Administrative Agent and the Lenders expressed herein or in any other Loan
Document shall be in addition to and not in limitation of those provided by applicable law. No failure to exercise and no delay in exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or privilege hereunder, shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15.12. Entire Agreement . This Agreement, together with the other Loan Documents, embodies the entire agreement and understanding among the parties hereto
and supersedes all prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating to the subject matter hereof and thereof (except as relates to the fees described in Section 5.3 ) and any prior arrangements made with respect to the payment by the Company of (or any indemnification for) any fees, costs or expenses payable to or incurred (or to be incurred) by or on behalf of the Administrative Agent or the Lenders.
15.13. Counterparts . This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts and each
such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Agreement.
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Receipt of an executed signature page to this Agreement by facsimile or other electronic transmission shall constitute effective delivery thereof. Except as provided in Section 12.1 , this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Electronic records of executed Loan Documents maintained by the Lenders shall deemed to be originals.
The words “execution,” “signed,” “signature” and words of like import in any Assignment and Assumption or in any amendment or
other modification hereof (including waivers and consents) shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
15.14. Successors and Assigns . This Agreement shall be binding upon the Company, the Lenders, the Administrative Agent and their respective successors and
permitted assigns, and shall inure to the benefit of the Company, the Lenders, the Administrative Agent and the successors and permitted assigns of the Lenders and the Administrative Agent. No other Person shall be a direct or indirect legal beneficiary of, or have any direct or indirect cause of action or claim in connection with, this Agreement or any of the other Loan Documents. The Company may not assign or transfer any of its rights or Obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender.
15.15. Captions . Section captions used in this Agreement are for convenience only and shall not affect the construction of this Agreement. 15.16. Indemnification . The Company shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and each Issuing Lender, and each
Related Party of any of the foregoing Persons (each such Person being called a “ Lender Party ”) against, and hold each Lender Party harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Lender Party), and shall indemnify and hold harmless each Lender Party from all fees and time charges and disbursements for attorneys who may be employees of any Lender Party, incurred by any Lender Party or asserted against any Lender Party by any Person (including the Company or any Guarantor but excluding the Lender Party and its Related Parties) arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its
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Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by any Issuing Lender to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Substances on or from any property owned or operated by the Company or any of its Subsidiaries, or any liability under Environmental Laws related in any way to the Company or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Company or any Guarantor, and regardless of whether any Lender Party is a party thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence of the Lender Party; provided that such indemnity shall not, as to any Lender Party, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Lender Party, if the Company or such Guarantor has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. If and to the extent that the foregoing undertaking may be unenforceable for any reason, the Company hereby agrees to make the maximum contribution to the payment and satisfaction hereunder which is permissible under applicable Law. All obligations provided for in this Section shall survive repayment of the Loans, cancellation of the Notes, expiration or termination of the Letters of Credit, any foreclosure under, or any modification, release or discharge of any or all of the Collateral Documents and termination of this Agreement.
To the extent that the Company for any reason fails to indefeasibly pay any amount required under Section 15.5 or this Section 15.16 ,
or any Guarantor for any reason fails to indefeasibly pay any amount required under Section 8.3 or Section 8.4 of the Guaranty and Collateral Agreement, in each case, to be paid by it to the Administrative Agent (or any sub-agent thereof), any Issuing Lender, the Swing Line Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the Issuing Lenders, the Swing Line Lender or such Related Party, as the case may be, such Lender’s Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment to be made severally among them based on such Lenders’ Pro Rata Shares (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought), provided, further that, the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), such Issuing Lender or the Swing Line Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), such Issuing Lender or the Swing Line Lender in connection with such capacity. The obligations of the Lenders under this paragraph are subject to the provisions of Section 7.1.5 .
To the fullest extent permitted by applicable law, none of the parties hereto shall assert, and each party hereto hereby waives, and
acknowledges that no other Person shall have, any claim against any party hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or
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as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Lender Party shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
15.17. Nonliability of Lenders . The relationship between the Company on the one hand and the Lenders and the Administrative Agent and the Issuing Lenders on the
other hand shall be solely that of borrower and lender. Neither the Administrative Agent, the Issuing Lenders nor any Lender has any fiduciary relationship with or duty to any Loan Party or Guarantor arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Loan Parties and the Guarantors, on the one hand, and the Administrative Agent, the Issuing Lenders and the Lenders, on the other hand, in connection herewith or therewith is solely that of debtor and creditor. Neither the Administrative Agent, the Issuing Lenders nor any Lender undertakes any responsibility to any Loan Party or Guarantor to review or inform any Loan Party or Guarantor of any matter in connection with any phase of any Loan Party’s or Guarantor’s business or operations. The Company agrees, on behalf of itself and each other Loan Party and Guarantor, that neither the Administrative Agent, any Issuing Lender nor any Lender shall have liability to any Loan Party or Guarantor (whether sounding in tort, contract or otherwise) for losses suffered by any Loan Party or Guarantor in connection with, arising out of or in any way related to the transactions contemplated and the relationship established by the Loan Documents, or any act, omission or event occurring in connection therewith, unless it is determined in a final non-appealable judgment by a court of competent jurisdiction that such losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. NO LENDER PARTY OR LOAN PARTY OR GUARANTOR SHALL BE LIABLE FO R ANY DAMAGES ARISING FROM THE USE BY OTHERS OF ANY INFORMATION OR OTHER MATERIALS OBTAIN ED THROUGH INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS AGREEMENT, NOR SHALL ANY LENDER PARTY OR LOAN PARTY OR GUARANTOR HAVE ANY LIABILITY WITH RESPECT THERETO, EXCEPT AS A RESULT OF ITS OWN GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISC ONDUCT. The Company acknowledges that it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party. No joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Lenders or among the Loan Parties, Guarantors and the Lenders.
15.18. Forum Selection and Consent to Jurisdiction . ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UND ER, OR IN CONNECTION WITH THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MA INTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR
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THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE ADMINISTRATIVE AGENT FROM B RINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION. EACH OF THE PARTIES HER ETO HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF I LLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE PURPO SE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH OF THE PARTIES HERETO FURTHER IRREVOCABLY CONS ENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH OF THE PARTIES HERETO HEREBY EXPRESSLY AND IRR EVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFER RED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORU M.
15.19. Waiver of Jury Trial . EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT, ANY ISSUING LENDER AND EACH LENDER HEREBY
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION O R PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE, ANY OTHER LOAN DOCU MENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY LENDING R ELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION O R PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
15.20. No Advisory or Fiduciary Responsibility . In connection with all aspects of each transaction contemplated hereby, the Company acknowledges and agrees, and acknowledges its
Affiliates’ understanding, that: (i) the credit facility provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction between the Company and its Affiliates, on the one hand, and the Administrative Agent and the Joint Lead Arrangers, on the other hand, and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof); (ii) in connection with the process leading to such transaction, the Administrative Agent and each Joint Lead Arranger each is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the Company or any of Affiliates, stockholders, creditors or employees or any other Person; (iii) neither the Administrative Agent nor any Joint Lead Arranger has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Company with respect to any of the transactions contemplated hereby or the process
138
leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether the Administrative Agent or any Joint Lead Arranger has advised or is currently advising the Company or any of its Affiliates on other matters) and neither the Administrative Agent nor any Joint Lead Arranger has any obligation to the Company or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; (iv) the Administrative Agent and the Joint Lead Arrangers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and its Affiliates, and neither the Administrative Agent nor any Joint Lead Arranger has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Administrative Agent and the Joint Lead Arrangers have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that it may have against the Administrative Agent or any Joint Lead Arranger with respect to any breach or alleged breach of agency or fiduciary duty.
15.21. USA PATRIOT Act Notice . Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender)
hereby notifies the Company that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “ Act ”), it is required to obtain, verify and record information that identifies the Company and the Guarantors, which information includes the name and address of the Company and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Company and the Guarantors in accordance with the Act. The Company shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act.
15.22. Interest Rate Limitation . Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan
Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “ Maximum Rate ”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Company. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
139
15.23. Survival of Representations and Warranties . All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Unmatured Event of Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
15.24. Payments Set Aside . To the extent that any payment by or on behalf of any Loan Party or Guarantor is made to the Administrative Agent, any Issuing Lender
or any Lender, or the Administrative Agent, any Issuing Lender or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, such Issuing Lender or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and each Issuing Lender severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the Issuing Lenders under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
[signature pages follow]
140
The parties hereto have caused this Agreement to be duly executed and delivered by their duly authorized officers as of the date first set
forth above.
COMPANY: STANDARD PARKING CORPORATION ,
as the Company
By: /s/ G Marc Baumann
Name: G Marc Baumann
Title: Chief Financial Officer,
Treasurer & President of Urban Operations
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Charlene Wright-Jones
Name: Charlene Wright-Jones
Title: Vice President
LENDERS: BANK OF AMERICA, N.A.,
as an Issuing Lender, the Swing Line Lender and a Lender
By: /s/ Jason E. Guerra
Name: Jason E. Guerra
Title: Vice President
WELLS FARGO BANK, N.A.,
as Co-Syndication Agent, an Issuing Lender and a Lender
By: /s/ Peg Laughlin
Name: Peg Laughlin
Title: SVP
JPMORGAN CHASE BANK, N.A.,
as Co-Syndication Agent, an Issuing Lender and a Lender
By: /s/ Michael A. Barent
Name: Michael A. Barent
Title: Authorized Officer
U.S. BANK NATIONAL ASSOCIATION,
as Lender
By: /s/ Mark Utlaut
Name: Mark Utlaut
Title: Vice President
FIRST HAWAIIAN BANK,
as Lender
By: /s/ Dawn Hofmann
Name: Dawn Hofmann
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION,
as Lender
By: /s/ Jeff Bottcher
Name: Jeff Bottcher
Title: Duly Authorized Signatory
GE CAPITAL BANK,
as Lender
By: /s/ Heather-Leigh Glade
Name: Heather-Leigh Glade
Title: Duly Authorized Signatory
BMO HARRIS BANK N.A.,
as Lender
By: /s/ Bruce Linger
Name: Bruce Linger
Title: Managing Director
KEYBANK NATIONAL ASSOCIATION,
as Lender
By: /s/ Thomas A. Crandell
Name: Thomas A. Crandell
Title: Senior Vice President
THE PRIVATE BANK AND TRUST COMPANY,
as Lender
By: /s/ Chris O’Hara
Name: Chris O’Hara
Title: Managing Director
PNC BANK, NATIONAL ASSOCIATION,
as Lender
By: /s/ Paul Flaherty
Name: Paul Flaherty
Title: Assistant Vice President
ASSOCIATED BANK, NATIONAL ASSOCIATION,
as Lender
By: /s/ Craig Thessin
Name: Craig Thessin
Title: Vice President
THE NORTHERN TRUST COMPANY,
as Lender
By: /s/ Phillip McCaulay
Name: Phillip McCaulay
Title: Vice President
ANNEX A
LENDERS AND PRO RATA SHARES
Lender Revolving Commitment
Pro Rata Share Term Loan Commitment
Pro Rata Share
Bank of America, N.A.
$ 33,777,777.78 16.888888889 % $ 42,222,222.22
16.888888889 % Wells Fargo Bank, N.A.
$ 33,777,777.78 16.888888889 % $ 42,222,222.22
16.888888889 % JPMorgan Chase Bank, N.A.
$ 33,777,777.78 16.888888889 % $ 42,222,222.22
16.888888889 % U.S. Bank National Association
$ 22,222,222.23 11.111111112 % $ 27,777,777.77
11.111111112 % First Hawaiian Bank
$ 15,555,555.56 7.777777778 % $ 19,444,444.44
7.77777777 % General Electric Capital Corporation
$ 4,222,222.22 2.111111111 % $ 7,777,777.78
2.111111111 % GE Capital Bank
$ 10,444,444.45 5.222222222 % $ 10,555,555.55
5.222222222 % BMO Harris Bank N.A.
$ 8,888,888.89 4.444444444 % $ 11,111,111.11
4.444444444 % KeyBank National Association
$ 8,888,888.89 4.444444444 % $ 11,111,111.11
4.444444444 % The PrivateBank and Trust Company
$ 8,888,888.89 4.444444444 % $ 11,111,111.11
4.444444444 % PNC Bank, National Association
$ 8,888,888.89 4.444444444 % $ 11,111,111.11
4.444444444 % Associated Bank, National Association
$ 5,333,333.33 2.666666667 % $ 6,666,666.67
2.666666667 % The Northern Trust Company
$ 5,333,333.33 2.666666667 % $ 6,666,666.67
2.666666667 % TOTAL
$ 200,000,000.00 100.000000000 % $ 250,000,000.00
100.000000000 %
ANNEX B
ADDRESSES FOR NOTICES
Addresses for All Loan Parties If to Borrower : Standard Parking Corporation 900 North Michigan Avenue Chicago, Illinois 60611 Attention: G Marc Baumann Telephone: 312-274-2199 Telecopier: 312-640-6165 Electronic Mail: [email protected] Address for Administrative Agent Administrative Agent : For payments and requests for Credit Extensions : Bank of America, N.A. 901 Main Street Mail Code: TX1-492-14-14 Dallas, TX 75202-3714 Attention: Eric Evans Telephone: 214.209.1634 Fax: 214.290.8313 Electronic Mail: [email protected] Account No.: ** Ref: Standard Parking ABA# ** For other Notices as Administrative Agent: Bank of America, N.A. Agency Management 135 S. LaSalle Street Mail Code: IL4-135-05-41 Chicago, IL 60604 Attention: Charlene Wright-Jones Telephone: 312.828.3935 Fax: 877.206.8427 Electronic Mail: [email protected]
Issuing Lenders : Bank of America Trade Finance Services 1 Fleet Way Mail Code: PA6-580-02-30 Scranton, PA 18507 Attention: Alfonso Malave Telephone: 570.496.9622 Fax: 800.755.8743 Email: [email protected] Wells Fargo Bank, N.A. Peg Laughlin Senior Vice President 230 W. Monroe St. Suite 2900 Chicago, IL 60606 Phone: (312) 762 9031 Fax: (312) 795-9388 [email protected] JPMorgan Chase Bank, N.A. Cristie Pisowicz 10 S Dearborn, 7 Floor Chicago, IL 60603 Telephone: 312-732-9519 Fax: 312-256-2608 Email: [email protected] Swing Line Lender : Bank of America, N.A. 901 Main Street Mail Code: TX1-492-14-14 Dallas, TX 75202-3714 Attention: Eric Evans Telephone: 214.209.1634 Fax: 214.290.8313 Electronic Mail: [email protected] Account No.: ** Ref: Standard Parking ABA# **
th
SCHEDULES TO CREDIT AGREEMENT
Schedule 1.1(a) - Competitors
Schedule 1.1(b) - Existing Letters of Credit
Schedule 1.1(c) - EBITDA
Schedule 9.8 - Equity Ownership, Subsidiaries
Schedule 9.20 - Labor Matters
Schedule 11.1 - Debt Existing on the Closing Date
Schedule 11.2 - Liens Existing on the Closing Date
Schedule 11.10 - Investments Existing on the Closing Date
Schedule 11.15 - Management Fees
SCHEDULE 1.1(a)
Competitors
LAZ PARKING
AMERIPARK
EZ PARKING AMPCO
INTERNATIONAL PARKING
FOCUS PARKING SYSTEMS DIAMOND PARKING
MANAGEMENT
FTW CLUB COLONIAL PARKING
VPNE PARKING
GP STATE PARKING REPUBLIC PARKING
ATLANTIC PARKING
HUNTER PARKING IMPARK
GMC PARKING
JOHNNY’S AUTO PARK JOE’S PARKING
USA PARKING
LAS OLAS COMPANY LANIER PARKING
VALET PARKING SERVICE
MID-TOWN PARKING PARKING CORPORATION OF AMERICA
ARROW PARKING
PARK SAFE SYSTEM PLATINUM PARKING
CHAMPION PARKING
SHAIA PARKING SYSTEM PARKING
CITIPARK
SPECTRUM INTERPARK
GGMC PARKING
SPOT PARKING U-PARK
MODERN PARKING
UNIVERSAL PARKING PREMIER PARKING
ONE PARKING
WILMINGTON PARKING AUTHORITY PREFERRED PARKING
ALLPRO PARKING
HOME ADVANCED PARKING PMI PARKING
MODERN PARKING, INC.
ALAN EBER COMPANY ACE PARKING
PHILADELPHIA PARKING AUTHORITY
ALLRIGHT PARKING PARKWAY CORPORATION
PRIVATE PARKING
ALLSTATE PARKING COMPANY PARK AMERICA
CALIFORNIA PARKING
ALRIGHT PARKING TOWNE PARK
INFINITY PARKING
AMERICAN VALET ICON PARKING
KEY PARKING
AUTOPARK UNITED PARKING
LOOP PARKING
BEST PARKING PRIORITY PARKING
MID CITY PARKING
CAL STATE Si PREMIUM PARKING
PARAGON PARKING
DOGGETT’S PARKING PILGRIM PARKING
PARKING CONCEPTS
EASY PARKING MIAMI PARKING AUTHORITY
RAPID PARK
ECKLE PARKING AAA PARKING
WINPARK
ELEPHANT CORRAL MID-CON
ALLIANCE PARKING
EMPIRE PARKING FIVE STAR PARKING
ALTMAN ’S PARKING
EXECUPARK, INC MARCPARC
CITY OF FORT LAUDERDALE
FITZINN PARKING SYSTEMS IMPERIAL PARKING
EZ PARK
GATEWAY PARKING QUICK PARK
AUTOMATE PARKING
GEORGIA BUILDING AUTHORITY E-Z PARK GARAGE
DPW PARKING
LITTLE MAN PARKING INTERSTATE PARKING
GLENWOOD PARKING
MCGOUGH FAC MGT PARK ONE
METRO PARKING
MILLENNIUM PARKING PATRIOT PARKING
PEOPLE’S AUTO PARKING
MONUMENT PARKING ALLIED PARKING
PHILADELPHIA PARKING AUTHORITY
PARKING MANAGEMENT SERVICES SUNDANCE
US PARKING
PARKING NETWORK MERIT PARKING
ALPHA PARK
PARKWAY PARKING PRESTIGE PARKING
CITY OF SACRAMENTO
PINSTRIPE PARKING TAMPA PARKING AUTHORITY
CITY OF SANTA MONICA
SAN FRANCISCO MUNICIPAL ATHENA PARKING
COWTOWN PARKING
TRANSPORTATION COMPANY BEST PARK
DOWNTOWN AUTO PARK
SPIRE PARKING CITY PARKING
DOWNTOWN PARKING
STOP-N-PARK LAM PARKING
GENERAL TRADING CO.
SUPER PARKING UNIFIED PARKING
KEEFE
THE PARKING SPOT NETWORK PARKING
LINCOLN PARK
TOCA PARK TIME PARK
NATION PARKING
URBAN PARKING EDISON PARKING
PACIFIC PARK MANAGEMENT, INC.
WELCOME PARKING STANHOPE GARAGE
QUALITY PARKING
WEST PARKING STOCKTON PARKING AUTHORITY
RICHMOND METROPOLITAN
24 HOUR PUBLIC PARKING-SABUS PROPARK
RPM PARKING
ADC PARKING PMS PARKING
S & T PARKING
ALLIED PARKING, INC. STAR PARKING
STATE OF VIRGINIA
ALLIED AUSTIN CO. DOUGLAS PARKING
TOWER VALET
AREA PARKING MANHATTAN PARKING GROUP
AMBASSADOR PARKING
AUTOZONE 717 PARKING ENTERPRISES
AUSTIN CONVENTION CENTER
B&J PARKING PARKING SOLUTIONS
CAMDEN PARKING AUTHORITY
BENSON PARKING CITY PARK
CHILDRESS KLEIN
BOSTON ATLANTIC PARKING LLC CLASSIC PARKING
CHINOOK PARKING
BOSTON DESIGN CENTER LANDMARK PARKING
CITY OF LONG BEACH
BRADFORD PARKING MANHATTAN PARKING GROUP
CITY OF WHITE PLAINS
BRIGHT PARKING ROYAL PARKING
CITY OF WINSTON SALEM
BRONX PARKING SECURE PARKING
CIVIC CENTRE PARKING
CAPITAL PARKING
CASCADE PARKING
612 COMPANY
DEARDEN’S PARKING CBD PARKING
77 VAN NESS
DENNISON PARKING INC. CITY CENTER PARKING
A TO Z BUSINESS CORP.
DENSON PARKING CITY OF CLEVELAND
A&S PARKING
DENVER ATHLETIC CLUB CITY OF LOS ANGELES
ACADEMY OF ART
DOUBLE PARK LLC CITY OF MIAMI BEACH
ADVANTAGE PARKING
DOWNTOWN MERCHANT GARAGE CITY OF RICHMOND
AIRPORT PARKING
DUKE ENERGY CITY OF SAN JOSE
ALL -CITY PARKING
E & B PARKING CLEVELAND STATE U.
ALLIED - TRANPARK
EASY PARKING SERVICES COMMUNITY PARKING
AMBASSADOR
EDISON PARKFAST CONSOLIDATED PARKING
AMERICAN REAL ESTATE PARTNERS
EMBASSY SUITES COUNTY MANAGED
AMERICAN PARKING MANAGEMENT
ENTERPRIZE CUYAHOGA COUNTY
ASP PARKING
ERDANA PARKING DAILY PARKING INC
ASTA PARKING (VALET)
EXEMPLA HOSPITAL DAYS INN
AUGUST VENTURES
EXIT 66 CORP. DELAWARE RIVER WATERFRONT CORP
AUSTIN ST. CORPORATION
EXPRESS PARK DENISON PARKING
AVALON RIVERVIEW NORTH
EZ PARK AND FLY DISTINCTIVE PARKING
AVP PARKING
FEDERAL AUTO PARKS ELITE PARKING
BAUTISTA PARKING
FIRST BAPTIST CHURCH EXEC HILLS
BAY AREA PARKING SERVICE
FOREST PARKING EXPRESS PARKING
BAY PARKING
FRANKLIN PARKING FAMILY PARKING
BELLA LOT
FULL HOUSE PARKING FASHION DISTRICT PARKING
BELLEVUE SQUARE
GENERAL PARKING FIRST CLASS PARKING
BEST WESTERN HOTEL
GENERAL PARKING SYSTEMS FREEWAY PARK GARAGE
BETH PARKING
GILPIN PARKING FROST BANK TOWER
BILLS GAS & CO. PARKING
GLOBAL PACIFIC GOOD PARKING (ST. ANDREWS)
BILLY ’S PARKING
GMC MIDWAY CAR PARK GRANT PARKING
BLUFF CITY PARKING SOLUTIONS
GNO PARKING LOT HANNEMAN U. HOSPITAL
BOSTONIAN MILLENNIUM HOTEL - ULTIMATE VALET
GORDON PARKING HBA PARKING SYSTEM
GROWER’S ASSOCIATION HODES PARKING
BROOKS TOWER GARAGE
GW PARKING ISAAC’S PARKING SERVICE
BROWARD COUNTY SCHOOL BOARD
HAMPTON INN MAC PARKING
BUCHANAN PLAZA
HERITAGE GARAGE MAGEE HOSPITAL
BUILDING OWNED - KODIAK REALTY
HERTZ CORP MIAMI DADE COMMUNITY COLLEGE
C&W PARKING
HIGHLAND RESOURCES MID-ATLANTIC PARKING SERVICES
CAL STAR PARKING
HILTON HOTELS MONUMENT CITY PARKING
CALIFORNIA PARKING SERVICE
HOLIDAY INN NATIONAL PARKING SOLUTION
CALIFORNIA STREET PARKING
HORSESHOE CASINO NEUMANN PARKING
CAMDEN CITY PARKING
HOTEL NIKKO OWNER OPERATED
CAMDEN COMMUNITY COLLEGE
HRF OPERATING CORP. PARK CHARLOTTE
CAPLAN’S RAINBOW
HUDSON TOWER GARAGE PARK INC
CAROLINA TIME
HY PARK PARKING SUNSET
CENTER CITY PLACE
HYDE PARK MGMT. PENN PARKING
CENTRAL PARK
INDIVIDUAL OWNER PERFECT PARKING
CHARLOTTE POLICE
INS PARKING PHILLY PARK
CHAVEZ PARKING
INTEGRA VALET PPARKING
CHESAPEAKE
INTERNATIONAL PARKING PRIVATE LOT
CHOP HOUSE VALET
JACK BOLES SERVICES INC. PUBLIC PARK
CIRCLE PARKING CORPORATION
JEFFERSON HOTEL PUBLIC PARKING
CITY PARKING COMPANY
JOHNSON AND WALES RUIZ PARKING
CITY OF COLORADO SPRINGS
JOHNSON CONTROLS INC. S.T.A. PARKING
CITY OF OAKLAND
KAISER PERMANENTE SES PARKING
CITY OF PHILADELPHIA
KATCO INC STATE OF CALIFORNIA
CITY OF SAN MATEO
KATZ PARKING SYSTEMS SUTTER PARKING
CITY OF STOCKTON
KELLER ENTERPRISES SYLVAN PARKING
CITY-OPERATED PARKING
THE L&R GROUP OF COMPANIES TRISTATE VALET
CLT/DOUGLASS AIRPORT
L.S.U. SCHOOL PRIVATE U STREET PARKING
COLUMBUS TOWER PARKING
LANIER PARKING SOLUTIONS UNIFIED VALET PARKING INC.
COMMERCE PARKING
LAS OLAS CONDO ASSOCIATION UNIVERSITY OF TENNESSEE-PARKING
CONVENIENT PARKING
LATIMER PARKING VICTORY PARKING
COOK CONVENTION CENTER
LIBERTY PARK VIRGINIA COMMONWEALTH UNIVERSITY
THE CORDISH COMPANY
LINCOLN CENTER
CORINTHIAN
LOTS OF LUCK WC AUTO PARK
CORNERSTONE PARKING
M&E PARKING WEBSTER PARKING
CPM PARKING
MAR-TEN PARKING ZENANLI PARKING
CRESTONE PARTNERS (OWNERSHIP)
MARRIOTT 1818 MARKET STREET LLC
CROWN PARKING
MARTA 1ST TN
CROWNE PLAZA
MEM VALET 365 MANAGEMENT
CUSHMAN & WAKEFIELD
MERCHANTS PARKING 519 PRIVATE PARKING
DANKER AND DONOHUE
MERIT/PLATINUM
MIAMI DADE COUNTY
ROSIN’S PARKING
MIKULAY CO
ROSSMORE PARTNERS
MILE HIGH VALET
ROYAL AUTO PARK
MILWAUKEE COUNTY
RRB PARKING
MOTOR MOUTH GARAGE
SAFETY PARK
MILWAUKEE SCHOOL OF ENGINEERING
SAGAMORE
MUD ISLAND
SHORENSTEIN
MUNICIPAL PARKING
SKY PARKING
MYNOR’S PARKING SERVICES
SMART PARKING
NATIONAL PARKING
SMW AUTOPARK
NATIONWIDE PARKING
SOUTH FLORIDA PARKING ASSOCIATION
NEW WORLD GARAGE
SQUARE PLUS OPERATING CORP.
NO. BEACH PARKING
SSC (SAM C STANFORD) PARKING
NORTHMARQ (MIDWEST PLAZA PARKING
ST. DAVID’S CHURCH
STAR PARK
NYC MUNICIPAL PARKING
STATE OF OHIO
OKEY PARK
STATE OF TEXAS
OLD 1ST CHURCH
STOP PARKING
OLIANTA GARAGE
SUBWAY PARKING (LIRR LOT)
OLYMPIC
SUGARCUBE DENVER POLICE PARKING
ONE PARK
SUNSHINE PARKING
OWNER OPERATED - ATHLETIC CLUB PRIVATE
SUPERIOR PARKING
SUPREME VALET PARKING
OWNER OPERATED - HARRAH’S CASINO
SWIFT PARKING
TAM’S PARKING
OWNER OPERATED - HOLIDAY INN
TERENCE CARDINAL COOKE
OWNER OPERATED - HOTEL PARKING
THANKS A LOT – PARK MILWAUKEE
OWNER OPERATED - MONTELEONE HOTEL
THE GARAGE AT EDGEWATER
THE LOFTS AT 1835 ARCH STREET
OWNER OPERATED - OMNI ROYAL HOTEL PRIVATE
THE MONDRIAN HOTEL (QUALITY PARKING SERVICES)
OWNER OPERATED - PRIVATE PARKING
TOWN PARKING
OWNER OPERATED - ROYAL SONESTA HOTEL
TRANSPARK
TRITON HOTEL (VALET WITH NO ON-SITE PARKING)
OWNER OPERATED - TULANE MED SCHOOL PRIVATE
U PARK N LOCK
P&S AUTOPARK
U.S. BANK CENTER
PARK ONE
ULTRA CAPITAL CAR PARK
PARK AIR EXPRESS
ULTRA EMERALD CAR PARK
PARKING PARTNERS
ULTRA PARKING
PARKING SYSTEM OF AMERICA
UNI PARK
PECO ENERGY
UNIPARK LLC
PENINSULA PARKING
US HASTING PARKING SERVICES
PETERSON BLDG (QUALITY PARKING SERVICES)
VA HOSPITAL
W.C. HUTCHINSON REALTY
PFISTER STRUCTURE
WEST 108 STREET PARKING
PHILADELPHIA ARCHDIOCESE
WEST HOLLYWOOD PUBLIC PARKING
PHILADELPHIA CITY PARKING LOT
WESTERN SOUTHERN
PHILADELPHIA GATEWAY
WESTIN HOTEL
PHILADELPHIA MANAGEMENT
WHITE HOUSE GARAGE
PIONEER PARKING
WILSON PARKING
RIP PARKING CORP.
WINDSOR PARKING
PORTSIDE GARAGE
WISCONSIN CENTER DISTRICT
POSTAL SERVICE EMPLOYEE LOT
WORLDWIDE PARKING ASSOCIATES
PPS PARKING
WSC PARKING
PRECISE PARKING LLC
YES PARKING
PRIME F&S PARKING
ZAK PARKING
PRINCE PARKING
ZETA PARKING
PRIVATE (SOUTH TEXAS COLLEGE OF LAW)
IN-HOUSE- LIBRARY METER LOT
ALLINA HOSPITA/IN -HOUSE
PRO-STAFF
CUSHMAN & WAKEFIELD (IN-HOUSE)
PROGRESS PARKING SYSTEM
IN-HOUSE (HINES)
PYRAMID PARKING
IN-HOUSE (RITZ CARLTON HOTEL)
RANIER CLUB
IN-HOUSE(CARTER REAL ESTATE)
RED PEAK PROPERTIES
LICOLN CENTER IN-HOUSE
RENAISSANCE PARKING
MS PROPERTIES (IN-HOUSE PARKING)
RICH CITY PARKING
PNC GARAGE-MANAGED IN-HOUSE
RICHMOND PARKING
ROBERT TREAT HOTEL (IN-HOUSE)
RIVER BANK PLAZA
RIVER PARKING SYSTEM
RIVER WATCH GARAGE
SCHEDULE 1.1(b)
Existing Letters of Credit
Issuing Lender
LOC Number Customer Name
Applicant Name Beneficiary
Issue Date
Expiry Date
Outstanding
Bank of America
00000068019430
Standard Parking Corporation
Standard Parking Corporation
**
6/30/07
6/30/13
$ 100,000.00
Bank of America 00000068061287
Standard Parking Corporation
Standard Parking Corporation
**
9/1/11 9/1/13
$ 50,000.00
Wells Fargo NZS522723WF
Standard Parking Corporation
Standard Parking Corporation
**
7/10/04 12/10/12
$ 17,472,913.00
Wells Fargo NZS573489WF
Standard Parking Corporation
Standard Parking Corporation
**
6/30/06 6/30/13
$ 200,000.00
Bank of America 00000003031169
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF
**
11/15/2000 11/15/2012
333,333.32
Bank of America 00000003032576
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF NEW YORK,
**
11/28/2000 12/01/2012
120,000.00
Bank of America 00000003041235
CENTRAL PARKING CORPORATION
CENTRAL PARKING CORPORATION
**
10/16/2001 10/01/2012
25,593,000.00
Bank of America 00000003048889
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF VIRGINIA
**
6/13/2002 1/31/2013
350,000.00
Bank of America 00000003053892
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM, INC.
**
2/21/2003 1/31/2013
250,000.00
Bank of America 00000003058662
CENTRAL PARKING CORPORATION
KINNEY PARKING SYSTEM, INC.
**
10/29/2003 3/14/2013
240,500.00
Bank of America 00000003059731
CENTRAL PARKING CORPORATION
KINNEY PARKING SYSTEM, INC.
**
11/19/2003 12/31/2012
18,816.00
Bank of America 00000003060112
CENTRAL PARKING CORPORATION
CENTRAL PARKING CORPORATION
**
11/20/2003 11/21/2012
7,800,000.00
Bank of America 00000003060402
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF NEW YORK,
**
12/09/2003 12/31/2012
32,500.00
Bank of 00000003060431
CENTRAL PARKING
CENTRAL PARKING **
12/11/2003 12/08/2012
104,166.67
America CORPORATION
SYSTEM OF VIRGINIA,
Bank of America 00000003061605
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF NEW YORK,
**
3/16/2004 3/14/2013
140,770.32
Bank of America 00000003062036
CENTRAL PARKING CORPORATION
KINNEY PARKING SYSTEM INC
**
3/24/2004 6/30/2013
202,500.00
Bank of America 00000003064083
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF NEW YORK,
**
7/02/2004 6/30/2013
500,000.00
Bank of America 00000003064599
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF NEW YORK,
**
7/29/2004 7/29/2013
135,000.00
Bank of America 00000003065248
CENTRAL PARKING CORPORATION
KINNEY PARKING SYSTEM, INC.
**
8/31/2004 8/01/2013
70,000.00
Bank of America 00000003072153
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF
**
1/24/2005 12/31/2012
100,000.00
Bank of America 00000003078424
CENTRAL PARKING CORPORATION
CENTRAL PARKING CORPORATION
**
11/09/2005 11/07/2012
250,000.00
Bank of America 00000003078774
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF
**
12/01/2005 10/31/2012
277,084.50
Bank of America 00000003081823
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF NEW
**
4/27/2006 4/30/2013
500,000.00
Bank of America 00000003082004
CENTRAL PARKING CORPORATION
USA PARKING, INC.
** 5/08/2006
5/01/2013 165,000.00
Bank of America 00000003083249
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM
**
7/27/2006 6/27/2013
49,166.67
Bank of America 00000003084297
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF NEW YORK,
**
9/18/2006 9/18/2012
43,000.00
Bank of America 00000003084298
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF NEW YORK,
**
9/18/2006 9/18/2012
37,000.00
Bank of 00000003086060
CENTRAL PARKING
CENTRAL PARKING **
1/05/2007 1/05/2013
250,000.00
America CORPORATION
CORPORATION
Bank of America 00000003088449
CENTRAL PARKING CORPORATION
CENTRAL PARKING CORPORATION
**
6/15/2007 6/01/2013
100,000.00
Bank of America 00000003088452
CENTRAL PARKING CORPORATION
AIRPORT PARKING ASSOCIATES,
**
6/28/2007 6/28/2013
500,000.00
Bank of America 00000003088893
CENTRAL PARKING CORPORATION
NEW SOUTH PARKING - CALIFORNIA
**
7/02/2007 7/02/2013
500,000.00
Bank of America 00000003090690
CENTRAL PARKING CORPORATION
NEW SOUTH PARKING-CALIFORNIA
**
11/08/2007 11/12/2012
500,000.00
Bank of America 00000003090772
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEMS OF NEW YORK
**
11/27/2007 12/31/2012
765,000.00
Bank of America 00000003091701
CENTRAL PARKING CORPORATION
CENTRAL PARKING CORPORATION
**
1/30/2008 3/31/2013
570,000.00
Bank of America 00000003092130
CENTRAL PARKING CORPORATION
CENTRAL PARKING CORPORATION,
**
3/11/2008 1/31/2013
600,000.00
Bank of America 00000003093640
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF NEW YORK,
**
5/30/2008 5/22/2013
125,000.00
Bank of America 00000003094256
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF
**
7/09/2008 8/31/2013
1,700,000.00
Bank of America 00000003095940
CENTRAL PARKING CORPORATION
CENTRAL PARKING CORPORATION
**
9/16/2008 5/31/2013
5,000,000.00
Bank of America 00000003095941
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF VIRGINIA,
**
9/16/2008 9/30/2012
397,500.00
Bank of America 00000003096609
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF NEW YORK,
**
10/24/2008 10/24/2012
21,705.88
Bank of America 00000003096610
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF NEW YORK,
**
10/24/2008 10/24/2012
103,500.00
Bank of America 00000003096611
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF
**
10/24/2008 10/24/2012
61,676.47
NEW YORK,
Bank of America 00000003096612
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF NEW YORK,
**
10/24/2008 10/24/2012
38,117.65
Bank of America 00000003099695
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF NEW YORK,
**
7/03/2009 9/30/2012
68,750.00
Bank of America 00000003113275
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM OF NEW YORK,
**
6/17/2010 6/16/2013
292,500.00
Bank of America 00000003117652
CENTRAL PARKING CORPORATION
CENTRAL PARKING CORPORATION
**
8/18/2011 1/12/2013
827,000.00
Bank of America 00000003117653
CENTRAL PARKING CORPORATION
CENTRAL PARKING CORPORATION
**
8/19/2011 9/30/2012
500,000.00
Bank of America 00000003118224
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM
**
10/07/2011 9/30/2012
375,000.00
Bank of America 00000003118274
CENTRAL PARKING CORPORATION
CENTRAL PARKING SYSTEM
**
10/12/2011 6/30/2013
500,000.00
SCHEDULE 1.1(c)
EBITDA
Fiscal Quarter Ended
September 30, 2011
Fiscal Quarter Ended
December 31, 2011
Fiscal Quarter
Ended March 31, 2012
Fiscal Quarter
Ended June 30, 2012
STAN earnings before income, taxes, depreciation and
amortization 12,408,000
8,453,000 6,584,000
9,900,000
Central earnings before income, taxes, depreciation and amortization
13,520,000 7,148,000
3,229,000 10,038,000
Non-cash stock compensation
411,000 727,000
361,000 502,000
Transaction costs
344,000 2,311,000
3,208,000 4,351,000
Quarter End EBITDA
26,683,000 18,639,000
13,382,000 24,791,000
SCHEDULE 9.8
Equity Ownership; Subsidiaries
Subsidiary / Joint Venture
Owner
Jurisdiction of
Organization
Percentage of Interests
Number of
Shares
Certificate Number
Expert Parking, Inc. Standard Parking Corporation
Pennsylvania 100 % 1,000
3 Expert Parking Management, Inc.
Standard Parking Corporation
Pennsylvania
100 % 1,000
3
SP Plus Logistics, Inc. Standard Parking Corporation
Delaware 100 % 1,000
1 SP Plus Property Management, Inc.
Standard Parking Corporation
Delaware
100 % 100
1
SP Plus Security Services, Inc. Standard Parking Corporation
Delaware 100 % 100
2 Standard Auto Park, Inc.
Standard Parking Corporation Illinois
100 % 7,840 14
Standard Parking Corporation IL Standard Parking Corporation
Delaware 100 % 1
1 Gameday Management (UK) Limited
Standard Parking Corporation
UK (England and Wales)
100 % 100
1 and 2
Standard Parking of Canada Ltd. (aka Les Stationnements Standard Du Canada Ltee)
Standard Parking Corporation
Canada
100 % 100
1 and 2
SP Plus Security of Canada Ltd. Standard Parking of Canada Ltd.
Canada 100 % 100
1 APCOA LaSalle Parking Company, LLC
Standard Parking Corporation
Louisiana
100 % N/A
N/A
APCOA Bradley Parking Company, LLC
Standard Parking Corporation
Connecticut
100 % N/A
N/A
Parking Data Ventures, LLC Standard Parking Corporation
Delaware 33.3 % N/A
N/A Parking Data Ventures, LLC
Central Parking Corporation Delaware
33.3 % N/A N/A
Parking Data Ventures, LLC **
Delaware 33.3 % N/A
N/A
Subsidiary / Joint Venture
Owner
Jurisdiction of
Organization
Percentage of Interests
Number of
Shares
Certificate Number
Bradley Airport Parking Limited Partnership
Standard Parking Corporation
Connecticut
60 % N/A
N/A
Bradley Airport Parking Limited Partnership
TBI-BDL Garaje, LLC
Connecticut
40 % N/A
N/A
Standard/AllTemps Joint Venture
Standard Parking Corporation
Illinois
75 % N/A
N/A
Standard/AllTemps Joint Venture
All Temps 1
Illinois
25 % N/A
N/A
Standard Municipal Parking Joint Venture
Standard Parking Corporation
Delaware
50 % N/A
N/A
Standard Municipal Parking Joint Venture
MG Enterprises of New Orleans LLC
Delaware
50 % N/A
N/A
Standard Municipal Parking Joint Venture II
Standard Parking Corporation
Delaware
50 % N/A
N/A
Standard Municipal Parking Joint Venture II
Parking Solutions, LLC
Delaware
50 % N/A
N/A
** **
Illinois **
N/A
N/A **
** Illinois
**
N/A N/A
Standard Parking Midway Joint Venture
Standard Parking Corporation
Illinois
80 % N/A
N/A
Standard Parking Midway Joint Venture
Globetrotters International, Inc.
Illinois
20 % N/A
N/A
SP Plus Curbside Management Joint Venture
SP Plus Transportation
Florida
50 % N/A
N/A
SP Plus Curbside Management Joint Venture
B&L Service, Inc.
Florida
50 % N/A
N/A
Sparkle Parking Joint Venture Standard Parking of Canada Ltd.
Canada 50 % N/A
N/A Sparkle Parking Joint Venture
Sparkle Solutions Canada
50 % N/A N/A
KCPC Holdings, Inc. Standard Parking Corporation
Delaware 100 % 225,100,000
42 KCPC Intermediate Holdings, Inc.
KCPC Holdings, Inc.
Delaware
100 % 1,000
2
Central Parking Corporation KCPC Intermediate Holdings, Inc.
Delaware 100 % 1,000
1 Parking System, LLC
Central Parking System, Inc. Tennessee
100 % None None
Central Parking Finance Trust Central Parking Corporation
Delaware 100 % None
None Central Parking System Midwest, LLC
Central Parking Corporation
Tennessee
100 % None
None
Parking Data Ventures, LLC Central Parking Corporation
Delaware 33 % None
None Parking Data Ventures, LLC
Standard Parking Corporation Delaware
33 % None None
Parking Data Ventures, LLC **
Delaware **
None
None USA Parking System, Inc. (f/k/a Marlin, Inc.)
Central Parking Corporation
Tennessee
100 % 20
1
Central Parking System of Venezuela, S.A.
Central Parking Corporation
Venezuela
69 %
Subsidiary / Joint Venture
Owner
Jurisdiction of
Organization
Percentage of Interests
Number of
Shares
Certificate Number
Central Parking System of Venezuela, S.A.
JV Partner
Venezuela
31 %
Allright Corporation Parking System, LLC
Delaware 100 % 1,000
12 Allright Carpark, Inc.
Allright Corporation Missouri
100 % 20 10
Allright New York Parking, Inc. Allright Corporation
New York 100 % 25
3 Universal Parking, Inc.
Allright Corporation Arizona
100 % 20 11
** **
California **
None
None **
** California
**
None None
** **
California **
None
None **
** California
**
None None
Central Parking System of Alabama, Inc. (fka Allright Birmingham, Inc.)
Allright Corporation
Alabama
100 % 20
10
New South Parking Metropolitan Alabama, G.P.
Central Parking System of Alabama, Inc. (fka Allright Birmingham, Inc.)
Tennessee
70 % None
None
New South Parking Metropolitan Alabama, G.P.
Global Parking Systems, LLC
Tennessee
30 % None
None
Central Parking System of Arkansas, Inc. (fka Allright L.R. Inc.)
Allright Corporation
Arkansas
100 % 20
10
Central Parking System of Nebraska, Inc. (fka Allright Parking Omaha, Inc.)
Allright Corporation
Nebraska
100 % 20
10
Central Parking System Realty of New York, Inc.
Allright Corporation
Tennessee
100 % 20
4
** **
New York **
None
None **
** New York
**
None None
** **
Massachusetts **
None
None **
** Massachusetts
**
None None
Subsidiary / Joint Venture
Owner
Jurisdiction of
Organization
Percentage of Interests
Number of
Shares
Certificate Number
** **
Massachusetts **
None
None **
** Massachusetts
**
None None
Black Angus LLC
Central Parking System Realty of New York, Inc.
New York
100 % N/A
3
301 East Saratoga Street Business Trust
Allright Corporation
Maryland
100 % 1,000
3
305 Guilford Avenue Business Trust
Allright Corporation
Maryland
100 % 1,000
3
11 East Franklin Street Business Trust
Allright Corporation
Maryland
100 % 1,000
3
CPS of the Northeast, Inc. Allright Corporation
Tennessee 100 % 20
10 **
** Tennessee
**
None None
** **
Tennessee **
None
None **
** Michigan
**
** 10
** **
Michigan **
None
None **
** Michigan
**
None None
** **
Illinois **
** **
Illinois **
CPS Airport Development, L.L.C.
Allright Corporation
Louisiana
100 % None
1
** **
Louisiana **
None
None **
** Louisiana
**
None None
Commerce Street J.V. Allright Corporation
Tennessee 50 % None
None Commerce Street J.V.
RCM Interests Tennessee
50 % None None
** **
Oklahoma **
None
None
Subsidiary / Joint Venture
Owner
Jurisdiction of
Organization
Percentage of Interests
Number of
Shares
Certificate Number
** **
Oklahoma **
None
None **
** Colorado
**
None None
** **
Colorado **
None
None **
** Massachusetts
**
None None
** **
Massachusetts **
None
None Central Parking System, Inc.
Central Parking Corporation Tennessee
100 % 20 6
Central Parking System—Airport Services, Inc.
Central Parking System, Inc.
Tennessee
100 % 20
10
Central Parking System Brasil, Limitada
Central Parking System, Inc.
Brazil
100 %
Central Parking System of Connecticut, Inc.
Central Parking System, Inc.
Tennessee
100 % 20
10
Central Parking System of Rhode Island, LLC
Central Parking System, Inc.
Tennessee
100 % None
None
Central Parking System of Georgia, Inc.
Central Parking System, Inc.
Tennessee
100 % 20
1
Atlanta Parking Associates
Central Parking System of Georgia, Inc.
Tennessee
60 % None
None
Atlanta Parking Associates Autopark of Georgia, Inc.
Tennessee 40 % None
None **
** Tennessee
**
None None
** **
Tennessee **
None
None Central Parking System of Kentucky, LLC
Central Parking System, Inc.
Tennessee
100 % None
None
Central Parking System of Indiana, Inc.
Central Parking System, Inc.
Indiana
100 % 20
10
Superior Parking Systems, GP
Central Parking System of Indiana, Inc.
Indiana
70 % None
None
Superior Parking Systems, GP Pillow Burns, LLC
Indiana 30%
None
None Central Parking System of Louisiana, LLC
Central Parking System, Inc.
Tennessee
100 % None
None
New South Parking System
Central Parking System of Louisiana, LLC
Tennessee
60 % None
None
Subsidiary / Joint Venture
Owner
Jurisdiction of
Organization
Percentage of Interests
Number of
Shares
Certificate Number
New South Parking Systems Global Parking Systems, LLC
Tennessee 40 % None
None Park One of Louisiana, LLC
Central Parking System of Louisiana, LLC
Louisiana
100 % None
2
Central Parking System of Maryland, Inc.
Central Parking System, Inc.
Tennessee
100 % 20
1
Baltimore Parking Associates
Central Parking System of Maryland, Inc.
Tennessee
60 % None
None
Baltimore Parking Associates
Brown, Diffenderffer & Kearney, LLP
Tennessee
40 % None
None
Chesapeake Parking Associates
Central Parking System of Maryland, Inc.
Tennessee
60 % None
None
Chesapeake Parking Associates Banks Contracting Company, Inc.
Tennessee 40 % None
None Central Parking System of Mississippi, LLC
Central Parking System, Inc.
Tennessee
100 % None
None
** **
Tennessee **
None
None **
** Tennessee
**
None None
Central Parking System of Missouri, LLC (fka CPS-St. Louis, Inc.)
Central Parking System, Inc.
Tennessee
100 % None
None
** **
Missouri **
None
None **
** Missouri
**
None None
** **
Missouri **
None
None **
** Missouri
**
None None
** **
Tennessee **
None
None **
** Tennessee
**
None None
Central Parking System of New York, Inc.
Central Parking System, Inc.
Tennessee
100 % 20
2
** **
New York **
None
None
Subsidiary / Joint Venture
Owner
Jurisdiction of
Organization
Percentage of Interests
Number of
Shares
Certificate Number
** **
New York **
None
None Central Parking System of North Carolina, Inc.
Central Parking System, Inc.
Tennessee
100 % 20
10
** **
North Carolina **
None
None **
** North Carolina
**
None None
Central Parking System of Ohio, Inc.
Central Parking System, Inc.
Tennessee
100 % 20
1
** **
Tennessee **
None
None **
** Tennessee
**
None None
CPS Parking Services, S.A. Central Parking System, Inc.
Dominican Republic 100 %
CPS Parking, S.A. Central Parking System, Inc.
Dominican Republic 100 %
Central Parking System of Oklahoma, LLC
Central Parking System, Inc.
Tennessee
100 % None
None
Central Parking System of Pennsylvania, Inc.
Central Parking System, Inc.
Tennessee
100 % 20
1
Central Parking System of Puerto Rico
Central Parking System, Inc.
Tennessee
100 % 20
10
Central Parking System of Florida, Inc.
Central Parking System, Inc.
Tennessee
100 % 20
1
** **
Tennessee **
None
None **
** Tennessee
**
None None
** **
Tennessee **
None
None **
** Tennessee
**
None None
** **
Tennessee **
None
None **
** Tennessee
**
None None
** **
Tennessee **
None
None **
** Florida
**
None None
Subsidiary / Joint Venture
Owner
Jurisdiction of
Organization
Percentage of Interests
Number of
Shares
Certificate Number
** **
Florida **
None
None Central Parking System of Tennessee, LLC
Central Parking System, Inc.
Tennessee
100 % None
None
CPS Finance, Inc.
Central Parking System of Tennessee, LLC
Delaware
100 % 20
3
Central Parking System of Virginia, Inc. (fka Diplomat Parking Corp.)
Central Parking System, Inc.
Washington, D.C.
100 % 1,008
87
** **
Tennessee **
None
None **
** Tennessee
**
None None
** **
Tennessee **
None
None **
** Tennessee
**
None None
Central Parking System of Washington, Inc.
Central Parking System, Inc.
Tennessee
100 % 20
2
Central Parking System of Wisconsin, LLC
Central Parking System, Inc.
Tennessee
100 % None
None
Inversiones Central Parking System Limitada
Central Parking System, Inc.
Chile
100 %
** **
Illinois **
None
None **
** Illinois
**
None None
** **
Tennessee **
None
None **
** Tennessee
**
None None
** **
Tennessee **
None
None Central Parking System of Texas, Inc.
Central Parking System, Inc.
Texas
100 % 20
2
** **
Tennessee **
None
None **
** Tennessee
**
None None
Kinney System, Inc. Central Parking System, Inc.
Delaware 100 % 20
4 Kinney — 9 Street, LLC
Kinney System, Inc. Tennessee
100 % None None
Kinney—Civic Kinney System,
New York 100 % 20
10 th
Subsidiary / Joint Venture
Owner
Jurisdiction of
Organization
Percentage of Interests
Number of
Shares
Certificate Number
Center, Inc. Inc.
Kinney Parking System, LLC Kinney System, Inc.
Tennessee 100 % None
None Slate Parking Corp.
Kinney Parking System, LLC New York
100 % 20 10
Stop — Park Garage, LLC Kinney Parking System, LLC
Tennessee 100 % None
None Kinney Parking, LLC
Kinney System, Inc. Delaware
100 % None None
Kinney System Eastside Parking, Inc.
Kinney System, Inc.
New York
100 % 20
10
Central Parking Purchasing, LLC (fka Kinney System Management, Inc.)
Kinney System, Inc.
Tennessee
100 % None
None
Kinney West 83 St., Inc. Kinney System, Inc.
New York 100 % 20
10 Central Parking System of New Jersey, LLC
Central Parking System, Inc.
Tennessee
100 % None
None
Parking Facility System, Inc.
USA Parking System, Inc. (f/k/a Marlin, Inc.)
Tennessee
100 % 20
10
USA Parking System of Puerto Rico, Inc. (fka Marlin of PR, Inc.)
USA Parking System, Inc. (f/k/a Marlin, Inc.)
Puerto Rico
100 % 20
2
USA Parking System of the Bahamas, Inc.
USA Parking System, Inc. (f/k/a Marlin, Inc.)
Bahamas
100 %
** **
Florida **
None
None **
** Florida
**
None None
** **
Florida **
None
None **
** Florida
**
None None
** **
Florida **
None
None **
** Florida
**
None None
rd
Subsidiary / Joint Venture
Owner
Jurisdiction of
Organization
Percentage of Interests
Number of
Shares
Certificate Number
** **
Florida **
None
None **
** Florida
**
None None
** **
Florida **
None
None **
** Florida
**
None None
** **
Florida **
None
None Transportation Services USA, Inc.
USA Parking System, Inc. (f/k/a Marlin, Inc.)
Tennessee
100 % 20
10
Central Parking System Hellas, M.P.E.
Central Parking Corporation
Greece
100 %
CPC PropCo, LLC Allright Corporation
Delaware **
None
None CPC PropCo, LLC
Central Parking System Realty of New York, Inc.
Delaware
**
None
None
CPC PropCo, LLC **
Delaware **
None
None CPC PropCo, LLC
** Delaware
**
None None
CPC PropCo, LLC **
Delaware **
None
None CPC PropCo, LLC
** Delaware
**
None None
CPC PropCo, LLC Kinney System, Inc.
Delaware **
None
None CPC MB, LLC
CPC PropCo, LLC Delaware
100 % None 1
CPC Realty, LLC CPC MB, LLC
Delaware 100 % None
1 CPC NY 138 East 50th Realty, LLC
CPC MB, LLC
Delaware
99.9 % N/A
1
CPC NY 138 East 50th Realty, LLC
CPC NY 138 East 50th MB, Inc.
Delaware
0.1 % N/A
2
CPC NY 138 East 50th MB, Inc. CPC PropCo, LLC
Delaware 100 % 1,000
1 CPC NY 332 West 44th Realty, LLC
CPC MB, LLC
Delaware
99.9 % N/A
1
CPC NY 332 West 44th Realty, LLC
CPC NY 332 West 44th MB, Inc.
Delaware
0.1 % N/A
2
CPC NY 332 West 44th MB, Inc.
CPC PropCo, LLC
Delaware
100 % 1,000
1
CPC NY 429 West 36th Realty, LLC
CPC MB, LLC
Delaware
99.9 % N/A
1
CPC NY 429 West 36th Realty, LLC
CPC NY 429 West 36th MB, Inc.
Delaware
0.1 % N/A
2
CPC NY 429 West 36th MB, Inc.
CPC PropCo, LLC
Delaware
100 % 1,000
1
CPC NY 12 West 48th Realty, LLC
CPC MB, LLC
Delaware
99.9 % N/A
1
CPC NY 12 West 48th Realty, LLC
CPC NY 12 West 48th MB, Inc.
Delaware
0.1 % N/A
2
CPC NY 12 CPC PropCo,
Delaware 100 % 1,000
1
Subsidiary / Joint Venture
Owner
Jurisdiction of
Organization
Percentage of Interests
Number of
Shares
Certificate Number
West 48th MB, Inc. LLC
CPC NY 155 West 48th Realty, LLC
CPC MB, LLC
Delaware
99.9 % N/A
1
CPC NY 155 West 48th Realty, LLC
CPC NY 155 West 48th MB, Inc.
Delaware
0.1 % N/A
2
CPC NY 155 West 48th MB, Inc.
CPC PropCo, LLC
Delaware
100 % 1,000
1
CPC NY 135 East 47th Realty, LLC
CPC MB, LLC
Delaware
99.9 % None
None
CPC NY 135 East 47th Realty, LLC
CPC NY 135 East 47th MB, Inc.
Delaware
0.1 % None
None
CPC NY 135 East 47th MB, Inc. CPC PropCo, LLC
Delaware 100 % 1,000
1 CPC NY 125 West 58th MB, Inc.
CPC PropCo, LLC
Delaware
100 % 1,000
1
CPC NY 445 East 63rd MB, Inc. CPC PropCo, LLC
Delaware 100 % 1,000
1 CPC NY 301 East 69th MB, Inc.
CPC PropCo, LLC Delaware
100 % 1,000 1
CPC NY 222 Riverside MB, Inc. CPC PropCo, LLC
Delaware 100 % 1,000
1 CPC NY 58 Mortimer MB, Inc.
CPC PropCo, LLC Delaware
100 % 1,000 1
CPC NY 61 East Avenue MB, Inc.
CPC PropCo, LLC
Delaware
100 % 1,000
1
** **
California **
None
None **
** California
**
None None
** **
California **
None
None
Subsidiary / Joint Venture
Owner
Jurisdiction of
Organization
Percentage of Interests
Number of
Shares
Certificate Number
** **
California **
None None
** **
California **
None None
** **
California **
None None
** **
California **
None None
SCHEDULE 9.20
Labor Matters
** Agreement between Standard Parking Corporation and **, dated December 1, 2007. ** Agreement between Standard Parking Corporation **, dated April 1, 2010. **Agreement between Standard Parking Corporation (Transportation Division) and **, dated September 1, 2009. ** Agreement between Standard Parking Corporation and **, dated October 1, 2011. ** Agreement between Standard Parking Corporation and **, dated November 1, 2009. ** Agreement between Standard Parking Corporation and **, dated March 1, 2011. ** Agreement between Standard Parking Corporation and ** dated December 1, 2009. ** Agreement between Standard Parking Corporation and **dated May 14, 2012. ** Agreement between ** and **, dated May 1, 2010. ** Agreement between Standard Parking Corporation and **, dated February 1, 2011. ** Agreement between ** and **, dated January 1, 2012. ** Agreement between Standard Parking Corporation and **, dated August 1, 2011. ** Agreement between Standard Parking Corporation and **, dated February 1, 2008. ** Agreement between ** and **, dated March 6, 2009. ** Agreement between Standard Parking Corporation and **, dated June 1, 2010. ** Agreement between Standard Parking Corporation and **, dated December 4, 2008. ** Agreement between Standard Parking Corporation and ** dated September 1, 2009. ** Agreement between Standard Parking Corporation, **, and ** dated May 1, 2010. ** Agreement between ** and ** dated April 16, 2010. ** Agreement between Standard Parking Corporation and **, dated May 1, 2011.
** Agreement between Standard Parking Corporation **, dated January 1, 2011. ** Agreement between Standard Parking Corporation and **, dated May 15, 2007. ** Agreement between Standard Parking Corporation and **, dated March 1, 2010. ** Agreement between ** and **, dated December 1, 2008. ** Master Parking Agreement between **, Standard Parking Corporation, **, Central Parking Systems and **, dated July 1, 2009. ** Commercial and Residential Agreement between Standard Parking Corporation and **, dated November 1, 2011. ** Transportation Agreement between Standard Parking Corporation and **, dated December 1, 2011. ** Valet Agreement between Standard Parking and **, dated July 1, 2010. ** Agreement between Standard Parking Corporation and ** dated February 1, 2012. ** Stadium Parking Lots Agreement between Standard Parking and ** dated March 1, 2011. ** Agreement between **and its members and ** dated June 1, 2009. ** Agreement between Standard Parking Corporation and **, dated July 1, 2010. ** City Lights Agreement between Standard Parking Corporation, locations in **, subject to the ** jurisdictional agreement and **, dated June 1, 2009. ** Agreement between Standard Parking Corporation, **, subject to the ** jurisdictional agreement and **, dated July 1, 2010. ** Agreement between ** and **, dated May 20, 2009. ** Agreement between Central Parking System of ** and **, dated May 1, 2007 ** Agreement between **, **and **, dated February 1, 2009 ** Agreement between **, ** and **, dated February 1, 2012 ** Agreement between ** and **, dated March 6, 2009 ** Agreement between Central Parking/DBA/National Garages, Inc. for Employees Employed at ** and **, dated July 1, 2011
** Agreement between ** at ** and **, dated February 1, 2010 ** Agreement between ** Central Parking (**) and **, dated May 1, 2010 ** Agreement between Central Parking System and **, dated January 1, 2011 ** Agreement between Central Parking System of ** and **, dated March 1, 2010 ** Agreement between ** and Central Parking, dated March 1, 2004 ** Agreement between National Garages, Inc (d/b/a Central Parking System) and **, dated March 6, 2006.(1) ** Agreement between Central Parking Systems and **, dated March 1, 2010 ** Agreement between ** and **, dated December 1, 2008 ** Agreement between Central Parking System, Inc. and **, dated January 3, 2011 ** Agreement between Central Parking System, Inc./** and **, dated December 1, 2008 ** Agreement between **, Standard Parking Corporation, **, ** and **, dated July 1, 2009 ** Agreement between ** and **, dated December 1, 1997, as amended November 18, 2008 and December 1, 2008 ** Agreement between Central Parking Systems and **, dated November 1, 2006 ** Agreement between Central Parking Systems, Inc. and ** dated June 1, 2009 ** Agreement between ** and ** dated as of February 16, 2012, effective May 1, 2011 ** Agreement between ** and **, effective July 1, 2011 ** Agreement between Central Parking (**) Parking Lots and **, dated June 1, 2009 ** Agreement between ** and **, effective July 1, 2011 ** Agreement between Central Parking System of ** and **, dated May 1, 2006 ** Agreement between Central Parking Systems and **, dated June 1, 2004
(1) The parties have negotiated an agreement with a term of January 1, 2012 - June 30, 2016 which should be signed before September 30, 2012 subject to the consent of Standard.
** Agreement between Central Parking System of ** and **, dated May 1, 2002, as amended May 1, 2005 and November 20, 2008 ** Agreement between Central Parking System of ** and **, effective July 1, 2011 ** Agreement between Central Parking Systems at ** and **, dated January 1, 2010 ** Agreement between Central Parking System of ** and the **, dated as of January 10, 2012, effective June 15, 2011 ** Agreement between Central Parking System Parking Facilities in ** and **, dated March 1, 2010 ** Agreement between Service ** and Central Parking System, Inc./**, dated April 1, 2010 ** Agreement between Central Parking System of **, Inc. and **, dated May 31, 2009. ** Agreement between Central Parking System of **, Inc. and **, dated November 1, 2009 ** Agreement between Central Parking System of **, Inc. and **, dated June 1, 2009 ** Agreement between Central Parking System of **, Inc. and **, dated November 1, 2008 ** Agreement between Central Parking System of **, Inc. and **, dated June 1, 2009 ** Agreement between Central Parking System of **, Inc. and ** — January 1, 2010 ** Agreement between Central Parking System of **, Inc. and **, dated October 1, 2006 ** Agreement between Central Parking System, Inc., ** at the ** and **, dated July 1, 2009 * Agreement between Central Parking System of **and **dated August 5, 2005. The parties are working on an extension of the agreement until November 2012.
SCHEDULE 11.1
Debt Existing on the Closing Date
1.
Debt related to Closing Agreement with the New York State Department of Taxation and Finance for franchise taxes for the tax periods ending 9/30/2000-9/30/2007, Audit #X455844816 Payment Agreement, in an aggregate amount not to exceed $6,500,000. The Debt is being paid in monthly installments of approximately $372,000 pursuant to the terms of the Payment Agreement.
2.
Earnout payments in an approximate aggregate amount of $1,200,000 pursuant to that certain Asset Purchase Agreement dated as of September 10, 2010, by and among **, ** and Central Parking Remote Management LLC.
3.
Earnout payments in an amount to be determined based off EBITDA performance pursuant to that certain Employment and Consulting Agreement dated as of October 1, 2011, between William H. Bodenhamer, Jr. and Central Parking Corporation. As of the Closing Date, there are no earnouts due and owing.
4.
Debt incurred pursuant to that Financing Lease for the property located at ** in an aggregate amount of approximately $282,000. 5.
Debt existing in connection with the Capital Leases listed on Schedule 11.2 in an approximate aggregate amount of $698,559. 6.
Debt incurred in connection with an acquisition related Promissory Note from Standard Parking Corporation to ** , as seller, in an approximate amount of $969,155.
7.
Debt incurred in connection with the six year earnout related to the acquisition of ** in the approximate annual amount of $233,333.33 ($1,400,000 total).
8.
Debt incurred in connection with the ten year earnout related to the acquisition of ** in the approximate annual amount of $12,500 ($125,000 total).
9.
Debt incurred in connection with the earnout related to the acquisition of ** with an approximate amount of $200,886.98. 10.
Debt incurred in connection with the earnout related to the acquisition of ** in July 2009 with an accrued liability at June 30, 2012 of $2,062,747.
11.
Debt incurred in connection with the earnout related to the acquisition of ** in December 2010 with an accrued liability at June 30, 2012 of $1,863,673.
SCHEDULE 11.2
Liens Existing on the Closing Date
1.
Liens related to Closing Agreement with the New York State Department of Taxation and Finance for franchise taxes for the tax periods ending 9/30/2000-9/30/2007, Audit #X455844816 Payment Agreement, securing obligations in an aggregate amount not to exceed $6,500,000. The Debt is being paid in monthly installments of approximately $372,000 pursuant to the terms of the Payment Agreement.
2.
Liens relating to the following Capital Leases:
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien Standard Parking Corporation
Wells Fargo Financial Leasing, Inc.
SOS Delaware
20100007603 01/04/2010
Specific Equipment
Standard Parking Corporation IL
Bank of America Leasing & Capital, LLC
SOS Delaware
20102312613 07/01/2010
Specific Equipment
Standard Parking Corporation IL
Bank of America Leasing & Capital, LLC
SOS Delaware
20102658882 07/30/2010
Specific Equipment
Standard Parking Corporation IL
Bank of America Leasing & Capital, LLC
SOS Delaware
20103787185 10/28/2010
Specific Equipment
Standard Parking Corporation IL
Bank of America Leasing & Capital, LLC
SOS Delaware
20111848129 05/17/2011
Specific Equipment
Standard Parking Corporation IL
Bank of America Leasing & Capital, LLC
SOS Delaware
20113972562 10/14/2011
Specific Equipment
Standard Parking Corporation IL
Bank of America Leasing & Capital, LLC
SOS Delaware
20114511229 11/23/2011
Specific Equipment
Standard Parking Corporation
Key Equipment Finance Inc.
SOS Delaware
43568237
12/17/2004
Specific Equipment
Standard Parking Corporation
Comdoc, Inc.
SOS Delaware
53587582
11/18/2005
Specific Equipment
Standard Parking Corporation
Key Equipment Finance Inc.
SOS Delaware
625624036 07/25/2006
Specific Equipment
Standard Parking Corporation
U.S. Bancorp Equipment Finance, Inc.
SOS Delaware
64568036
12/28/2006
Specific Equipment
Standard Parking Corporation
U.S. Bancorp Equipment
SOS Delaware
20073067385 08/13/2007
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien
Finance, Inc.
Standard Parking Corporation
VGM Financial Services A Division of TCF Equipment Finance, Inc.
SOS Delaware
20074113063 10/30/2007
Specific Equipment
Standard Parking Corporation
U.S. Bancorp Equipment Finance, Inc.
SOS Delaware
20082386264 07/11/2008
Specific Equipment
Standard Parking Corporation
U.S. Bancorp Equipment Finance, Inc.
SOS Delaware
20083426762 10/09/2008
Specific Equipment
Standard Parking Corporation
U.S. Bancorp Equipment Finance, Inc.
SOS Delaware
20091787578 06/05/2009
Specific Equipment
Standard Parking Corporation
U.S. Bancorp Equipment Finance, Inc.
SOS Delaware
20092209051 07/09/2009
Specific Equipment
Standard Parking Corporation
U.S. Bancorp Equipment Finance, Inc.
SOS Delaware
20092554381 08/10/2009
Specific Equipment
Standard Parking Corporation
U.S. Bancorp Equipment Finance, Inc.
SOS Delaware
20093789861 11/25/2009
Specific Equipment
Standard Parking Corporation
Key Equipment Finance Inc.
SOS Delaware
20094055643 12/18/2009
Specific Equipment
Standard Parking Corporation
Key Equipment Finance Inc.
SOS Delaware
20094056062 12/18/2009
Specific Equipment
Standard Parking Corporation
Key Equipment Finance Inc.
SOS Delaware
20094121924 12/23/2009
Specific Equipment
Standard Parking Corporation
Wells Fargo Financial Leasing, Inc.
SOS Delaware
20100007603 01/04/2010
Specific Equipment
Standard Parking Corporation
Key Equipment Finance Inc.
SOS Delaware
20100210058 01/21/2010
Specific Equipment
Standard Parking Corporation
U.S. Bancorp Equipment Finance, Inc.
SOS Delaware
20100397210 02/04/2010
Specific Equipment
Standard Parking Corporation
U.S. Bancorp Equipment Finance, Inc
SOS Delaware
20101886187 05/28/2010
Specific Equipment
Standard Parking Corporation
U.S. Bancorp Equipment Finance, Inc
SOS Delaware
20101886195 05/28/2010
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien Standard Parking Corporation
U.S. Bancorp Equipment Finance, Inc
SOS Delaware
20101886203 05/28/2010
Specific Equipment
Standard Parking Corporation
U.S. Bancorp Equipment Finance, Inc
SOS Delaware
20101886229 05/28/2010
Specific Equipment
Standard Parking Corporation
HERC Exchange, LLC
SOS Delaware
20102498255 07/19/2010
Specific Equipment
Standard Parking Corporation
U.S. Bancorp Equipment Finance, Inc
SOS Delaware
20110710619 02/25/2011
Specific Equipment
Standard Parking Corporation
U.S. Bancorp Equipment Finance, Inc
SOS Delaware
20111426504 04/15/2011
Specific Equipment
Standard Parking Corporation
Key Equipment Finance Inc.
SOS Delaware
20112278706 06/15/2011
Specific Equipment
Standard Parking Corporation
Key Equipment Finance Inc.
SOS Delaware
20112973900 08/02/2011
Specific Equipment
Standard Parking Corporation
Key Equipment Finance Inc.
SOS Delaware
20112974148 08/02/2011
Specific Equipment
Standard Parking Corporation
U.S. Bancorp Equipment Finance, Inc
SOS Delaware
20114369099 11/14/2011
Specific Equipment
Standard Parking Corporation
Key Equipment Finance Inc.
SOS Delaware
20114559798 11/30/2011
Specific Equipment
Standard Parking Corporation
Key Equipment Finance Inc.
SOS Delaware
20114561174 11/30/2011
Specific Equipment
Standard Parking Corporation
Key Equipment Finance Inc.
SOS Delaware
20114950245 12/23/2011
Specific Equipment
Standard Parking Corporation
Key Equipment Finance Inc.
SOS Delaware
20120878290 03/07/2012
Specific Equipment
Standard Parking Corporation
Key Equipment Finance Inc.
SOS Delaware
20120878308 03/07/2012
Specific Equipment
Standard Parking Corporation
Key Equipment Finance Inc.
SOS Delaware
20122944512 07/31/2012
Specific Equipment
Standard Parking Corporation
Key Equipment Finance Inc.
SOS Delaware
20122944801 07/31/2012
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
108-016505
4/7/08
Specific Equipment
Central Parking Corporation
MB Financial Bank, N.A.
SOS Tennessee
108-026393
7/25/08
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien Central Parking Corporation
MB Financial Bank, N.A.
SOS Tennessee
108-0263934
7/25/08
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
108-027717
8/15/08
Specific Equipment
Central Parking Corporation
FFCSI Fund II, LLC
SOS Tennessee
108-027727
8/15/08
Specific Equipment
Central Parking Corporation
FFCSI Fund I Corp.
SOS Tennessee
108-027738
8/15/08
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
110-023895
5/28/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
110-028591
6/29/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
110-028592
6/29/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
110-037133
8/30/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
111-015260
2/16/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
111-015261
2/16/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
111-015262
2/16/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
111-021127
4/21/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
111-026276
5/20/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
111-026277
5/20/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
111-026278
5/20/11
Specific Equipment
Central Parking First Financial
SOS Tennessee 111-037300
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien Corporation
Corporate Services, Inc. SOS Tennessee
7/29/11
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
111-040403
8/16/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
111-042978
10/31/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
111-042979
10/31/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
111-042980
10/31/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
111-043172
11/01/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
112-202956
1/24/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
112-203522
1/26/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
112-203528
1/26/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
112-203529
1/26/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
112-218839
6/08/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
112-218882
6/08/12
Specific Equipment
Central Parking Corporation
Rocky Mountain Bank & Trust
SOS Tennessee
203-060398
10/29/03
Specific Equipment
Central Parking Corporation
Somerset Capital Group, LTD
SOS Tennessee
207-056413
3/23/07
Specific Equipment
Central Parking Corporation
MB Financial Bank, N.A.
SOS Tennessee
208-015197
3/27/08
Specific Equipment
Central Parking Corporation
First Financial Corporate
SOS Tennessee
208-020496
4/29/08
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien
Services, Inc.
Central Parking Corporation
FFCSI Fund II, LLC
SOS Tennessee
208-020498
4/29/08
Specific Equipment
Central Parking Corporation
FFCSI Fund II, LLC
SOS Tennessee
208-022577
5/12/08
Specific Equipment
Central Parking Corporation
MB Financial Bank, N.A.
SOS Tennessee
208-038257
7/29/08
Specific Equipment
Central Parking Corporation
FFCI Fund I Corp.
SOS Tennessee
208-046937
9/18/08
Specific Equipment
Central Parking Corporation
Tokyo Leasing (USA) Inc.
SOS Tennessee
208-051020
10/10/08
Specific Equipment
Central Parking Corporation
FFCSI Fund III, LLC
SOS Tennessee
209-004686
1/27/09
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
209-007493
2/11/09
Specific Equipment
Central Parking Corporation
FFCSI Fund III, LLC
SOS Tennessee
209-009113
2/19/09
Specific Equipment
Central Parking Corporation
FFCSI Fund I Corp.
SOS Tennessee
209-009115
2/19/09
Specific Equipment
Central Parking Corporation
FFCSI Fund III, LLC
SOS Tennessee
209-009116
2/19/09
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
209-009117
2/19/09
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
209-009119
2/19/09
Specific Equipment
Central Parking Corporation
FFCSI Fund III, LLC
SOS Tennessee
209-017714
4/1/09
Specific Equipment
Central Parking Corporation
FFCSI Fund III, LLC
SOS Tennessee
209-017715
4/1/09
Specific Equipment
Central Parking Corporation
FFCSI Fund III, LLC
SOS Tennessee
209-017716
4/1/09
Specific Equipment
Central Parking Corporation
Neva Capital, LLC
SOS Tennessee
209-054499
11/3/09
Specific Equipment
Central Parking Corporation
FFCSI Fund IV, LLC
SOS Tennessee
209-056398
11/13/09
Specific Equipment
Central Parking Corporation
FFCSI Fund IV, LLC
SOS Tennessee
210-006305
1/11/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
210-014391
3/1/10
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
210-014392
3/1/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
210-033310
12/2/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
210-033311
12/2/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
210-033312
12/2/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
210-034627
12/20/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
210-034628
12/20/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
210-034691
12/20/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
210-034692
12/20/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
210-035097
12/20/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-056971
3/10/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-056972
3/10/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-056973
3/10/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-056974
3/10/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-057721
3/15/11
Specific Equipment
Central Parking First Financial
SOS Tennessee 211-057722
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien Corporation
Corporate Services, Inc.
3/15/11
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-057723
3/15/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-069528
7/6/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-069529
7/6/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-069530
7/6/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-069531
7/6/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-069533
7/6/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-072989
8/12/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-081494
10/7/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-081495
10/7/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-081511
10/7/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-082631
10/19/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-085571
11/14/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-087603
11/30/11
Specific Equipment
Central Parking Corporation
First Financial Corporate
SOS Tennessee
211-087604
11/30/11
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien
Services, Inc.
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-087605
11/30/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-087614
11/30/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-090947 12/19//11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
211-090949 12/19//11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-005467
2/2/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-006932
2/8/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-006933
2/8/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-009087
2/29/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-009088
2/29/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-009089
2/29/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-010559
3/9/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-010560
3/9/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-010561
3/9/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-023034
5/4/12
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-023048
5/4/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-023049
5/4/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-023050
5/4/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-023051
5/4/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-023052
5/4/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-023053
5/4/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-024729
5/11/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-024730
5/11/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-024731
5/11/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-024732
5/11/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-047891
8/17/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-047892
8/17/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-047893
8/17/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-047894
8/17/12
Specific Equipment
Central Parking First Financial
SOS Tennessee 212-047896
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien Corporation
Corporate Services, Inc.
8/17/12
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
212-047897
8/17/12
Specific Equipment
Central Parking Corporation
Amerimark Bank
SOS Tennessee
303-014683
3/17/03
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
308-055950
9/10/08
Specific Equipment
Central Parking Corporation
FFCSI Fund III, LLC
SOS Tennessee
309-004006
1/27/09
Specific Equipment
Central Parking Corporation
FFCSI Fund I Corp.
SOS Tennessee
309-004827
1/30/09
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
309-004828
1/30/09
Specific Equipment
Central Parking Corporation
FFCSI Fund III, LLC
SOS Tennessee
309-006352
2/11/09
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
309-006353
2/11/09
Specific Equipment
Central Parking Corporation
FFCSI Fund III, LLC
SOS Tennessee
309-049368
9/10/09
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
309-049728
9/11/09
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
309-050909
9/16/09
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
309-050933
9/16/09
Specific Equipment
Central Parking Corporation
FFCSI Fund III, LLC
SOS Tennessee
309-059899
11/2/09
Specific Equipment
Central Parking Corporation
FFCSI Fund IV, LLC
SOS Tennessee
309-061746
11/13/09
Specific Equipment
Central Parking Corporation
FFCSI Fund IV, LLC
SOS Tennessee
309-061747
11/13/09
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-004693
1/25/10
Specific Equipment
Central Parking First Financial
SOS Tennessee 310-008124
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien Corporation
Corporate Services, Inc.
2/11/10
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-008125
2/11/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-011346
3/1/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-015649
3/18/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-015650
3/18/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-018027
3/30/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-015650
3/18/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-027163
5/10/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-027164
5/10/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-027165
5/10/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-027166
5/10/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-027167
5/10/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-027168
5/10/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-029016
5/18/10
Specific Equipment
Central Parking Corporation
First Financial Corporate
SOS Tennessee
310-029018
5/18/10
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien
Services, Inc.
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-048092
8/16/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-048093
8/16/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-060266
10/12/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-060267
10/12/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-065579
11/10/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-065580
11/10/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-065581
11/10/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
310-072172
12/13/10
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
311-026795
4/28/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
311-036014
6/15/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
311-036020
6/15/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
311-048957
8/17/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
311-053809
9/8/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
311-056131
9/20/11
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
311-056161
9/20/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
311-064625
10/21/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
311-066594
11/2/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
311-066813
11/3/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
311-069186
11/16/11
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-302006
1/11/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-302007
1/11/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-302008
1/11/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-302546
1/13/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-303880
1/26/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-303882
1/26/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-306360
2/16/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-306364
2/16/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-306365
2/16/12
Specific Equipment
Central Parking First Financial
SOS Tennessee 312-306366
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien Corporation
Corporate Services, Inc.
2/16/12
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-307087
2/21/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-307095
2/21/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-307096
2/21/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-308835
2/28/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-308836
2/28/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-308837
2/28/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-309564
3/1/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-317340
4/9/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-317341
4/9/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-317342
4/9/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-317343
4/9/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-317344
4/9/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
312-317346
4/9/12
Specific Equipment
Central Parking Corporation
First Financial Corporate
SOS Tennessee
312-324692
5/21/12
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien
Services, Inc.
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
410-072579
12/14/12
Specific Equipment
Central Parking Corporation
First Financial Corporate Services, Inc.
SOS Tennessee
410-072580
12/14/12
Specific Equipment
Central Parking System of Georgia, Inc.
Tennant Financial Services
SOS Tennessee
202-065178
12/5/02
Specific Equipment
Central Parking System of Nebraska Inc.
US Bancorp
SOS Nebraska
9808417248-8
9/17/08
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
103-003959
2/20/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
103-003960
2/20/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
103-003961
2/20/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
103-003962
2/20/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
103-003963
2/20/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
103-003964
2/20/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
103-012537
4/11/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
103-012538
4/11/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
103-023635
6/4/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
103-032838
7/24/03
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
103-032839
7/24/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
103-042282
9/24/03
Specific Equipment
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
111-027581
6/1/11
Specific Equipment
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
111-027582
6/1/11
Specific Equipment
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
111-027583
6/1/11
Specific Equipment
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
111-027584
6/1/11
Specific Equipment
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
111-027585
6/1/11
Specific Equipment
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
111-027586
6/1/11
Specific Equipment
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
111-027587
6/1/11
Specific Equipment
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
111-027588
6/1/11
Specific Equipment
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
111-027589
6/1/11
Specific Equipment
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
111-027590
6/1/11
Specific Equipment
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
111-027591
6/1/11
Specific Equipment
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
111-027592
6/1/11
Specific Equipment
Central Parking Park Plus, Inc.
SOS Tennessee 111-027593
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien System of New York, Inc.
6/1/11
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
111-027594
6/1/11
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-011593
3/3/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-023655
5/22/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-023656
5/22/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-031298
7/02/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-032042
7/07/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-032043
7/07/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-032044
7/07/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-032045
7/07/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-033011
7/10/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-047737
9/10/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-048591
9/15/03
Specific Equipment
Central Parking System of New York, Inc.
Canon Financial Services
SOS Tennessee
210-030445
10/26/10
Specific Equipment
Central Parking System of New
Park Plus, Inc.
SOS Tennessee
211-065092
5/26/11
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien York, Inc.
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
211-065093
5/26/11
Specific Equipment
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
212-040756
7/25/12
Specific Equipment
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
212-040757
7/25/12
Specific Equipment
Central Parking System of New York, Inc.
Bank Leumi Leasing Corporation ; American Enterprise Leasing, Inc.; Park Plus Financial Services; Town & Country Leasing, LLC;
SOS Tennessee
302-054058 9/20/02
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
303-017195
3/27/03
Specific Equipment
Central Parking System of New York, Inc.
American Express Business Finance
SOS Tennessee
303-018514
4/1/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
303-036648
7/18/03
Specific Equipment
Central Parking System of Pennsylvania, Inc.
Tennant Financial Services
SOS Tennessee
105-015298
3/10/05
Specific Equipment
Central Parking System of Pennsylvania, Inc.
Inter-Tel Leasing Inc.
SOS Tennessee
308-046837
7/18/08
Specific Equipment
Central Parking System of Texas, Inc.
Mitel Leasing, Inc.
SOS Texas
10-0031462926
11/1/10
Specific Equipment
Central Parking System, Inc.
Tennant Financial
SOS Tennessee
103-006238
3/12/03
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien
Services
Central Parking System, Inc.
Tennant Financial Services
SOS Tennessee
103-014050
4/22/03
Specific Equipment
Central Parking System, Inc
General Electric Capital Corporation
SOS Tennessee
105-023883
4/15/05
Specific Equipment
Central Parking System, Inc
Pacific Rim Capital, Inc.; Park National Bank
SOS Tennessee
105-036494
8/30/05
Specific Equipment
Central Parking System, Inc
MB Financial Bank, N.A.
SOS Tennessee
107-058527
11/15/07
Specific Equipment
Central Parking System, Inc
Pacific Rim Capital, Inc.; Park National Bank
SOS Tennessee
205-022607
7/26/05
Specific Equipment
Central Parking System, Inc
Pacific Rim Capital, Inc.; Park National Bank
SOS Tennessee
205-026687
8/11/05
Specific Equipment
Central Parking System, Inc
MRK Leasing, Ltd.
SOS Tennessee
209-052742
10/26/09
Specific Equipment
Central Parking System, Inc
MRK Leasing, Ltd.
SOS Tennessee
209-052743
10/26/09
Specific Equipment
Central Parking System, Inc
Pacific Rim Capital, Inc.
SOS Tennessee
306-178142
12/12/06
Specific Equipment
National Garage, Incorporated
General Electric Capital Corporation
MI SOS
2003172898-6
9/11/03
Specific Equipment
USA Parking System, Inc.
CitiCapital Commercial Leasing Corporation
SOS Tennessee
207-086606
11/20/07
Specific Equipment
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
111-027590
6/1/11
Specific Equipment
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
111-027591
6/1/11
Specific Equipment
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
111-027592
6/1/11
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
111-027593
6/1/11
Specific Equipment
Central Parking System of New York, Inc.
Park Plus, Inc.
SOS Tennessee
111-027594
6/1/11
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-011593
3/3/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-023655
5/22/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-023656
5/22/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-031298
7/2/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-032042
7/7/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-032043
7/7/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-032044
7/7/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-032045
7/7/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-033011
7/10/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-047737
9/1/03
Specific Equipment
Central Parking System of New York, Inc.
General Electric Capital Corporation
SOS Tennessee
203-048591
9/15/03
Specific Equipment
Central Parking System of New York, Inc.
Canon Financial Services
SOS Tennessee
210-030445
10/26/10
Specific Equipment
Central Parking Park Plus, Inc.
SOS Tennessee 211-065092
Specific Equipment
Debtor Secured Party
Jurisdiction of
Filing
Filing Number and Date
Assets Subject to
Lien System of New York, Inc.
5/26/11
Standard Parking Corporation
U.S. Bank National Association
SOS Delaware
22390 4/7/00
Specific Equipment
Standard Parking Corporation
U.S. Bank National Association
SOS Delaware
50580952 2/11/05
Specific Equipment
APCOA Bradley Parking Company, LLC
U.S. Bank National Association
SOS Connecticut
0001988026
4/6/00
Specific Equipment
SCHEDULE 11.10
Investments Existing on the Closing Date
1. Investments consisting of the ownership of the Capital Securities listed on Schedule 9.8 as of the Closing Date.
SCHEDULE 11.15
Management Fees
1. Transactions permitted under Section 11.6 of the Credit Agreement.
EXHIBIT A-1
FORM OF REVOLVING NOTE
[Date]
The undersigned, for value received, promises to pay to or registered assigns (the “ Lender ”), in accordance
with the provisions of the Credit Agreement (as hereinafter defined), the aggregate unpaid amount of all Revolving Loans made to the undersigned by the Lender pursuant to the Credit Agreement referred to below.
The undersigned further promises to pay interest on the unpaid principal amount of each Revolving Loan from the date of such
Revolving Loan until such Revolving Loan is paid in full, payable at the rate(s) and at the time(s) set forth in the Credit Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement.
This Revolving Note evidences indebtedness incurred under, and is subject to the terms and provisions of, the Credit Agreement, dated
as of October 2, 2012 (as amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”; terms not otherwise defined herein are used herein as defined in the Credit Agreement), among the undersigned, certain financial institutions (including the Lender) and Bank of America, N.A., as Administrative Agent.
This Revolving Note is one of the Revolving Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be
prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Revolving Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Revolving Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Revolving Note and endorse thereon the date, amount and maturity of its Revolving Loans and payments with respect thereto.
The undersigned, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest,
demand, dishonor and nonpayment of this Revolving Note. This Revolving Note is made under and governed by the laws of the State of Illinois applicable to contracts made and to be performed
entirely within such State.
STANDARD PARKING CORPORATION
By:
Name:
Title:
EXHIBIT A-2
FORM OF SWING LINE NOTE
[Date]
The undersigned, for value received, promises to pay to BANK OF AMERICA, N.A. or registered assigns (the “ Swing Line Lender ” ),
in accordance with the provisions of the Credit Agreement (as hereinafter defined), the aggregate unpaid amount of all Swing Line Loans made to the undersigned by the Swing Line Lender pursuant to the Credit Agreement referred to below.
The undersigned further promises to pay interest on the unpaid principal amount of each Swing Line Loan from the date of such Swing
Line Loan until such Swing Line Loan is paid in full, payable at the rate(s) and at the time(s) set forth in the Credit Agreement. Payments of both principal and interest are to be made in lawful money of the United States of America. All payments of principal and interest shall be made to the Administrative Agent for the account of the Swing Line Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement.
This Swing Line Note evidences indebtedness incurred under, and is subject to the terms and provisions of, the Credit Agreement, dated
as of October 2, 2012 (as amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”; terms not otherwise defined herein are used herein as defined in the Credit Agreement), among the undersigned, certain financial institutions (including the Lender) and Bank of America, N.A., as Administrative Agent.
This Swing Line Note is the Swing Line Note referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Swing Line Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Swing Line Loans made by the Swing Line Lender shall be evidenced by one or more loan accounts or records maintained by the Swing Line Lender in the ordinary course of business. The Swing Line Lender may also attach schedules to this Swing Line Note and endorse thereon the date, amount and maturity of its Swing Line Loans and payments with respect thereto. The undersigned, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and nonpayment of this Swing Line Note.
This Swing Line Note is made under and governed by the laws of the State of Illinois applicable to contracts made and to be performed entirely within such State.
STANDARD PARKING CORPORATION
By:
Name:
Title:
EXHIBIT A-3
FORM OF TERM NOTE
[Date]
The undersigned, for value received, promises to pay to or registered assigns (the “ Lender ”), in accordance
with the provisions of the Credit Agreement (as hereinafter defined), the aggregate unpaid amount of the Term Loan made to the undersigned by the Lender pursuant to the Credit Agreement referred to below.
The undersigned further promises to pay interest on the unpaid principal amount of the Term Loan from the date of such Term Loan
until such Term Loan is paid in full, payable at the rate(s) and at the time(s) set forth in the Credit Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender, at the Administrative Agent’s Office, in Dollars in immediately available funds. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (before as well as after judgment) computed at the applicable per annum rate set forth in the Credit Agreement.
This Term Note evidences indebtedness incurred under, and is subject to the terms and provisions of, the Credit Agreement, dated as of
October 2, 2012 (as amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”; terms not otherwise defined herein are used herein as defined in the Credit Agreement), among the undersigned, certain financial institutions (including the Lender) and Bank of America, N.A., as Administrative Agent.
This Term Note is one of the Term Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in
whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Term Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. The Term Loan made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Term Note and endorse thereon the date, amount and maturity of the Term Loan and payments with respect thereto.
The undersigned, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest,
demand, dishonor and nonpayment of this Term Note. This Term Note is made under and governed by the laws of the State of Illinois applicable to contracts made and to be performed
entirely within such State.
STANDARD PARKING CORPORATION
By:
Name:
Title:
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
To: Bank of America, N.A., as Administrative Agent
Please refer to the Credit Agreement, dated as of October 2, 2012 (as amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”; terms not otherwise defined herein are used herein as defined in the Credit Agreement), among Standard Parking Corporation (the “ Company ”), the Lenders and Bank of America, N.A., as Administrative Agent. Capitalized terms used but not otherwise defined herein are used herein as defined in the Credit Agreement.
I . Reports . Enclosed herewith is a copy of the [annual audited/quarterly unaudited] report of the Company as at ,
(the “ Computation Date ”), which report fairly presents in all material respects the financial condition and results of operations [(subject to the absence of footnotes and to normal year-end adjustments)] of the Company as of the Computation Date and has been prepared in accordance with GAAP consistently applied.
II . Financial Tests . The Company hereby certifies and warrants to you that set forth on Schedule 1 hereto is a true and correct
computation as at the Computation Date of the following ratios and/or financial restrictions contained in the Credit Agreement: III . No Default . The Company further certifies to you that [no Event of Default or Unmatured Event of Default has occurred
and is continuing][the following is a list of each Event of Default or Unmatured Default that has occurred and is continuing and its nature and status, including the steps, if any, being taken to cure it:]
The Company has caused this Certificate to be executed and delivered by its Senior Officer on ,20 .
STANDARD PARKING CORPORATION
By:
Name:
Title:
EXHIBIT C
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this “ Assignment and Assumption ”) is dated as of the Effective Date set forth below and is entered into by and between [the][each] Assignor identified in item 1 below ([the][each, an] “ Assignor ”) and [the][each] Assignee identified in item 2 below ([the][each, an] “ Assignee ”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees] hereunder are several and not joint.] Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto in the amount[s] and equal to the percentage interest[s] identified below of all the outstanding rights and obligations under the respective facilities identified below (including, without limitation, the Letters of Credit and the Swing Line Loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “ Assigned Interest ”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.
1. Assignor[s] :
[Assignor [is] [is not] a Defaulting Lender] 2. Assignee[s] :
[for each Assignee, indicate [Affiliate][Approved Fund] of [ identify Lender ]] 3. Company : Standard Parking Corporation, a Delaware corporation
4. Administrative Agent : Bank of America, N.A., as the administrative agent under the Credit Agreement 5. Credit Agreement : Credit Agreement, dated as of October 2, 2012 (as amended, restated, supplemented or otherwise modified from
time to time, the “ Credit Agreement ”; terms not otherwise defined herein are used herein as defined in the Credit Agreement), among the Company, the Lenders and Bank of America, N.A., as Administrative Agent.
6. Assigned Interest[s] :
[7. Trade Date : ](7)
Effective Date: , 20 [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.] The terms set forth in this Assignment and Assumption are hereby agreed to:
(2) List each Assignor, as appropriate. (3) List each Assignee and, if available, its market entity identifier, as appropriate. (4) Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g. “Revolving Commitment”, “Term Loan Commitment”, etc.). (5) Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. (6) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. (7) To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.
Assignor[s](2) Assignee[s](3)
Facility
Assigned(4)
Aggregate Amount of
Commitment/ Loans
for all Lenders(5)
Amount of Commitment/
Loans Assigned
Percentage Assigned of
Commitment/ Loans(6)
CUSIP Number
$
$
%
$ $
%
$ $
%
ASSIGNOR[S]
[NAME OF ASSIGNOR]
By:
Name:
(8) To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. (9) To be added only if the consent of the Borrower and/or other parties (e.g. Swing Line Lender, Issuing Lender) is required by the terms of the Credit Agreement.
Title:
[NAME OF ASSIGNOR]
By:
Name:
Title:
ASSIGNEE[S]
[NAME OF ASSIGNEE]
By:
Name:
Title:
[NAME OF ASSIGNEE]
By:
Name:
Title:
[Consented to and](8) Accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
By:
Name:
Title:
[Consented to:](9)
[ ]
By:
Name:
Title:
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties . 1.1. Assignor . [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][[the
relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby, (iv) it [is] [is not] a Defaulting Lender and (v) it has reviewed the list of Competitors on Schedule 1.1(a) to the Credit Agreement and the Assignee is not a Competitor; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Company, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Company, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2. Assignee . [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 15.6 of the Credit Agreement (subject to such consents, if any, as may be required under Section 15.6 of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 10.1 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vii) it has reviewed the list of Competitors on Schedule 1.1(a) to the Credit Agreement and it is not a Competitor and (viii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2. Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each]
Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the
Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee.
3. General Provisions . Any assignment to a Competitor shall be void ab initio unless such assignment has been approved
by the Company. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of Illinois.
EXHIBIT D
FORM OF LOAN NOTICE
Date: , 20 [To: Bank of America, N.A., as Administrative Agent] [To: Bank of America, N.A., as Swing Line Lender
Cc: Bank of America, N.A., as Administrative Agent] Re: Credit Agreement dated as of October 2, 2012 (as amended, restated, supplemented or otherwise modified from time to time, the “
Credit Agreement ”) among Standard Parking Corporation (the “ Company ”), various financial institutions and Bank of America, N.A., as Administrative Agent. Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit Agreement.
Ladies and Gentlemen: The undersigned hereby requests (select one): � A Borrowing of [Revolving Loans][Swing Line Loans][Term Loan] � A conversion or continuation of [Revolving Loans][Term Loan] 1. On , 20 (which is a Business Day). 2. In the amount of $ . 3. Comprised of (Type of Loan requested). 4. For LIBOR Loans: with an Interest Period of months. The Company hereby represents and warrants that (a) after giving effect to any Borrowing of Revolving Loans or Swing Line Loans, (i) the Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations plus such Lender’s Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment and (b) all of the conditions contained in Section 12.2 of the Credit Agreement have been satisfied on and as of the date hereof, and will continue to be satisfied on and as of the date of the Borrowing, conversion or continuation requested hereby, before and after giving effect thereto.
STANDARD PARKING CORPORATION
By:
Name:
Title:
EXHIBIT E
CERTAIN CALCULATIONS
See attached.
EXHIBIT F
FORM OF ADMINISTRATIVE QUESTIONNAIRE
See attached.
Standard Parking Corporation
Financial Requirements at Close
Section 12.1.9 (000’s)
12.1.9 Total Debt to EBITDA Ratio; EBITDA
Section 12.1.10 (000’s)
Pro Forma Total Debt at close
Term Loan $ 250,000
per funds flow
Pro Forma Revolver 72,790
per funds flow
Other LT borrowings 1,748
at 6/30/12
Subordinated Convertible
Debentures 1,254
at 6/30/12
Total Debt $ 325,792
Fiscal Quarter Ended LTM Period Ended
9/30/2011
12/31/2011 3/31/2012
6/30/2012 6/30/2012
STAN earnings before income taxes
depreciation and amortization
$ 12,408 $ 8,453
$ 6,584 $ 9,900
$ 37,345
Central earnings before income taxes
depreciation and amortization 13,520
7,148 3,229
10,038 33,935
Non-cash stock compensation
411 727
361 502
2,001
Transaction costs 344
2,311 3,208
4,351 10,214
Subtotal
$ 26,683 $ 18,639
$ 13,382 $ 24,791
$ 83,495
PF Net Synergies (LTM) $ 5,700
LTM EBITDA
$ 89,195
12.1.9 (a) Total Debt to EBITDA Ratio
Total Debt $ 325,792
EBITDA
$ 89,195
Ratio 3.65 x
Maximum Condition
4.00 x
12.1.9 (b) EBITDA
LTM EBITDA $ 89,195
Minimum Condition
$ 82,000
12.1.10 Availability
Aggregate Revolving Commitments $ 200,000
less: Pro Forma Revolver draw
(72,790 ) Per above
less: Outstanding Letters of Credit (Standard) (17,823 ) at close
less: Outstanding Letters of Credit (Central)
(51,108 ) at close
Availability Under Credit Agreement $ 58,279
Unrestricted Cash (Standard)
9,055 at 6/30/12
Unrestricted Cash (Central)
52,755 at 6/30/12
Availability & Unrestricted Cash
$ 120,089
Minimum Condition
$ 50,000
ADMINISTRATIVE DETAILS REPLY FORM — (US DOLLAR ONLY ) CONFIDENTIAL
5. Credit Contact Information: Syndicate level information (which may contain material non-public information about the Borrower and its related parties or their respective securities will be made available to the Credit Contact(s). The Credit Contacts identified must be able to receive such information in accordance with his/her institution’s compliance procedures and applicable laws, including Federal and State securities laws.
05.2011
1
1. Borrower or Deal Name Standard Parking Corporation E-mail this document with your commitment letter to: Charlene Wright-Jones E-mail address of recipient: [email protected]
2. Legal Name of Lender of Record for Signature Page :
Markit Entity Identifier (MEI) #
Fund Manager Name (if applicable)
Legal Address from Tax Document of Lender of Record:
Country
Address
City
State/Province
Country
3. Domestic Funding Address:
4. Eurodollar Funding Address:
Street Address
Street Address
Suite/ Mail Code
Suite/ Mail Code
City
State
City State
Postal Code Country
Postal Code
Country
Primary Credit Contact: First Name
Middle Name
Last Name
Title
Street Address
Suite/Mail Code
City
State
Postal Code
Country
Office Telephone #
Office Facsimile #
Work E-Mail Address
IntraLinks/SyndTrak E-Mail Address
Secondary Credit Contact: First Name
Middle Name
Last Name
Title
Street Address
Suite/Mail Code
City
State
Postal Code
Country
Office Telephone #
Office Facsimile #
Work E-Mail Address
IntraLinks/SyndTrak
Does Secondary Operations Contact need copy of notices? � � � � YES � � � � NO
6. Lender’s Fed Wire Payment Instructions: Pay to:
7. Lender’s Standby Letter of Credit, Commercial Letter of Credit, and Bankers’ Acceptance Fed Wire Payment Instructions (if applicable): Pay to:
Can the Lender’s Fed Wire Payment Instructions in Section 6 be used? � YES � NO
Draft Documentation Contact or Legal Counsel: First
MI
Last
First
MI
Last
Title
Title
Street Address
Street Address
Suite/ Mail Code
Suite/ Mail Code
City
State
City
State
Postal Code
Country
Postal Code
Country
Telephone
Facsimile
Telephone
Facsimile
E-Mail Address
E-Mail Address
Bank Name
ABA #
City State
Account #
Account Name
Attention
Bank Name
ABA #
City State
Account #
Account Name
Attention
8. Lender’s Organizational Structure and Tax Status Please refer to the enclosed withholding tax instructions below and then complete this section accordingly: Lender Taxpayer Identification Number (TIN): ___ ___ - ___ ___ ___ ___ ___ ___ Tax Withholding Form Delivered to Bank of America (check applicable one):
NON—U.S. LENDER INSTITUTIONS 1. Corporations: If your institution is incorporated outside of the United States for U.S. federal income tax purposes, and is the beneficial owner of the interest and other income it receives, you must complete one of the following three tax forms, as applicable to your institution: a.) Form W-8BEN (Certificate of Foreign Status of Beneficial Owner), b.) Form W-8ECI (Income Effectively Connected to a U.S. Trade or Business), or c.) Form W-8EXP (Certificate of Foreign Government or Governmental Agency). A U.S. taxpayer identification number is required for any institution submitting a Form W-8 ECI. It is also required on Form W-8BEN for certain institutions claiming the benefits of a tax treaty with the U.S. Please refer to the instructions when completing the form applicable to your institution. In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms. An original tax form must be submitted. 2. Flow-Through Entities If your institution is organized outside the U.S., and is classified for U.S. federal income tax purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-U.S. flow-through entity, an original Form W-8IMY (Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. branches for United States Tax Withholding) must be completed by the intermediary together with a withholding statement. Flow-through entities other than Qualified Intermediaries are required to include tax forms for each of the underlying beneficial owners. Please refer to the instructions when completing this form. In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms. Original tax form(s) must be submitted . U.S. LENDER INSTITUTIONS: If your institution is incorporated or organized within the United States, you must complete and return Form W-9 (Request for Taxpayer Identification Number and Certification). Please be advised that we require an original form W-9 . Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax form for your institution must be completed and returned on or prior to the date on which your institution becomes a lender under this Credit Agreement. Failure to provide the proper tax form when requested will subject your institution to U.S. tax withholding.
3
� � � � W-9 � � � � W-8BEN
� � � � W-8ECI � � � � W-8EXP
� � � � W-8IMY
Tax Contact:
First
MI
Last
Title
Street Address
Suite/ Mail Code
City
State
Postal Code
Country
Telephone
Facsimile
E-Mail Address
*Additional guidance and instructions as to where to submit this documentation can be found at this link: 9. Bank of America’s Payment Instructions:
4
Pay to: Bank of America, N.A.
ABA #
Dallas, TX-Servicing Site
Acct#
Attn: Corporate Credit Services
Ref: Standard Parking Corporation
Exhibit 10.4
This Confirmation supersedes and replaces any and all Confirmations previously sent to you in respect of this Transaction.
Dear Sir/Madam, The purpose of this letter agreement is to confirm the terms and conditions of the Transaction entered into between Standard Parking Corp and Bank of America, N.A. (each a “party” and together “the parties”) on the Trade Date specified below (the “Transaction”). This letter agreement constitutes a “Confirmation” as referred to in the ISDA Master Agreement specified below (the “Agreement”). The definitions and provisions contained in the 2006 ISDA Definitions, as published by the International Swaps and Derivatives Association, Inc., (the “Definitions”) are incorporated into this Confirmation. In the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will govern. This Confirmation supplements, forms part of, and is subject to, the ISDA Master Agreement dated as of 16th October 2012, as amended and supplemented from time to time, between the parties. All provisions contained in the Agreement govern this Confirmation except as expressly modified
To: Standard Parking Corp
900 N Michigan Ave Ste 1600
Chicago, IL 606116539
United States
Attn: Marc Baumann
Telephone: 312 274 2193
Fax: 312 640 8203
From: Bank of America, N.A.
200 N College Street
Charlotte, North Carolina 28255-0001
U.S.A.
Department: Swaps Operations
Telephone: (+1) 980 683 2797
Fax: (+1) 866 255 1444
Date: 25th October 2012
Our Reference No:
60668607 Reference Name:
Tim Coleman Internal Tracking No:
60668607 Admin No:
12BN187939
below. In this Confirmation “Party A” means Bank of America, N.A. and “Party B” means Standard Parking Corp. General Terms: The terms of the particular Transaction to which this Confirmation relates are as follows:
Fixed Amounts:
Floating Amounts:
Notional Amount: As per Schedule A below.
Trade Date:
25th October 2012 Effective Date:
31st October 2012 Termination Date:
30th September 2017 , subject to adjustment in accordance with the Modified Following Business Day Convention
Fixed Rate Payer: Party B
Fixed Rate Payer Payment Dates:
The last calendar day of each Month, commencing on the last calendar day of November 2012 and ending on the Termination Date, subject to adjustment in accordance with the Preceding Business Day Convention
Fixed Rate:
0.75250 per cent Fixed Rate Day Count Fraction:
Actual/360
Floating Rate Payer: Party A
Floating Rate Payer Payment Dates:
The last calendar day of each Month, commencing on the last calendar day of November 2012 and ending on the Termination Date, subject to adjustment in accordance with the Preceding Business Day Convention
Recording of Conversations:
Each party to this Transaction acknowledges and agrees to the recording of conversations between trading and marketing personnel of the parties to this Transaction whether by one or other or both of the parties or their agents.
Account Details: As advised under separate cover with reference to this Confirmation, each party shall provide appropriate payment instructions to the other party in writing and such instructions shall be deemed to be incorporated into this Confirmation.
Floating Rate for initial Calculation Period:
To be determined
Floating Rate Option:
USD-LIBOR-BBA Designated Maturity:
1 Month Spread:
None Floating Rate Day
Count Fraction: Actual/360
Reset Dates:
First day of each Calculation Period
Business Days: London and New York
Calculation Agent:
Party A
Offices:
The Office of Party A for this Transaction is:
Charlotte - NC, United States
Please send reset notices to fax no. (+1) 866 218 8487 The Office of Party B for this
SCHEDULE A
Transaction is: Chicago - IL, United States
Calculation Period
(from but excluding and to and including) Notional Amount (USD):
31 October 2012
to 30 November 2012
50,000,000.00
30 November 2012 to
31 December 2012 50,000,000.00
31 December 2012
to 31 January 2013
48,875,000.00
31 January 2013 to
28 February 2013 48,875,000.00
28 February 2013
to 28 March 2013
48,875,000.00
28 March 2013 to
30 April 2013 47,750,000.00
30 April 2013
to 31 May 2013
47,750,000.00
31 May 2013 to
28 June 2013 47,750,000.00
28 June 2013
to 31 July 2013
46,625,000.00
31 July 2013 to
30 August 2013 46,625,000.00
30 August 2013
to 30 September 2013
46,625,000.00
30 September 2013 to
31 October 2013 45,500,000.00
31 October 2013
to 29 November 2013
45,500,000.00
29 November 2013 to
31 December 2013 45,500,000.00
31 December 2013
to 31 January 2014
44,375,000.00
31 January 2014 to
28 February 2014 44,375,000.00
28 February 2014
to 31 March 2014
44,375,000.00
31 March 2014 to
30 April 2014 43,250,000.00
30 April 2014
to 30 May 2014
43,250,000.00
30 May 2014 to
30 June 2014 43,250,000.00
30 June 2014
to 31 July 2014
42,125,000.00
31 July 2014 to
29 August 2014 42,125,000.00
29 August 2014
to 30 September 2014
42,125,000.00
30 September 2014 to
31 October 2014 41,000,000.00
31 October 2014
to 28 November 2014
41,000,000.00
28 November 2014 to
31 December 2014 41,000,000.00
31 December 2014
to 30 January 2015
39,500,000.00
30 January 2015 to
27 February 2015 39,500,000.00
27 February 2015
to 31 March 2015
39,500,000.00
31 March 2015 to
30 April 2015 38,000,000.00
30 April 2015
to 29 May 2015
38,000,000.00
29 May 2015 to
30 June 2015 38,000,000.00
30 June 2015
to 31 July 2015
36,500,000.00
31 July 2015 to
28 August 2015 36,500,000.00
28 August 2015
to 30 September 2015
36,500,000.00
30 September 2015 to
30 October 2015 35,000,000.00
30 October 2015
to 30 November 2015
35,000,000.00
30 November 2015 to
31 December 2015 35,000,000.00
31 December 2015 to
29 January 2016 33,500,000.00
29 January 2016
to 29 February 2016
33,500,000.00
29 February 2016 to
31 March 2016 33,500,000.00
31 March 2016
to 29 April 2016
32,000,000.00
29 April 2016 to
31 May 2016 32,000,000.00
31 May 2016
to 30 June 2016
32,000,000.00
30 June 2016 to
29 July 2016 30,500,000.00
29 July 2016
to 31 August 2016
30,500,000.00
31 August 2016 to
30 September 2016 30,500,000.00
30 September 2016
to 31 October 2016
29,000,000.00
31 October 2016 to
30 November 2016 29,000,000.00
30 November 2016
to 30 December 2016
29,000,000.00
30 December 2016 to
31 January 2017 27,125,000.00
31 January 2017
to 28 February 2017
27,125,000.00
28 February 2017 to
31 March 2017 27,125,000.00
31 March 2017
to 28 April 2017
25,250,000.00
28 April 2017 to
31 May 2017 25,250,000.00
31 May 2017
to 30 June 2017
25,250,000.00
30 June 2017 to
31 July 2017 23,375,000.00
31 July 2017
to 31 August 2017
23,375,000.00
31 August 2017 to
29 September 2017 23,375,000.00
Please confirm that the foregoing correctly sets forth the terms and conditions of our agreement by returning via telecopier an executed copy of this Confirmation in its entirety to the attention of Global FX and Derivative Operations (fax no.(+1) 866 255 1444).
Accepted and confirmed as of the date first written:
Bank of America, N.A. Standard Parking Corp
By: /s/ Katherine A. Andrews
Name: Katherine A. Andrews
Title: Managing Director, Sr. Group Operations Manager
Authorised Signatory By: /s/ Marc Baumann
Name: G. Marc Baumann
Title: Chief Financial Officer, Treasurer & President of Urban Operations
Our Reference Number: 60668607
Amended
Exhibit 10.5
Interest Rate Swap Transaction (REVISION)
The purpose of this letter agreement is to confirm the amendment of the terms and conditions of the Transaction entered into between:
JPMORGAN CHASE BANK, N.A. (“JPMorgan”)
and
STANDARD PARKING CORPORATION
(the “Counterparty”)
on the Trade Date and identified by the JPMorgan Deal Number specified below (the “Transaction”). This letter agreement constitutes a “Confirmation” as referred to in the Master Agreement specified below, and supersedes any previous confirmation or other writing with respect to the transaction described below. The definitions and provisions contained in the 2006 ISDA Definitions (the “Definitions”), as published by the International Swaps and Derivatives Association, Inc. are incorporated into this Confirmation. In the event of any inconsistency between those definitions and provisions and this Confirmation, this Confirmation will govern. This Confirmation supplements, forms part of, and is subject to, the Interest Rate and Currency Exchange Agreement dated as of 24 October 2012, as amended and supplemented from time to time (the “Agreement”), between JPMORGAN CHASE BANK, N.A. (“JPMorgan”) and STANDARD PARKING CORPORATION (the “Counterparty”). All provisions contained in the Agreement govern this Confirmation except as expressly modified below.
1
The terms of the particular Interest Rate Swap Transaction to which this Confirmation relates are as follows:
2
A. TRANSACTION DETAILS
JPMorgan Deal Number(s):
6901000199694 / 0N175517102 Notional Amount:
As set forth in the Notional Amount Schedule hereto Trade Date:
25 October 2012 Effective Date:
31 October 2012 Termination Date:
30 September 2017 subject to adjustment in accordance with the Modified Following Business Day Convention.
Fixed Amounts:
Fixed Rate Payer:
Counterparty Fixed Rate Payer Payment Dates:
The last day of each November, December, January, February, March, April, May, June, July, August, September and October in each year, from and including 30 November 2012 to and including the Termination Date, subject to adjustment in accordance with the Modified Following Business Day Convention and there will be an adjustment to the Calculation Period.
Fixed Rate:
0.75250 percent Fixed Rate Day Count Fraction:
Actual/360 Business Days:
London, New York Floating Amounts:
Floating Rate Payer:
JPMorgan Floating Rate Payer Payment Dates:
The last day of each November, December, January, February, March, April, May, June, July, August, September and October in each year, from and including 30 November 2012 to and including the Termination Date, subject to adjustment in accordance with the Modified Following Business Day
MAINTENANCE OF HEDGE Counterparty hereby agrees that at all times until the termination of this Transaction it shall maintain outstanding obligations in respect of borrowed money in an amount equal to or greater than the Notional Amount. Notional Amount Schedule:
3
Convention and there will be an adjustment to the Calculation Period.
Floating Rate for initial Calculation Period:
To be determined Floating Rate Option:
USD-LIBOR-BBA Designated Maturity:
1 Month Spread:
None Floating Rate Day Count Fraction:
Actual/360 Reset Dates:
The first day of each Calculation Period. Compounding:
Inapplicable Business Days:
London, New York Calculation Agent:
JPMorgan, unless otherwise stated in the Agreement.
From and Including* To but Excluding*
Notional Amount:
31 October 2012 30 November 2012
USD 50,000,000.00
30 November 2012 31 December 2012
USD 50,000,000.00
31 December 2012 31 January 2013
USD 48,875,000.00
31 January 2013 28 February 2013
USD 48,875,000.00
28 February 2013 28 March 2013
USD 48,875,000.00
28 March 2013 30 April 2013
USD 47,750,000.00
30 April 2013 31 May 2013
USD 47,750,000.00
31 May 2013 28 June 2013
USD 47,750,000.00
28 June 2013 31 July 2013
USD 46,625,000.00
31 July 2013 30 August 2013
USD 46,625,000.00
30 August 2013 30 September 2013
USD 46,625,000.00
30 September 2013 31 October 2013
USD 45,500,000.00
31 October 2013 29 November 2013
USD 45,500,000.00
29 November 2013 31 December 2013
USD 45,500,000.00
31 December 2013 31 January 2014
USD 44,375,000.00
31 January 2014 28 February 2014
USD 44,375,000.00
28 February 2014 31 March 2014
USD 44,375,000.00
31 March 2014 30 April 2014
USD 43,250,000.00
30 April 2014 30 May 2014
USD 43,250,000.00
30 May 2014 30 June 2014
USD 43,250,000.00
30 June 2014 31 July 2014
USD 42,125,000.00
*Subject to adjustment in accordance with the Modified Following Business Day Convention
4
31 July 2014 29 August 2014
USD 42,125,000.00
29 August 2014 30 September 2014
USD 42,125,000.00
30 September 2014 31 October 2014
USD 41,000,000.00
31 October 2014 28 November 2014
USD 41,000,000.00
28 November 2014 31 December 2014
USD 41,000,000.00
31 December 2014 30 January 2015
USD 39,500,000.00
30 January 2015 27 February 2015
USD 39,500,000.00
27 February 2015 31 March 2015
USD 39,500,000.00
31 March 2015 30 April 2015
USD 38,000,000.00
30 April 2015 29 May 2015
USD 38,000,000.00
29 May 2015 30 June 2015
USD 38,000,000.00
30 June 2015 31 July 2015
USD 36,500,000.00
31 July 2015 28 August 2015
USD 36,500,000.00
28 August 2015 30 September 2015
USD 36,500,000.00
30 September 2015 30 October 2015
USD 35,000,000.00
30 October 2015 30 November 2015
USD 35,000,000.00
30 November 2015 31 December 2015
USD 35,000,000.00
31 December 2015 29 January 2016
USD 33,500,000.00
29 January 2016 29 February 2016
USD 33,500,000.00
29 February 2016 31 March 2016
USD 33,500,000.00
31 March 2016 29 April 2016
USD 32,000,000.00
29 April 2016 31 May 2016
USD 32,000,000.00
31 May 2016 30 June 2016
USD 32,000,000.00
30 June 2016 29 July 2016
USD 30,500,000.00
29 July 2016 31 August 2016
USD 30,500,000.00
31 August 2016 30 September 2016
USD 30,500,000.00
30 September 2016 31 October 2016
USD 29,000,000.00
31 October 2016 30 November 2016
USD 29,000,000.00
30 November 2016 30 December 2016
USD 29,000,000.00
30 December 2016 31 January 2017
USD 27,125,000.00
31 January 2017 28 February 2017
USD 27,125,000.00
28 February 2017 31 March 2017
USD 27,125,000.00
31 March 2017 28 April 2017
USD 25,250,000.00
28 April 2017 31 May 2017
USD 25,250,000.00
31 May 2017 30 June 2017
USD 25,250,000.00
30 June 2017 31 July 2017
USD 23,375,000.00
31 July 2017 31 August 2017
USD 23,375,000.00
31 August 2017 29 September 2017
USD 23,375,000.00
B. ACCOUNT DETAILS
Payments to JPMorgan in USD:
JPMORGAN CHASE BANK, N.A.
BIC: CHASUS33XXX
A/C No: 099997979
JPMORGAN CHASE BANK, NATL ASSO, NEW YORK
BIC: CHASUS33XXX
D. DOCUMENTS TO BE DELIVERED Each party shall deliver to the other, at the time of its execution of this Confirmation, evidence of the incumbency and specimen signature of the person(s) executing this Confirmation, unless such evidence has been previously supplied and remains true and in effect. E. RELATIONSHIP BETWEEN PARTIES Each party will be deemed to represent to the other party on the date on which it enters into a Transaction that (absent a written agreement between the parties that expressly imposes affirmative obligations to the contrary for that Transaction): (a) Non-Reliance. It is acting for its own account, and it has made its own independent decisions to enter into that Transaction and as to whether that Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into that Transaction; it being understood that information and explanations related to the terms and conditions of a Transaction shall not be considered investment advice or a recommendation to enter into that Transaction. No communication (written or oral) received from the other party shall be deemed to be an assurance or guarantee as to the expected results of that Transaction. (b) Assessment and Understanding. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of that Transaction. It is capable of assuming, and assumes the risks of that Transaction. (c) Status of Parties. The other party is not acting as a fiduciary for or an adviser to it in respect of that Transaction.
5
Payments to Counterparty in USD: As per your standard settlement instructions. C. OFFICES
JPMorgan: NEW YORK Counterparty: CHICAGO
Please confirm that the foregoing correctly sets forth the terms of our agreement by executing a copy of this Confirmation and returning it to us or by sending to us a letter, telex or facsimile substantially similar to this letter, which letter, telex or facsimile sets forth the material terms of the Transaction to which this Confirmation relates and indicates agreement to those terms. When referring to this Confirmation, please indicate: JPMorgan Deal Number(s): 6901000199694 / 0N175517102
6
JPMorgan Chase Bank, N.A.
/s/ Carmine Pilla
Name: Carmine Pilla
Title: Executive Director
Accepted and confirmed as of the date
first written:
STANDARD PARKING CORPORATION
/s/ G. Marc Baumann
Name: G. Marc Baumann
Title: Chief Financial Officer, Treasurer & President of Urban
Operations
Your reference number:
Client Service Group All queries regarding confirmations should be sent to: JPMorgan Chase Bank, N.A.
Please quote the JPMorgan deal number(s): 6901000199694 / 0N175517102.
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Contacts
JPMorgan Contact Telephone Number Client Service Group
The purpose of this letter agreement is to confirm the terms and conditions of the Interest Rate Swap transaction (the “Transaction”) entered into between STANDARD PARKING CORP (“COUNTERPARTY”) and PNC Bank, National Association (“PNC”) on the Trade Date specified below. By signing below, COUNTERPARTY acknowledges that it has consented to receive this Confirmation via electronic mail.
STANDARD PARKING CORP 900 N MICHIGAN AVE STE 1600 CHICAGO IL 60611
Reference #: MX_39586 - Confirmation of Interest Rate Swap Transaction as of October 25, 2012, between STANDARD PARKING CORP and PNC Bank, National Association.
1. The definitions and provisions contained in the 2006 ISDA Definitions (as published by the International Swaps and Derivatives Association, Inc.) and any addenda or revisions thereto, are incorporated into this Confirmation. In the event of any inconsistency between those definitions and provisions and this Confirmation, this Confirmation will govern.
2. This Confirmation constitutes a “Confirmation” as referred to in, and supplements, forms part of and is subject to, that certain ISDA
Master Agreement and related Schedule between COUNTERPARTY and PNC, dated as of October 24, 2012 (as amended, modified, renewed or restated from time to time, the “ISDA Master Agreement”). All provisions contained in or incorporated by reference in such ISDA Master Agreement shall govern this Confirmation, except as modified expressly below. In the event of any inconsistency between the provisions of such ISDA Master Agreement and this Confirmation, this Confirmation will govern for purposes of the Transaction.
3. Each party represents to the other party that:
(a) It is acting for its own account as principal, and it has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary to permit it to evaluate the merits and risks of the Transaction. It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into the Transaction; it being understood that information and explanations related to the terms and conditions of the Transaction shall not be considered investment advice or a recommendation to enter into the Transaction. No communication (written or oral) received from the other party shall be deemed to be an assurance or guarantee as to the expected results of the Transaction.
(b) It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of the Transaction. It is also capable of assuming, and assumes, the risks of the Transaction.
(c) The other party is not acting as a fiduciary for or an adviser to it in respect of the Transaction.
(d) It has entered into the Transaction in connection with a line of its business and for purposes of hedging and not for the purpose of speculation.
2
4. The terms of the Transaction to which this Confirmation relates are as follows:
Type Of Transaction:
Interest Rate Swap
Notional Amount:
Initially USD 50,000,000.00 and then adjusting in accordance to attached amortization schedule.
Trade Date:
October 25, 2012
Effective Date:
October 31, 2012
Termination Date:
September 30, 2017, subject to adjustment in accordance with the Modified Following Business Day Convention.
Fixed Amounts:
Fixed Rate Payer:
COUNTERPARTY
Fixed Rate Calculation Periods:
The initial Calculation Period will be from and including the Effective Date to but excluding November 30, 2012. Thereafter, from and including the last day of each month to but excluding the last day of the following month. With the final Calculation Period being from and including August 31, 2017, to but excluding the Termination Date. Each calculation period subject to adjustment in accordance with the Modified Following Business Day Convention.
Fixed Rate Payer Payment Dates:
The initial payment will commence on November 30, 2012, and thereafter on the last day of each month, and ending on the Termination Date, subject to adjustment in accordance with the Modified Following Business Day Convention.
Fixed Rate:
0.7525%
Fixed Rate Day Count Fraction:
ACT/360
Business Days:
New York and London
Floating Amounts:
Floating Rate Payer:
PNC
Floating Rate Calculation Periods:
The initial Calculation Period will be from and including the Effective Date to but excluding November 30, 2012. Thereafter, from and including the last day of each month to but excluding the last day of the following month. With the final Calculation Period being from and including August 31, 2017, to but excluding the Termination Date. Each calculation period subject to adjustment in accordance with the Modified Following Business Day Convention.
Floating Rate Payer Payment Dates:
The initial payment will commence on November 30, 2012, and thereafter on the last day of each month, and ending on the Termination Date, subject to adjustment in accordance with the Modified Following Business Day Convention.
Floating Rate for Initial Calculation Period:
TBD
Payment Instructions:
Payments to PNC shall be made in immediately available funds to:
3
Reset Dates:
The first day of each Floating Rate Calculation Period, with Period End Dates subject to adjustment in accordance with the Modified Following Business Day Convention.
Floating Rate Option:
USD-LIBOR-BBA-Bloomberg; provided, however, that the reference to “London Banking Days” that appears in the 4th line of the definition of “USD-LIBOR-BBA-Bloomberg” is replaced with “New York and London Banking Days” (which for purposes of the Transaction means any day other than a Saturday or Sunday or a legal holiday on which commercial banks are authorized or required by law to be closed for business in New York, New York and London, England).
Designated Maturity:
One (1) Month
Spread:
Inapplicable
Floating Rate Day Count Fraction:
ACT/360
Business Days:
New York and London
Compounding:
Inapplicable
General Terms:
Calculation Agent: PNC
Jury Waiver:
EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS CONFIRMATION OR THE TRANSACTION EVIDENCED HEREBY.
Governing Law:
The Transaction shall be governed by and construed in accordance with the laws of the State of New York, without reference to the choice of law doctrine.
Execution in Counterparts:
This Confirmation may be executed in counterparts, each of which shall be an original and both of which when taken together shall constitute the same agreement. Transmission by facsimile, e-mail or other form of electronic transmission of an executed counterpart of this Confirmation shall be deemed to constitute due and sufficient delivery of such counterpart.
Electronic Records and Signatures:
It is agreed by the parties that the use of electronic signatures and the keeping of records in electronic form be granted the same legal effect, validity and enforceability as a signature affixed by hand or the use of a paper-based record keeping system (as the case may be) to the extent and as provided for in any applicable law.
Bank Name:
ABA# :
Payments to STANDARD PARKING CORP shall be made in immediately available funds to:
OR: I hereby Authorize PNC Bank to deposit or withdraw any amounts owed to me or by me by initiating credit or debit entries to my account at the Financial Institution indicated below. Further, I authorize my Financial Institution to accept and to credit or debit any entries initiated by PNC Bank to my account. In the event that PNC Bank deposits funds erroneously into my account, I authorize PNC Bank to debit my account for an amount not to exceed the original amount of the credit.
ABA Routing #: Account #:
This authorization is to remain in full force and effect until PNC Bank and/or my Financial Institution has received written notice from me of its termination in such time and in such manner as to afford PNC Bank and/or my Financial Institution a reasonable opportunity to act on it. PAYMENT ADVICE NOTIFICATION SHALL BE DELIVERED VIA E-MAIL TO THE FOLLOWING ADDRESS(ES): E-Mail Address(es): Please confirm that the foregoing correctly sets forth the terms of our agreement concerning the transaction by signing this Confirmation where indicated below and returning a signed copy to Patrick Kertes either by fax (at + 1 855 568 4533) or by overnight delivery (c/o PNC Bank, National Association, 116 Allegheny Center Mall, P8-YB35-02-8, Pittsburgh, PA 15212, Attn: Patrick Kertes). Should you wish to return your signed copy by e-mail, please, first contact your derivatives marketer. Please retain a signed copy of this Confirmation for your records. Should you have any questions, please call Patrick Kertes at (412) 237-0568.
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Account# :
Account Of :
Attention :
Bank Name: ABA# : Account# : Account Of : Attention :
Bank Name City
State
Account Type: � Checking Or � Savings
� Corporate Or � Individual
5
Yours Sincerely,
Accepted and agreed as of the date first above written: PNC BANK, NATIONAL ASSOCIATION
STANDARD PARKING CORP
By: /s/ Amber Evanco
By: /s/ Marc Baumann
Name: Amber Evanco
Name: G. Marc Baumann Title: Vice President
Title: Chief Financial Officer, Treasurer & President of Urban
Operations
AMORTIZATION SCHEDULE
6
Calculation Period Calculation Period
Notional End of Period
Start Date
End Date Balance
Amortization
October 31, 2012 November 30, 2012
$ 50,000,000.00 $ 0.00
November 30, 2012
December 31, 2012 $ 50,000,000.00
$ 1,125,000.00
December 31, 2012 January 31, 2013
$ 48,875,000.00 $ 0.00
January 31, 2013
February 28, 2013 $ 48,875,000.00
$ 0.00
February 28, 2013 March 28, 2013
$ 48,875,000.00 $ 1,125,000.00
March 28, 2013
April 30, 2013 $ 47,750,000.00
$ 0.00
April 30, 2013 May 31, 2013
$ 47,750,000.00 $ 0.00
May 31, 2013
June 28, 2013 $ 47,750,000.00
$ 1,125,000.00
June 28, 2013 July 31, 2013
$ 46,625,000.00 $ 0.00
July 31, 2013
August 30, 2013 $ 46,625,000.00
$ 0.00
August 30, 2013 September 30, 2013
$ 46,625,000.00 $ 1,125,000.00
September 30, 2013
October 31, 2013 $ 45,500,000.00
$ 0.00
October 31, 2013 November 29, 2013
$ 45,500,000.00 $ 0.00
November 29, 2013
December 31, 2013 $ 45,500,000.00
$ 1,125,000.00
December 31, 2013 January 31, 2014
$ 44,375,000.00 $ 0.00
January 31, 2014
February 28, 2014 $ 44,375,000.00
$ 0.00
February 28, 2014 March 31, 2014
$ 44,375,000.00 $ 1,125,000.00
March 31, 2014
April 30, 2014 $ 43,250,000.00
$ 0.00
April 30, 2014 May 30, 2014
$ 43,250,000.00 $ 0.00
May 30, 2014
June 30, 2014 $ 43,250,000.00
$ 1,125,000.00
June 30, 2014 July 31, 2014
$ 42,125,000.00 $ 0.00
July 31, 2014
August 29, 2014 $ 42,125,000.00
$ 0.00
August 29, 2014 September 30, 2014
$ 42,125,000.00 $ 1,125,000.00
September 30, 2014
October 31, 2014 $ 41,000,000.00
$ 0.00
October 31, 2014 November 28, 2014
$ 41,000,000.00 $ 0.00
November 28, 2014
December 31, 2014 $ 41,000,000.00
$ 1,500,000.00
December 31, 2014 January 30, 2015
$ 39,500,000.00 $ 0.00
January 30, 2015
February 27, 2015 $ 39,500,000.00
$ 0.00
February 27, 2015 March 31, 2015
$ 39,500,000.00 $ 1,500,000.00
March 31, 2015
April 30, 2015 $ 38,000,000.00
$ 0.00
April 30, 2015 May 29, 2015
$ 38,000,000.00 $ 0.00
May 29, 2015
June 30, 2015 $ 38,000,000.00
$ 1,500,000.00
June 30, 2015 July 31, 2015
$ 36,500,000.00 $ 0.00
July 31, 2015
August 28, 2015 $ 36,500,000.00
$ 0.00
August 28, 2015 September 30, 2015
$ 36,500,000.00 $ 1,500,000.00
September 30, 2015
October 30, 2015 $ 35,000,000.00
$ 0.00
October 30, 2015 November 30, 2015
$ 35,000,000.00 $ 0.00
November 30, 2015
December 31, 2015 $ 35,000,000.00
$ 1,500,000.00
December 31, 2015 January 29, 2016
$ 33,500,000.00 $ 0.00
January 29, 2016
February 29, 2016 $ 33,500,000.00
$ 0.00
February 29, 2016 March 31, 2016
$ 33,500,000.00 $ 1,500,000.00
March 31, 2016
April 29, 2016 $ 32,000,000.00
$ 0.00
April 29, 2016 May 31, 2016
$ 32,000,000.00 $ 0.00
May 31, 2016
June 30, 2016 $ 32,000,000.00
$ 1,500,000.00
June 30, 2016 July 29, 2016
$ 30,500,000.00 $ 0.00
July 29, 2016
August 31, 2016 $ 30,500,000.00
$ 0.00
August 31, 2016 September 30, 2016
$ 30,500,000.00 $ 1,500,000.00
7
September 30, 2016 October 31, 2016
$ 29,000,000.00 $ 0.00
October 31, 2016
November 30, 2016 $ 29,000,000.00
$ 0.00
November 30, 2016 December 30, 2016
$ 29,000,000.00 $ 1,875,000.00
December 30, 2016
January 31, 2017 $ 27,125,000.00
$ 0.00
January 31, 2017 February 28, 2017
$ 27,125,000.00 $ 0.00
February 28, 2017
March 31, 2017 $ 27,125,000.00
$ 1,875,000.00
March 31, 2017 April 28, 2017
$ 25,250,000.00 $ 0.00
April 28, 2017
May 31, 2017 $ 25,250,000.00
$ 0.00
May 31, 2017 June 30, 2017
$ 25,250,000.00 $ 1,875,000.00
June 30, 2017
July 31, 2017 $ 23,375,000.00
$ 0.00
July 31, 2017 August 31, 2017
$ 23,375,000.00 $ 0.00
August 31, 2017
September 29, 2017 $ 23,375,000.00
$ 23,375,000.00
Exhibit 10.7
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) by and between Standard Parking Corporation, a Delaware corporation (the “Company”) and William Bodenhamer (the “Executive”), dated as of September 10, 2012.
RECITALS
A. The Company is in the business of providing an array of commercial and residential property management services, including,
operating private and public parking facilities for itself, its subsidiaries, affiliates and others, and as a consultant and/or manager for parking facilities operated by others throughout the United States and Canada, providing on-street and off-street parking enforcement, residential and commercial property management services, security services for commercial establishments and airport and urban transportation services (the Company and its subsidiaries and affiliates and other Company-controlled businesses engaged in parking garage management (in each case including their predecessor’s or successor’s) are referred to hereinafter as the “Parking Companies”).
B. The Company has entered into an Agreement and Plan of Merger (the “Merger Agreement”) dated February 28, 2012, with KPCP Holdings pursuant to which, at the Effective Time (as defined in the Merger Agreement), the Company will be the parent corporation in the Merger (as defined in the Merger Agreement).
C. In order to protect the Company’s confidential information, goodwill and customer relationships; induce the Executive to serve as the Executive Vice President for the Company and the President and Chief Executive Officer of USA Parking System following the Merger; and as a material element of the merger transaction, the Company desires to provide the Executive with consideration and benefits on the terms set forth in this Agreement in exchange for the obligations herein.
D. The Executive is willing to accept such employment and perform services for the Company on the terms and conditions set
forth in this Agreement. NOW, THEREFORE, in consideration of: (i) the foregoing premises, (ii) the mutual covenants and agreements herein contained and/or
(iii) the salary continuation payment payable on termination, the Company and Executive hereby covenant and agree as follows:
1. Employment Period . This Agreement shall become effective as of the Closing Date (as defined in the Merger Agreement) (the “Effective Date”) and, except as otherwise expressly set forth in this Agreement, shall be of no force or effect prior to such date, of in the event the Merger Agreement is terminated prior to the consummation of the Merger.
The Company shall employ the Executive, and the Executive shall serve the Company, on the terms and conditions set forth in this
Agreement, for a period commencing on the Effective Date and ending September 30, 2013 (the “Employment Period”). The Employment Period shall automatically extend for additional terms of one (1) year each (individually referred to as a “Renewal Period” and in the plural as the “Renewal Periods”) unless the Company or
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Executive shall have given notice in writing of their intention not to renew the Agreement not less than one hundred eighty (180) days prior to the expiration of the Employment Period or any applicable Renewal Period. The Employment Period, as extended by one or more Renewal Periods, shall hereinafter be deemed to be the Employment Period. Notwithstanding any such termination, all of the terms and provisions set forth in paragraph 6 of this Agreement shall remain in full force and effect.
2. Position and Duties . During the Employment Period, the Executive shall serve as an Executive Vice President and President and Chief Executive Officer of USA Parking (Hospitality Services Division- Valet Parking Vertical and Standards of Operation) for the Company, with the duties, authority and responsibilities as are commensurate with such position and as are customarily associated with such position. Executive shall hold such other positions in the Company or any of the other Parking Companies as may be assigned to him from time to time by the Chief Executive Officer of the Company. The Executive shall report directly to the Chief Executive Officer of the Company. During the Employment Period, and excluding any periods of vacation and sick leave to which the Executive is entitled, the Executive shall devote full attention and time during normal business hours to the business and affairs of the Company and, to the extent necessary to discharge the responsibilities assigned to the Executive under this Agreement, use the Executive’s reasonable best efforts to carry out such responsibilities faithfully and efficiently. The Executive shall not, during the term of this Agreement, engage in any other business activities that will interfere with the Executive’s employment pursuant to this Agreement, it being agreed that the Executive may engage in, and may retain any fees payable as a result of, speaking or writing activities or service as a director of a non-competing company (provided, however, that the Executive’s acceptance of any such directorship shall be subject to the prior approval of the Company’s Chief Executive Officer) including without limitation any civic, charitable or corporate organization so long as such engagements do not interfere with Executive’s employment and duties pursuant to this Agreement; provided, however, that the Chief Executive Officer of the Company has previously consented to the Executive’s continuation in his position on the American Automobile Association of Florida’s board of directors. Executive shall discharge his duties and responsibilities under this Agreement in accordance with the Company’s Code of Conduct presently in effect or as amended and modified from time to time hereafter.
3. Compensation .
(a) Base Salary . Commencing as of the Effective Date, the Executive shall receive base salary at the annual rate of Four Hundred Sixty Four Thousand Dollars Four Hundred ($464,400) (the “Annual Base Salary”). The Annual Base Salary shall be payable in accordance with the Company’s normal payroll practice for executives as in effect from time to time, and shall be subject to review annually in accordance with the Company’s review policies and practices for executives as in effect at the time of any such review. At no time during the Employment Period shall the Annual Base Salary be reduced below the base salary in effect as of the Effective Date (the “Base Minimum Salary”) except (i) for Cause (as defined in paragraph 4(b) below), or (ii) the Executive’s duties and responsibilities have been reduced at the Executive’s request, which request shall be in writing.
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(b) Bonus . (i) For the 2013 calendar year, and each subsequent calendar year ending during the Employment Period, the Executive shall
be eligible to receive an annual bonus (the “Annual Bonus”) based upon terms and conditions of an annual bonus program established for the Executive by the Company (the “Annual Bonus Program”). It currently is expected that the Annual Bonus will be paid in the month of April following the calendar year in which the Annual Bonus is earned. In all events, the Executive’s target Annual Bonus (the “Target Annual Bonus”) throughout the Employment Period will be not less than Two Hundred Thousand Dollars ($200,000) per calendar year, with the actual amount of the Annual Bonus being determined in relation to the Target Annual Bonus in accordance with the terms of the Annual Bonus Program as approved annually by the Compensation Committee of the Board of Directors.
(c) Equity Plan .
(i) Effective January 1, 2013, the Executive will receive a one-time grant equal to the aggregate value of Six Hundred Fifty Hundred Thousand Dollars ($650,000) of the Company’s Restricted Stock Units, which will vest after three (3) years.
(ii) Upon the Board of Directors’ adoption of a new equity plan or program (the “Equity Plan”) calling for periodic grants for
its key executives during the term of this Agreement, while in the Company’s employ and during the Consulting Period set forth in paragraph 6(h) of this Agreement, the Executive shall be entitled to participate in the Equity Plan on terms applicable to similarly situated executives of the Company from and after the effective date thereof in accordance with the terms and conditions of the Equity Plan.
(d) Other Benefits . In addition to the foregoing, during the Employment Period: (i) the Executive shall be entitled to
participate in savings, retirement, and fringe benefit plans, practices, policies and programs of the Company as in effect from time to time, including, but not limited to the Company’s 401(k) plan, the Non-Qualified Deferred Compensation (NQDC) program on the same terms and conditions as those applicable to peer executives; (ii) the Executive shall be entitled to four (4) weeks of annual vacation, to be taken in accordance with the Company’s vacation policy as in effect from time to time; and (iii) the Executive and the Executive’s family shall be eligible for participation in, and shall receive all benefits under group medical, disability and other welfare benefit plans, practices, policies and programs provided by the Company, as in effect from time to time, on the same terms and conditions as those applicable to peer executives.
(e) Business Expenses . Executive shall be reimbursed by the Company for those business expenses authorized by the
Company and those for which are necessarily and reasonably incurred on behalf of the Company and which may be properly be deducted by the Company as business expenses for federal tax purposes.
4. Termination of Employment .
(a) Death or Disability . In the event of the Executive’s death during the Employment Period, the Executive’s
employment with the Company shall terminate 3
automatically. The Company, in its discretion, shall have the right to terminate the Executive’s employment because of the Executive’s Disability during the Employment Period. For purposes of this Agreement, “Disability” shall mean the absence of the Executive from the Executive’s duties with the Company on a full-time basis for 180 consecutive business days, or for periods aggregating 180 business days in any period of twelve months, as a result of incapacity due to mental or physical illness or injury which is determined to be total and permanent by a physician selected by the Company or its insurers. A termination of the Executive’s employment by the Company for Disability shall be communicated to the Executive by written notice, and shall be effective on the 30th day after receipt of such notice by the Executive (the “Disability Effective Date”), unless the Executive returns to full-time performance of the Executive’s duties before the Disability Effective Date.
(b) By the Company . In addition to termination for Disability, the Company may terminate the Executive’s
employment during the Employment Period for Cause or without Cause. “Cause” means:
(i) the continued and willful or deliberate failure of the Executive to substantially perform the Executive’s duties, or to comply with the Executive’s obligations, under this Agreement (other than as a result of physical or mental illness or injury); or
(ii) illegal acts or misconduct by the Executive, in either case that is willful and results in material damage to
the business or reputation of the Company.
Upon the occurrence of events constituting Cause as defined in subsection (i) of this paragraph 4(b), the Company shall give the Executive advance notice of any such termination for Cause and shall provide the Executive with a reasonable opportunity to cure.
(c) Voluntarily by the Executive . The Executive may terminate his employment by giving written notice thereof to the Company, provided, however, that if Executive terminates his employment for Good Reason, such termination shall not be considered a voluntary termination by Executive and Executive shall be treated as if he had been terminated by the Company pursuant to paragraph 5(a) below. “Good Reason” means any of the following:
(i) a reduction in the Executive’s Annual Base Salary, which is not accompanied by a similar reduction in
annual base salaries of similarly situated executives of the Company (provided, however, that in no event shall the Executive’s Annual Base Salary be reduced to less than the Base Salary Minimum unless permitted by paragraph 3(a) above); or
(ii) a reduction in the Executive’s opportunity to earn an Annual Bonus under the Annual Bonus Plan; or
(iii) a breach by the Company of this Agreement after Executive has given to the Company advance written
notice of, and a reasonable opportunity to cure, any such breach.
(d) Date of Termination . The “Date of Termination” means the date of the Executive’s death, the Disability Effective Date, the date on which the termination of the Executive’s employment by the Company for Cause, as set forth in notice from the Company, is
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effective, the date that notice of termination is provided to the Executive from Company of a termination of the Executive’s employment by the Company other than for Cause or Disability, or the date on which the Executive gives the Company notice of termination of employment, as the case may be.
5. Obligations of the Company upon Termination .
(a) By the Company Other Than for Cause or Disability . If, during the Employment Period, the Company terminates the Executive’s employment, other than for Cause or Disability, the Company shall pay the Executive for any accrued but unused vacation as of the Date of Termination, and in addition shall, throughout the duration of the Employment Period:
(i) continue to pay the Executive the Annual Base Salary and the Annual Bonus as in effect immediately before the
Date of Termination, as and when such amounts would be paid in accordance with paragraphs 3(a) and (b) above, provided the amount of any Annual Bonus so paid shall equal the Target Annual Bonus,
(ii) continue to provide health (medical and dental) benefits to the Executive and the Executive’s family, at least as
favorable as those that would have been provided to them under clause (d)(iii) of paragraph 3 above if the Executive’s employment had continued until the end of the Employment Period, provided, that during any period when the Executive is eligible to receive such welfare benefits under another employer-provided plan, the benefits provided by the Company pursuant to clause (iii) of this paragraph 5(a) may be made secondary to those provided under such other plan.
(b) Death . If the Executive’s employment is terminated by reason of the Executive’s death during the Employment
Period, the Company shall make, within thirty (30) days after the Date of Termination, a lump-sum cash payment to the Executive’s estate equal to the sum of (i) the Executive’s Annual Base Salary through the end of the calendar month in which death occurs, (ii) any earned and unpaid Annual Bonus for any calendar year ended prior to the Date of Termination and a prorated Target Bonus for services rendered in the year of death up to the Date of Termination, (iii) any accrued but unpaid vacation pay through the end of the calendar month in which death occurs, and (iv) any other vested benefits to which the Executive is entitled, in each case to the extent not yet paid, except for any death benefit, in which case the death benefit shall be paid to Executive’s estate within seven (7) days following receipt of any such death benefit by the Company from the insurer.
(c) Disability . In the event the Executive’s employment is terminated by reason of the Executive’s Disability during the
Employment Period in accordance with paragraph 4(a) hereof, the Company shall pay to the Executive or the Executive’s legal representative, as applicable, for the duration of the Employment Period (i) the Executive’s Annual Base Salary at the rate in effect immediately preceding the Date of Termination, provided that any such payments made to the Executive shall be reduced by the sum of the amounts, if any, payable to the Executive under any disability benefit plans of the Company or under the Social Security disability insurance program, (ii) any earned and unpaid Annual Bonus for any calendar year ended prior to the Date of Termination and a prorated Target Bonus for services rendered in the calendar year in which the Date of Termination occurs, and (iii) any other vested benefits to which the Executive is entitled, in each case to the extent not yet paid, including, but not limited
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to accrued but unpaid vacation pay. The Annual Base Salary and bonus payments to me made under this paragraph 5(c) shall be made as and when such amounts would be paid in accordance with paragraphs 3(a) and (b) above.
(d) Cause; Voluntary Termination: If the Executive’s employment is terminated by the Company for Cause or the
Executive voluntarily terminates his employment during the Employment Period (other than for “Good Reason”), the Company shall pay the Executive (i) the Annual Base Salary through the Date of Termination, (ii) the Annual Bonus for any calendar year ended prior to the Date of Termination, and (iii) any other vested benefits to which the Executive is entitled, in each case to the extent not yet paid, including but not limited to accrued but unpaid vacation pay, and the Company shall have no further obligations to the Executive under this Agreement.
6. Protection of Company Assets .
(a) Trade Secret and Confidential Information . The Executive recognizes and acknowledges that the acquisition and
operation of, and the providing of consulting services for, parking facilities is a unique enterprise and that there are relatively few firms engaged in these businesses in the primary areas in which the Parking Companies operate. The Executive further recognizes and acknowledges that in exchange for his or her employment with the Parking Companies, the Executive has been given access to and provided with and will continue to be provided with additional confidential information and trade secrets of the Parking Companies that constitute proprietary information that the Parking Companies are entitled to protect, which information constitutes special and unique assets of the Parking Companies, which is not generally available to the public , including without limitation (i) information relating to the Parking Companies’ manner and methods of doing business, including without limitation, strategies for negotiating leases and management agreements; (ii) the identity of the Parking Companies’ clients, customers, prospective clients and customers, lessors and locations, and the identity of any individuals or entities having an equity or other economic interest in any of the Parking Companies to the extent such identity has not otherwise been voluntarily disclosed by any of the Parking Companies; (iii) the specific confidential terms of management agreements, leases or other business agreements, including without limitation the duration of, and the fees, rent or other payments due thereunder; (iv) the identities of beneficiaries under land trusts; (v) the business, developments, activities or systems of the Parking Companies, including without limitation any marketing or customer service oriented programs in the development stages or not otherwise known to the general public; (vi) information concerning the business affairs of any individual or firm doing business with the Parking Companies; (vii) financial data and the operating expense structure pertaining to any parking facility owned, operated, leased or managed by the Parking Companies or for which the Parking Companies have or are providing consulting services; (viii) information pertaining to computer systems, including but not limited to computer software, used in the operation of the Parking Companies; and (ix) other confidential information and trade secrets relating to the operation of the Company’s business (the matters described in this sentence are referred to herein as “Trade Secret and Confidential Information”).
(b) Customer Relationships . The Executive understands and acknowledges that the Company has expended significant
resources over many years to identify, develop, and maintain its clients. The Executive additionally acknowledges that the Company’s clients have
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had continuous and long-standing relationships with the Company and that, as a result of these close, long-term relationships, the Company possesses significant knowledge of and confidential information about its clients and their needs. Finally, the Executive acknowledges the Executive’s association and contact with these clients is derived solely from Executive’s employment with the Company. The Executive further acknowledges that the Company does business throughout the United States and that the Executive personally has significant contact with the Company’s clients and customers solely as a result of Executive’s relationship with the Company.
(c) Confidentiality . With respect to Trade Secret and Confidential Information, and except as may be required by the
lawful order of a court or government agency of competent jurisdiction, the Executive agrees that Executive shall during his or her employment and thereafter:
(i) hold all Trade Secret and Confidential Information in strict confidence and not publish or otherwise disclose
any portion thereof to any person whatsoever except with the prior written consent of the Company so long as such Information is not generally available to the public;
(ii) use all reasonable precautions to assure that the Trade Secret and Confidential Information are properly
protected and kept from unauthorized persons or use; (iii) make no use of any Trade Secret and Confidential Information except as is required in the performance of
Executive’s duties for the Company; and (iv) immediately upon termination of Executive’s employment with the Company, whether voluntary or
involuntary and regardless of the reason or cause, or upon the request of the Company, promptly return to the Company all Company property including, without limitation, any and all documents, and other things relating to any Trade Secret and Confidential Information, all of which are and shall remain the sole property of the Company. The term “documents” as used in the preceding sentence shall mean all forms of written or recorded information and shall include, without limitation, all accounts, budgets, compilations, computer records (including, but not limited to, computer programs, software, disks, diskettes or any other electronic or magnetic storage media), contracts, correspondence, data, diagrams, drawings, financial statements, memoranda, microfilm or microfiche, notes, notebooks, marketing or other plans, printed materials, records and reports, as well as any and all copies, reproductions or summaries thereof.
Notwithstanding the above, nothing contained herein shall restrict the Executive from using, at any time after Executive’s termination
of employment with the Company, information which is generally available to the pubic or industry.
(d) Assignment of Intellectual Property Rights . The Executive agrees to assign to the Company any and all intellectual property rights including patents, trademarks, copyright and business plans or systems developed, authored or conceived by the Executive while so employed and relating to the business of the Company, and the Executive agrees to cooperate with the Company’s attorneys to perfect ownership rights thereof in the Company or any one or more of the Company. This agreement does not apply to an invention for which no
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equipment, supplies, facility or Trade Secret and Confidential Information of the Company was used and which was developed entirely on the Executive’s own time, unless (i) the invention relates either to the business of the Company or to actual or demonstrably anticipated research or development of the Parking Companies, or (ii) the invention results from any work performed by the Executive for the Parking Companies.
(e) Non-Compete . Executive agrees that while employed by the Company and for a period of twenty four (24) months after his or her Date of Termination for any reason, Executive will not directly or indirectly without first obtaining the express written permission of the Employer’s General Counsel, which permission may be withheld in the Employer’s sole discretion:
(i) conduct business with any client or customer of the Company with which Executive had any direct contact or responsibility within the twelve months preceding the Date of Termination or about whom Executive acquired any Trade Secret or Confidential Information during his or her employment with the Company; or
(ii) become employed by or render services to any competitor of the Company whether a person, partnership,
joint venture, consulting firm or other business, if in so doing the Executive duties would involve any level of strategic advisory, technical, sales, customer, client marketing, or other consulting functions competitive with the Company in the parking, transportation, and facility management services business
(f) Non-Solicitation . The Executive agrees that while he or she is employed by the Company and for a period of
twenty four (24) months after the Date of Termination, the Executive shall not, directly or indirectly:
(i) without first obtaining the express written permission of the Company’s General Counsel, which permission may be withheld solely in the Company’s discretion, directly or indirectly contact or solicit business from any client or customer of the Company with whom the Executive had direct contact or responsibility or about whom the Executive acquired any Trade Secret or Confidential Information during his employment with the Company. Likewise, the Executive shall not, without first obtaining the express written permission of the Company’s General Counsel which permission may be withheld solely in the Company’s discretion, directly or indirectly contact or solicit business from any person responsible for referring business to the Company or who regularly refers business to the Company with whom the Executive had any direct contact or about whom the Executive acquired any Trade Secret or Confidential Information during his employment with the Company; or
(ii) take any action to hire, recruit or to directly or indirectly assist in the hiring, recruiting or solicitation for
employment of any officer, employee or representative of the Parking Companies who possesses Trade Secret and Confidential Information of the Company.
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(iii) The following positions or investments shall not constitute a violation of the covenants set forth in paragraphs 6
(e) and 6(f) of this Agreement: (i) Trustee, East Carolina University Board of Trustees; (ii) Board Member, North Carolina Department of Transportation; (iii) ownership interest in the Deerfield Beach Parking Garage; and (iv) Member of Fort Lauderdale Downtown Development Authority. In addition, the Company hereby consents to the continued involvement of Executive in: (i) investment and development of real estate (non-parking facilities) in North Carolina; (ii) the development of a parking garage for the Holiday Inn in Fort Lauderdale, Florida and development or leasing of a parking lot at the airport in Charlotte, North Carolina; provided, however, that the Company or one of its affiliates shall have a right of first refusal regarding the operation, management or leasing of all parking facilities related thereto; (iii) as a director and investor of GC Partners, Inc., and BF South, LLC, or the respective subsidiaries and affiliates thereof (i.e., real estate owning affiliates); and (iv) taxi cab investments in SDYC, LLC and NBRS USA Holdings, LLC. Notwithstanding the above, the Executive shall have the right to assume the operations of the transportation contracts of the Company set forth on the list attached hereto as Exhibit A in the event of termination of employment hereunder for any reason; provided, however, that the Company shall retain all rights in the USA Transportation and related names and trademarks. It is hereby acknowledged that Fort Lauderdale Transportation, Inc. shall continue to lease its operating permits and vehicles to USA Transportation as long as Executive is employed by the Company. The Company agrees that the Executive’s operation of a town car, limousine, shuttle bus, van, mini-bus or any other transportation service operating under the USA name in the State of Florida, shall not constitute a violation of this Agreement after termination of Executive’s employment; provided, however, that no such operation in connection with any airport parking or park-n-fly or similar type of facility (however denoted) shall be permissible. The Executive’s right to the use of the USA Parking name for business purposes is granted as a personal license to the Executive that the Executive may not sell, pledge, assign or combine with any other business entity. The Executive acknowledges that the covenants contained herein are reasonable as to geographic and temporal scope and acknowledges the sufficiency of the consideration for such covenants.
If the Executive, after the termination of his or her employment hereunder, has any question regarding the applicability of the above
provisions to a potential employment opportunity, the Executive acknowledges that it is his or her responsibility to contact the Company so that the Company may inform the Executive of its position with respect to such opportunity. The Executive agrees that the non-compete period set forth in Section 6(e) above shall be tolled, and shall not run, during any period of time in which he is in violation of the terms thereof, so that the Company shall have al of the agreed-upon temporal protections recited therein.
(g) Salary Continuation Payments . As additional consideration for the representation and restrictions contained in this
paragraph 6, if (i) the termination of Executive’s employment occurs prior to the expiration of the Employment Period for any reason other than Death, Disability, Cause or the Executive’s Voluntary Termination, or (ii) the Company gives a written notice of non-renewal of the Employment Period as provided in paragraph 1 above such that the Employment Period will terminate prior to the fifth (5 ) anniversary of its commencement, then the Company agrees to pay Executive amounts which, when combined with all amounts payable by the Company pursuant to either clause (i) of paragraph 5(a) above or clauses (i) and (ii) of paragraph 5(c) above, will total Executive’s Annual Base Salary and Target Annual Bonus as in effect immediately preceding the Date of Termination for a period of
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twenty-four (24) months following the Date of Termination (the “Salary Continuation Payments”). The Salary Continuation Payments shall be payable as and when such amounts would be paid in accordance with paragraph 3(a) and (b) above. If (i) the Company terminates the Executive’s employment for Cause, due to Executive’s Disability, or by giving written notice of non-renewal of the Employment Period as provided in paragraph 1 above such that the Employment Period will terminate on or after the fifth (5 ) anniversary of its commencement, or (ii) the Executive gives notice of his or her Voluntary Termination, then the Salary Continuation Payments shall be the total of (x) any and all amounts due the Executive by reason of and in accordance with the provisions of paragraph 5(d) above, payable as provided therein, plus (y) the sum of $50,000, payable (a) in the event of a termination by the Company under clause (i) of this sentence, over a twelve-month period following the Date of Termination, in eleven (11) equal monthly installments of $1,000.00, followed by a twelfth and final monthly payment in the amount of $39,000, or (b) in the event of a termination by the Executive under clause (ii) of this sentence, over a six-month period beginning on the first day of the seventh month following the Date of Termination, in five (5) equal monthly installments of $2,000, followed by a sixth and final monthly payment in the amount of $40,000. If the Executive breaches this Agreement at any time during the period in which payments are being made hereunder, the Company’s obligation to make any additional Salary Continuation Payments shall immediately cease, and the Executive shall immediately return to the Company all Salary Continuation Payments paid up to that time to the extent they exceeded $1,000.00. The termination of Salary Continuation Payments shall not waive any other rights at law or equity which the Company may have against Executive by virtue of his breach of this Agreement. The Company’s obligation to make Salary Continuation Payments shall cease with respect to periods after Executive’s death.
(h) Consulting Services . Unless the Executive is terminated for Cause, upon termination of the Executive’s employment and continuing for a period of three (3) years (the “Consulting Period”), the Company shall cause the Executive to provide the consulting services described below. During the Consulting Period, the Company shall cause the Executive to provide the following services: advice with its management, operations and finances; work with clients and customers to ensure a smooth transition to new business leadership; assist with client/customer retention and business development and marketing services when reasonably requested by the Company (“Consulting Services”). The Executive agrees to provide such consulting services in good faith and with due care and skill. Additionally, the restrictive covenants set forth in paragraphs 6(e) and (f) of this Agreement shall apply to the entirety of the Consulting Period. During the Consulting Period, the Company will pay to the Executive an annual fee equal to the sum of his Base Annual Salary plus his Target Annual Bonus as of the Effective Date of this Agreement, which sum shall not exceed Six Hundred Sixty Four Thousand Four Hundred Dollars ($664,400) per year. To the extent the Company’s Board of Directors adopts an Equity Plan for 2013 and beyond and the Executive is issued shares thereunder, the Executive’s service for time spent providing Consulting Services shall entitle him to continue to participate in such Equity Plan on terms applicable to and shall vest on the same schedule as similarly situated executives of the Company. The Executive shall only be entitled to payment under either paragraph 6(g) or 6(h) of this Agreement and shall in no event receive payment under both paragraphs.
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(i) Remedies . The Executive acknowledges that the Company would be irreparably injured by a violation of the
covenants of this paragraph 6 and agrees that the Company, or any one or more of the Parking Companies, in addition to any other remedies available to it or them for such breach or threatened breach, shall be entitled to a preliminary injunction, temporary restraining order, or other equivalent relief in a court of law or through arbitration, restraining the Executive from any actual or threatened breach of any of the provisions of this paragraph 6. In the event any violation of paragraph 6 of this Agreement is determined by a tribunal of competent jurisdiction, the period of non-competition and/ or non-solicitation shall be extended by a period of time equal to that period beginning when such violation commenced and ending when the activities constituting such violation shall have terminated. If a bond is required to be posted in order for the Company or any one or more of the Company to secure an injunction or other equitable remedy, the parties agree that said bond need not exceed a nominal sum. This paragraph shall be applicable regardless of the reason for the Executive’s termination of employment, and independent of any alleged action or alleged breach of any provision hereby by the Company. If at any time any of the provisions of this paragraph 6 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to duration, area, scope of activity or otherwise, then this paragraph 6 shall be considered divisible (with the other provisions to remain in full force and effect) and the invalid or unenforceable provisions shall become and be deemed to be immediately amended to include only such time, area, scope of activity and other restrictions, as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter, and the Executive expressly agrees that this Agreement, as so amended, shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
7. Incorporation of Recitals . The Recitals set forth above are hereby incorporated as material terms of this Agreement.
8. Severability . The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, and this Agreement will be construed as if such invalid or unenforceable provision were omitted (but only to the extent that such provision cannot be appropriately reformed or modified).
9. Notices . Any notice which any party shall be required or shall desire to serve upon the other shall be in writing and shall be delivered personally or sent by registered or certified mail, postage prepaid, or sent by facsimile or prepaid overnight courier, to the parties at the addresses set forth below (or such other addresses as shall be specified by the parties by like notice):
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In the case of Executive to: William Bodenhamer
3840 NE 31 Avenue
Lighthouse Point, Florida 33064
In the case of the Company to:
Standard Parking Corporation
900 North Michigan Avenue
Suite 1600
Chicago, Illinois 60611
Attention: General Counsel
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10. Applicable Law; Submission to Jurisdiction . This Agreement shall be construed in accordance with the laws and decisions of
the State of Illinois in the same manner applicable to contracts made and to be performed entirely within the State of Illinois and without regard to the conflict of law provisions thereof. Executive and the Company agree to submit himself and itself, as applicable, to the non-exclusive general jurisdiction of any United States federal or Illinois state court sitting in Chicago, Illinois and appellate courts thereof, in any legal action or proceeding relating to this Agreement or Executive’s employment with the Company.
11. Nonalienation . The interests of the Executive under this Agreement are not subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors of the Executive or the Executive’s beneficiary.
12. Amendment . This Agreement may be amended or cancelled only by mutual agreement of the parties in writing without the consent of any other person.
13. Waiver of Breach . No waiver by any party hereto of a breach of any provision of this Agreement by any other party, or of compliance with any condition or provision of this Agreement to be performed by such other party, will operate or be construed as a waiver of any subsequent breach by such other party or any similar or dissimilar provisions and conditions at the same or any prior or subsequent time. The failure of any party hereto to take any action by reason of such breach will not deprive such party of the right to take action at any time while such breach continues.
14. Successors . This Agreement shall be binding upon, and inure to the benefit of, the Company and its successors and assigns and upon any person acquiring, whether by merger, consolidation, purchase of assets or otherwise, of all or substantially all of the Company’s assets and business. The Executive’s duties hereunder are personal and may not be assigned.
15. Entire Agreement . Except as otherwise noted herein, this Agreement, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, either oral or in writing, if any, between the parties, including the Executive’s employment agreement with Central Parking System, relating to the subject matter hereof.
16. Acknowledgement by Executive . The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a livelihood following the Date of Termination.
17. Compliance with Section 409A. Payments under Sections 5 and 6 shall be paid or provided only at the time of a termination of the Executive’s employment that constitutes a “separation from service” within the meaning of Section 409A of the Internal Revenue Code (the
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“Code”). Further, if the Executive is a “specified employee” as such term is defined under Section 409A of the Code, any payments described in Section 5 or Section 6 shall be delayed for a period of six (6) months following the Executive’s separation from service to the extent and up to an amount necessary to ensure such payments are not subject to penalties and interest under Section 409A of the Code, and shall thereafter be paid for the duration set forth in Section 5 or Section 6.
IN WITNESS WHEREOF, the Executive and the Company have executed this Agreement as of the day and year first written above.
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STANDARD PARKING CORPORATION
By: /s/ James A. Wilhelm
James A. Wilhelm
President and Chief Executive Officer
EXECUTIVE:
/s/ William Bodenhamer
William Bodenhamer
EXHIBIT “A”
RECOVERABLE TRANSPORTATION PROJECTS
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1. Harbor Beach Marriott
2.
HyattPier 66 3.
Westin Diplomat 4.
Boca Hotel & Resort 5.
Fort Lauderdale Marriott 6.
St. Regis Hotel (Fort Lauderdale) 7.
Port Everglades
Exhibit 10.8
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) by and between Standard Parking Corporation, a Delaware corporation (the “Company”) and Daniel Huberty (the “Executive”), dated as of September 10, 2012.
RECITALS
A. The Company is in the business of providing an array of commercial and residential property management services, including,
operating private and public parking facilities for itself, its subsidiaries, affiliates and others, and as a consultant and/or manager for parking facilities operated by others throughout the United States and Canada, providing on-street and off-street parking enforcement, residential and commercial property management services, security services for commercial establishments and airport and urban transportation services (the Company and its subsidiaries and affiliates and other Company-controlled businesses engaged in parking garage management (in each case including their predecessor’s or successor’s) are referred to hereinafter as the “Parking Companies”).
B. The Company has entered into an Agreement and Plan of Merger (the “Merger Agreement”) dated February 28, 2012, with KPCP Holdings pursuant to which, at the Effective Time (as defined in the Merger Agreement), the Company will be the parent corporation in the Merger (as defined in the Merger Agreement).
C. In order to protect the Company’s confidential information, goodwill and customer relationships; induce the Executive to serve as the Executive Vice President of Operations of the Company following the Merger; and as a material element of the merger transaction, the Company desires to provide the Executive with consideration and benefits on the terms set forth in this Agreement in exchange for the obligations herein.
D. The Executive is willing to accept such employment and perform services for the Company on the terms and conditions set
forth in this Agreement. NOW, THEREFORE, in consideration of: (i) the foregoing premises, (ii) the mutual covenants and agreements herein contained and/or
(iii) the salary continuation payment payable on termination, the Company and Executive hereby covenant and agree as follows:
1. Employment Period . This Agreement shall become effective as of the Closing Date (as defined in the Merger Agreement) (the “Effective Date”) and, except as otherwise expressly set forth in this Agreement, shall be of no force or effect prior to such date, of in the event the Merger Agreement is terminated prior to the consummation of the Merger.
The Company shall employ the Executive, and the Executive shall serve the Company, on the terms and conditions set forth in this
Agreement, for a period commencing on the Effective Date ending one (1) year thereafter (the “Employment Period”). The Employment Period shall automatically extend for additional terms of one (1) year each (individually referred to as a “Renewal Period” and in the plural as the “Renewal Periods”) unless the Company or Executive shall have given notice in writing of their intention not to renew the Agreement not
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less than one hundred eighty (180) days prior to the expiration of the Employment Period or any applicable Renewal Period. The Employment Period, as extended by one or more Renewal Periods, shall hereinafter be deemed to be the Employment Period. Notwithstanding any such termination, all of the terms and provisions set forth in paragraph 6 of this Agreement shall remain in full force and effect.
2. Position and Duties . During the Employment Period, the Executive shall serve as the Executive Vice President of Operations
of the Company, with the duties, authority and responsibilities as are commensurate with such position and as are customarily associated with such position. Executive shall hold such other positions in the Company or any of the other Parking Companies as may be assigned to him from time to time by the Chief Executive Officer of the Company or his designee. The Executive shall report directly to the Chief Executive Officer of the Company or as otherwise directed by the Chief Executive Officer. During the Employment Period, and excluding any periods of vacation and sick leave to which the Executive is entitled, the Executive shall devote full attention and time during normal business hours to the business and affairs of the Company and, to the extent necessary to discharge the responsibilities assigned to the Executive under this Agreement, use the Executive’s reasonable best efforts to carry out such responsibilities faithfully and efficiently. The Executive shall not, during the term of this Agreement, engage in any other business activities that will interfere with the Executive’s employment pursuant to this Agreement, it being agreed that the Executive may engage in, and may retain any fees payable as a result of, speaking or writing activities, or may serve as a State Representative for the State of Texas, or serve as a director of a non-competing company (provided, however, that the Executive’s acceptance of any such directorship shall be subject to the prior approval of the Company’s Chief Executive Officer) so long as such engagements do not interfere with Executive’s employment and duties pursuant to this Agreement. Executive shall discharge his duties and responsibilities under this Agreement in accordance with the Company’s Code of Conduct presently in effect or as amended and modified from time to time hereafter.
3. Compensation .
(a) Base Salary . Commencing as of the Effective Date, the Executive shall receive base salary at the annual rate of Two Hundred Eighty Nine Thousand Four Hundred Dollars ($289,400) (the “Annual Base Salary”). The Annual Base Salary shall be payable in accordance with the Company’s normal payroll practice for executives as in effect from time to time, and shall be subject to review annually in accordance with the Company’s review policies and practices for executives as in effect at the time of any such review. At no time during the Employment Period shall the Annual Base Salary be reduced below the base salary in effect as of the Effective Date (the “Base Minimum Salary”) except (i) for Cause (as defined in paragraph 4(b) below), or (ii) the Executive’s duties and responsibilities have been reduced at the Executive’s request.
(b) Bonus . For the 2013 calendar year, and each subsequent calendar year ending during the Employment Period, the
Executive shall be eligible to receive an annual bonus (the “Annual Bonus”) based upon terms and conditions of an annual bonus program established for the Executive by the Company (the “Annual Bonus Program”). It currently is expected that the Annual Bonus will be paid in the month of April following the calendar year in which the Annual Bonus is earned. In all events, the Executive’s target Annual Bonus (the “Target Annual
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Bonus”) throughout the Employment Period will be not less than One Hundred Fifty Thousand Dollars ($150,000) per calendar year, with the actual amount of the Annual Bonus being determined in relation to the Target Annual Bonus in accordance with the terms of the Annual Bonus Program as approved annually by the Compensation Committee of the Board of Directors.
(c) Equity Plan . In the event the Company adopts an equity plan or program (the “Equity Plan”) calling for periodic
grants for its key executives during the term of this Agreement, the Executive shall be entitled to participate in the Equity Plan on a similar basis as similarly situated executives of the Company from and after the effective date thereof in accordance with the terms and conditions of the Equity Plan.
(d) Other Benefits . In addition to the foregoing, during the Employment Period: (i) the Executive shall be entitled to
participate in savings, retirement, and fringe benefit plans, practices, policies and programs of the Company as in effect from time to time, including, but not limited to the Company’s 401(k) plan, the Non-Qualified Deferred Compensation (NQDC) program on the same terms and conditions as those applicable to peer executives; (ii) the Executive shall be entitled to four (4) weeks of annual vacation, to be taken in accordance with the Company’s vacation policy as in effect from time to time; and (iii) the Executive and the Executive’s family shall be eligible for participation in, and shall receive all benefits under group medical, disability and other welfare benefit plans, practices, policies and programs provided by the Company, as in effect from time to time, on the same terms and conditions as those applicable to peer executives.
(e) Business Expenses . Executive shall be reimbursed by the Company for those business expenses authorized by the
Company and those for which are necessarily and reasonably incurred on behalf of the Company and which may be properly be deducted by the Company as business expenses for federal tax purposes.
4. Termination of Employment .
(a) Death or Disability . In the event of the Executive’s death during the Employment Period, the Executive’s
employment with the Company shall terminate automatically. The Company, in its discretion, shall have the right to terminate the Executive’s employment because of the Executive’s Disability during the Employment Period. For purposes of this Agreement, “Disability” shall mean the absence of the Executive from the Executive’s duties with the Company on a full-time basis for 180 consecutive business days, or for periods aggregating 180 business days in any period of twelve months, as a result of incapacity due to mental or physical illness or injury which is determined to be total and permanent by a physician selected by the Company or its insurers. A termination of the Executive’s employment by the Company for Disability shall be communicated to the Executive by written notice, and shall be effective on the 30th day after receipt of such notice by the Executive (the “Disability Effective Date”), unless the Executive returns to full-time performance of the Executive’s duties before the Disability Effective Date.
(b) By the Company . In addition to termination for Disability, the Company may terminate the Executive’s
employment during the Employment Period for Cause or without Cause. “Cause” means: 3
(i) the continued and willful or deliberate failure of the Executive to substantially perform the Executive’s
duties, or to comply with the Executive’s obligations, under this Agreement (other than as a result of physical or mental illness or injury); or (ii) illegal acts or misconduct by the Executive, in either case that is willful and results in material damage to
the business or reputation of the Company.
Upon the occurrence of events constituting Cause as defined in subsection (i) of this paragraph 4(b), the Company shall give the Executive advance notice of any such termination for Cause and shall provide the Executive with a reasonable opportunity to cure.
(c) Voluntarily by the Executive . The Executive may terminate his employment by giving written notice thereof to the Company, provided, however, that if Executive terminates his employment for Good Reason, such termination shall not be considered a voluntary termination by Executive and Executive shall be treated as if he had been terminated by the Company pursuant to paragraph 5(a) below. “Good Reason” means any of the following:
(i) a reduction in the Executive’s Annual Base Salary, which is not accompanied by a similar reduction in
annual base salaries of similarly situated executives of the Company (provided, however, that in no event shall the Executive’s Annual Base Salary be reduced to less than the Base Salary Minimum unless permitted by paragraph 3(a) above); or
(ii) a reduction in the Executive’s opportunity to earn an Annual Bonus under the Annual Bonus Plan; or
(iii) a breach by the Company of this Agreement after Executive has given to the Company advance written
notice of, and a reasonable opportunity to cure, any such breach.
(d) Date of Termination . The “Date of Termination” means the date of the Executive’s death, the Disability Effective Date, the date on which the termination of the Executive’s employment by the Company for Cause, as set forth in notice from the Company, is effective, the date that notice of termination is provided to the Executive from Company of a termination of the Executive’s employment by the Company other than for Cause or Disability, or the date on which the Executive gives the Company notice of termination of employment, as the case may be.
5. Obligations of the Company upon Termination .
(a) By the Company Other Than for Cause or Disability . If, during the Employment Period, the Company terminates the Executive’s employment, other than for Cause or Disability, the Company shall pay the Executive for any accrued but unused vacation as of the Date of Termination, and in addition shall, throughout the duration of the Employment Period:
(i) continue to pay the Executive the Annual Base Salary and the Annual Bonus as in effect immediately before the
Date of Termination, as and when such amounts would be paid in accordance with paragraphs 3(a) and (b) above, provided the amount of any Annual Bonus so paid shall equal the Target Annual Bonus,
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(ii) continue to provide health (medical and dental) benefits to the Executive and the Executive’s family, at least as
favorable as those that would have been provided to them under clause (d)(iii) of paragraph 3 above if the Executive’s employment had continued until the end of the Employment Period, provided, that during any period when the Executive is eligible to receive such welfare benefits under another employer-provided plan, the benefits provided by the Company pursuant to clause (iii) of this paragraph 5(a) may be made secondary to those provided under such other plan.
(b) Death . If the Executive’s employment is terminated by reason of the Executive’s death during the Employment
Period, the Company shall make, within thirty (30) days after the Date of Termination, a lump-sum cash payment to the Executive’s estate equal to the sum of (i) the Executive’s Annual Base Salary through the end of the calendar month in which death occurs, (ii) any earned and unpaid Annual Bonus for any calendar year ended prior to the Date of Termination and a prorated Target Bonus for services rendered in the year of death up to the Date of Termination, (iii) any accrued but unpaid vacation pay through the end of the calendar month in which death occurs, and (iv) any other vested benefits to which the Executive is entitled, in each case to the extent not yet paid, except for any death benefit, in which case the death benefit shall be paid to Executive’s estate within seven (7) days following receipt of any such death benefit by the Company from the insurer.
(c) Disability . In the event the Executive’s employment is terminated by reason of the Executive’s Disability during the
Employment Period in accordance with paragraph 4(a) hereof, the Company shall pay to the Executive or the Executive’s legal representative, as applicable, for the duration of the Employment Period (i) the Executive’s Annual Base Salary at the rate in effect immediately preceding the Date of Termination, provided that any such payments made to the Executive shall be reduced by the sum of the amounts, if any, payable to the Executive under any disability benefit plans of the Company or under the Social Security disability insurance program, (ii) any earned and unpaid Annual Bonus for any calendar year ended prior to the Date of Termination and a prorated Target Bonus for services rendered in the calendar year in which the Date of Termination occurs, and (iii) any other vested benefits to which the Executive is entitled, in each case to the extent not yet paid, including, but not limited to accrued but unpaid vacation pay. The Annual Base Salary and bonus payments to me made under this paragraph 5(c) shall be made as and when such amounts would be paid in accordance with paragraphs 3(a) and (b) above.
(d) Cause; Voluntary Termination: If the Executive’s employment is terminated by the Company for Cause or the
Executive voluntarily terminates his employment during the Employment Period (other than for “Good Reason”), the Company shall pay the Executive (i) the Annual Base Salary through the Date of Termination, (ii) the Annual Bonus for any calendar year ended prior to the Date of Termination, and (iii) any other vested benefits to which the Executive is entitled, in each case to the extent not yet paid, including but not limited to accrued but unpaid vacation pay, and the Company shall have no further obligations to the Executive under this Agreement.
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6. Protection of Company Assets .
(a) Trade Secret and Confidential Information . The Executive recognizes and acknowledges that the acquisition and
operation of, and the providing of consulting services for, parking facilities is a unique enterprise and that there are relatively few firms engaged in these businesses in the primary areas in which the Parking Companies operate. The Executive further recognizes and acknowledges that in exchange for his or her employment with the Parking Companies, the Executive has been given access to and provided with and will continue to be provided with additional confidential information and trade secrets of the Parking Companies that constitute proprietary information that the Parking Companies are entitled to protect, which information constitutes special and unique assets of the Parking Companies, which is not generally available to the public , including without limitation (i) information relating to the Parking Companies’ manner and methods of doing business, including without limitation, strategies for negotiating leases and management agreements; (ii) the identity of the Parking Companies’ clients, customers, prospective clients and customers, lessors and locations, and the identity of any individuals or entities having an equity or other economic interest in any of the Parking Companies to the extent such identity has not otherwise been voluntarily disclosed by any of the Parking Companies; (iii) the specific confidential terms of management agreements, leases or other business agreements, including without limitation the duration of, and the fees, rent or other payments due thereunder; (iv) the identities of beneficiaries under land trusts; (v) the business, developments, activities or systems of the Parking Companies, including without limitation any marketing or customer service oriented programs in the development stages or not otherwise known to the general public; (vi) information concerning the business affairs of any individual or firm doing business with the Parking Companies; (vii) financial data and the operating expense structure pertaining to any parking facility owned, operated, leased or managed by the Parking Companies or for which the Parking Companies have or are providing consulting services; (viii) information pertaining to computer systems, including but not limited to computer software, used in the operation of the Parking Companies; and (ix) other confidential information and trade secrets relating to the operation of the Company’s business (the matters described in this sentence are referred to herein as “Trade Secret and Confidential Information”).
(b) Customer Relationships . The Executive understands and acknowledges that the Company has expended significant
resources over many years to identify, develop, and maintain its clients. The Executive additionally acknowledges that the Company’s clients have had continuous and long-standing relationships with the Company and that, as a result of these close, long-term relationships, the Company possesses significant knowledge of and confidential information about its clients and their needs. Finally, the Executive acknowledges the Executive’s association and contact with these clients is derived solely from Executive’s employment with the Company. The Executive further acknowledges that the Company does business throughout the United States and that the Executive personally has significant contact with the Company’s clients and customers solely as a result of Executive’s relationship with the Company.
(c) Confidentiality . With respect to Trade Secret and Confidential Information, and except as may be required by the
lawful order of a court or government agency of competent jurisdiction, the Executive agrees that Executive shall during his or her employment and thereafter:
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(i) hold all Trade Secret and Confidential Information in strict confidence and not publish or otherwise disclose
any portion thereof to any person whatsoever except with the prior written consent of the Company so long as such Information is not generally available to the public;
(ii) use all reasonable precautions to assure that the Trade Secret and Confidential Information are properly
protected and kept from unauthorized persons or use; (iii) make no use of any Trade Secret and Confidential Information except as is required in the performance of
Executive’s duties for the Company; and (iv) immediately upon termination of Executive’s employment with the Company, whether voluntary or
involuntary and regardless of the reason or cause, or upon the request of the Company, promptly return to the Company all Company property including, without limitation, any and all documents, and other things relating to any Trade Secret and Confidential Information, all of which are and shall remain the sole property of the Company. The term “documents” as used in the preceding sentence shall mean all forms of written or recorded information and shall include, without limitation, all accounts, budgets, compilations, computer records (including, but not limited to, computer programs, software, disks, diskettes or any other electronic or magnetic storage media), contracts, correspondence, data, diagrams, drawings, financial statements, memoranda, microfilm or microfiche, notes, notebooks, marketing or other plans, printed materials, records and reports, as well as any and all copies, reproductions or summaries thereof.
Notwithstanding the above, nothing contained herein shall restrict the Executive from using, at any time after Executive’s termination
of employment with the Company, information which is generally available to the pubic or industry.
(d) Assignment of Intellectual Property Rights . The Executive agrees to assign to the Company any and all intellectual property rights including patents, trademarks, copyright and business plans or systems developed, authored or conceived by the Executive while so employed and relating to the business of the Company, and the Executive agrees to cooperate with the Company’s attorneys to perfect ownership rights thereof in the Company or any one or more of the Company. This agreement does not apply to an invention for which no equipment, supplies, facility or Trade Secret and Confidential Information of the Company was used and which was developed entirely on the Executive’s own time, unless (i) the invention relates either to the business of the Company or to actual or demonstrably anticipated research or development of the Parking Companies, or (ii) the invention results from any work performed by the Executive for the Parking Companies.
(e) Non-Compete . Executive agrees that while employed by the Company and for a period of twenty-four (24) months after his or her Date of Termination for any reason, Executive will not directly or indirectly without first obtaining the express written permission of the Employer’s General Counsel, which permission may be withheld in the Employer’s sole discretion:
(i) conduct business with any client or customer of the Company with 7
which Executive had any direct contact or responsibility within the twelve months preceding the Date of Termination or about whom Executive acquired any Trade Secret or Confidential Information during his or her employment with the Company; or
(ii) become employed by or render services to any competitor of the Company whether a person, partnership, joint venture, consulting firm or other business, if in so doing the Executive duties would involve any level of strategic advisory, technical, sales, customer, client marketing, or other consulting functions competitive with the Company in the parking, transportation, and facility management services business
(f) Non-Solicitation . The Executive agrees that while he or she is employed by the Company and for a period of
twenty-four (24) months after the Date of Termination, the Executive shall not, directly or indirectly:
(i) without first obtaining the express written permission of the Company’s General Counsel, which permission may be withheld solely in the Company’s discretion, directly or indirectly contact or solicit business from any client or customer of the Company with whom the Executive had direct contact or responsibility or about whom the Executive acquired any Trade Secret or Confidential Information during his employment with the Company. Likewise, the Executive shall not, without first obtaining the express written permission of the Company’s General Counsel which permission may be withheld solely in the Company’s discretion, directly or indirectly contact or solicit business from any person responsible for referring business to the Company or who regularly refers business to the Company with whom the Executive had any direct contact or about whom the Executive acquired any Trade Secret or Confidential Information during his employment with the Company; or
(ii) take any action to hire, recruit or to directly or indirectly assist in the hiring, recruiting or solicitation for
employment of any officer, employee or representative of the Parking Companies who possesses Trade Secret and Confidential Information of the Company.
If the Executive, after the termination of his or her employment hereunder, has any question regarding the applicability of the above
provisions to a potential employment opportunity, the Executive acknowledges that it is his or her responsibility to contact the Company so that the Company may inform the Executive of its position with respect to such opportunity. The Executive agrees that the non-compete period set forth in Section 6(e) above shall be tolled, and shall not run, during any period of time in which he is in violation of the terms thereof, so that the Company shall have al of the agreed-upon temporal protections recited therein.
(g) Salary Continuation Payments . As additional consideration for the representation and restrictions contained in this
paragraph 6, if (i) the termination of Executive’s employment occurs prior to the expiration of the Employment Period for any reason other than Death, Disability, Cause or the Executive’s Voluntary Termination, or (ii) the Company gives a written notice of non-renewal of the Employment Period as provided in paragraph 1 above such
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that the Employment Period will terminate prior to the twenty-first (21 ) anniversary of its commencement, then the Company agrees to pay Executive amounts which, when combined with all amounts payable by the Company pursuant to either clause (i) of paragraph 5(a) above or clauses (i) and (ii) of paragraph 5(c) above, will total Executive’s Annual Base Salary and Target Annual Bonus as in effect immediately preceding the Date of Termination for a period of twenty-four (24) months following the Date of Termination (the “Salary Continuation Payments”). The Salary Continuation Payments shall be payable as and when such amounts would be paid in accordance with paragraph 3(a) and (b) above. If (i) the Company terminates the Executive’s employment for Cause, due to Executive’s Disability, or by giving written notice of non-renewal of the Employment Period as provided in paragraph 1 above such that the Employment Period will terminate on or after the twenty-first (21 ) anniversary of its commencement, or (ii) the Executive gives notice of his or her Voluntary Termination, then the Salary Continuation Payments shall be the total of (x) any and all amounts due the Executive by reason of and in accordance with the provisions of paragraph 5(d) above, payable as provided therein, plus (y) the sum of $50,000, payable (a) in the event of a termination by the Company under clause (i) of this sentence, over a twelve-month period following the Date of Termination, in eleven (11) equal monthly installments of $1,000.00, followed by a twelfth and final monthly payment in the amount of $39,000, or (b) in the event of a termination by the Executive under clause (ii) of this sentence, over a six-month period beginning on the first day of the seventh month following the Date of Termination, in five (5) equal monthly installments of $2,000, followed by a sixth and final monthly payment in the amount of $40,000. If the Executive breaches this Agreement at any time during the period in which payments are being made hereunder, the Company’s obligation to make any additional Salary Continuation Payments shall immediately cease, and the Executive shall immediately return to the Company all Salary Continuation Payments paid up to that time to the extent they exceeded $1,000.00. The termination of Salary Continuation Payments shall not waive any other rights at law or equity which the Company may have against Executive by virtue of his breach of this Agreement. The Company’s obligation to make Salary Continuation Payments shall cease with respect to periods after Executive’s death.
(h) Remedies . The Executive acknowledges that the Company would be irreparably injured by a violation of the covenants of this paragraph 6 and agrees that the Company, or any one or more of the Parking Companies, in addition to any other remedies available to it or them for such breach or threatened breach, shall be entitled to a preliminary injunction, temporary restraining order, or other equivalent relief in a court of law or through arbitration, restraining the Executive from any actual or threatened breach of any of the provisions of this paragraph 6. In the event any violation of paragraph 6 of this Agreement is determined by a tribunal of competent jurisdiction, the period of non-competition and/ or non-solicitation shall be extended by a period of time equal to that period beginning when such violation commenced and ending when the activities constituting such violation shall have terminated. If a bond is required to be posted in order for the Company or any one or more of the Company to secure an injunction or other equitable remedy, the parties agree that said bond need not exceed a nominal sum. This paragraph shall be applicable regardless of the reason for the Executive’s termination of employment, and independent of any alleged action or alleged breach of any provision hereby by the Company. If at any time any of the provisions of this paragraph 6 shall be determined to be invalid or unenforceable by reason of being vague or
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unreasonable as to duration, area, scope of activity or otherwise, then this paragraph 6 shall be considered divisible (with the other provisions to remain in full force and effect) and the invalid or unenforceable provisions shall become and be deemed to be immediately amended to include only such time, area, scope of activity and other restrictions, as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter, and the Executive expressly agrees that this Agreement, as so amended, shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
7. Incorporation of Recitals . The Recitals set forth above are hereby incorporated as material terms of this Agreement.
8. Severability . The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, and this Agreement will be construed as if such invalid or unenforceable provision were omitted (but only to the extent that such provision cannot be appropriately reformed or modified).
9. Notices . Any notice which any party shall be required or shall desire to serve upon the other shall be in writing and shall be delivered personally or sent by registered or certified mail, postage prepaid, or sent by facsimile or prepaid overnight courier, to the parties at the addresses set forth below (or such other addresses as shall be specified by the parties by like notice):
10. Applicable Law; Submission to Jurisdiction . This Agreement shall be construed in accordance with the laws and decisions of
the State of Illinois in the same manner applicable to contracts made and to be performed entirely within the State of Illinois and without regard to the conflict of law provisions thereof. Executive and the Company agree to submit himself and itself, as applicable, to the non-exclusive general jurisdiction of any United States federal or Illinois state court sitting in Chicago, Illinois and appellate courts thereof, in any legal action or proceeding relating to this Agreement or Executive’s employment with the Company.
11. Nonalienation . The interests of the Executive under this Agreement are not subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors of the Executive or the Executive’s beneficiary.
12. Amendment . This Agreement may be amended or cancelled only by mutual agreement of the parties in writing without the consent of any other person.
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In the case of Executive to: Daniel Huberty
18814 Rusty Anchor Court
Humble, Texas 77346
In the case of the Company to:
Standard Parking Corporation
900 North Michigan Avenue
Suite 1600
Chicago, Illinois 60611
Attention: General Counsel
13. Waiver of Breach . No waiver by any party hereto of a breach of any provision of this Agreement by any other party, or of
compliance with any condition or provision of this Agreement to be performed by such other party, will operate or be construed as a waiver of any subsequent breach by such other party or any similar or dissimilar provisions and conditions at the same or any prior or subsequent time. The failure of any party hereto to take any action by reason of such breach will not deprive such party of the right to take action at any time while such breach continues.
14. Successors . This Agreement shall be binding upon, and inure to the benefit of, the Company and its successors and assigns and upon any person acquiring, whether by merger, consolidation, purchase of assets or otherwise, of all or substantially all of the Company’s assets and business. The Executive’s duties hereunder are personal and may not be assigned.
15. Entire Agreement . Except as otherwise noted herein, this Agreement, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, either oral or in writing, if any, between the parties, including the Executive’s employment agreement with Central Parking System, relating to the subject matter hereof.
16. Acknowledgement by Executive . The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a livelihood following the Date of Termination.
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17. Compliance with Section 409A. Payments under Sections 5 and 6 shall be paid or provided only at the time of a termination
of the Executive’s employment that constitutes a “separation from service” within the meaning of Section 409A of the Internal Revenue Code (the “Code”). Further, if the Executive is a “specified employee” as such term is defined under Section 409A of the Code, any payments described in Section 5 or Section 6 shall be delayed for a period of six (6) months following the Executive’s separation from service to the extent and up to an amount necessary to ensure such payments are not subject to penalties and interest under Section 409A of the Code, and shall thereafter be paid for the duration set forth in Section 5 or Section 6.
IN WITNESS WHEREOF, the Executive and the Company have executed this Agreement as of the day and year first written above.
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STANDARD PARKING CORPORATION
By: /s/ James A. Wilhelm
James A. Wilhelm
President and Chief Executive Officer
EXECUTIVE:
/s/ Daniel Huberty
Daniel Huberty
Exhibit 10.9
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) by and between Standard Parking Corporation, a Delaware corporation (the “Company”) and Rob Toy (the “Executive”), dated as of September 10, 2012.
RECITALS
A. The Company is in the business of providing an array of commercial and residential property management services, including,
operating private and public parking facilities for itself, its subsidiaries, affiliates and others, and as a consultant and/or manager for parking facilities operated by others throughout the United States and Canada, providing on-street and off-street parking enforcement, residential and commercial property management services, security services for commercial establishments and airport and urban transportation services (the Company and its subsidiaries and affiliates and other Company-controlled businesses engaged in parking garage management (in each case including their predecessor’s or successor’s) are referred to hereinafter as the “Parking Companies”).
B. The Company has entered into an Agreement and Plan of Merger (the “Merger Agreement”) dated February 28, 2012, with KPCP Holdings pursuant to which, at the Effective Time (as defined in the Merger Agreement), the Company will be the parent corporation in the Merger (as defined in the Merger Agreement).
C. In order to protect the Company’s confidential information, goodwill and customer relationships; induce the Executive to serve as the Executive Vice President of Operations of the Company following the Merger; and as a material element of the merger transaction, the Company desires to provide the Executive with consideration and benefits on the terms set forth in this Agreement in exchange for the obligations herein.
D. The Executive is willing to accept such employment and perform services for the Company on the terms and conditions set
forth in this Agreement. NOW, THEREFORE, in consideration of: (i) the foregoing premises, (ii) the mutual covenants and agreements herein contained and/or
(iii) the salary continuation payment payable on termination, the Company and Executive hereby covenant and agree as follows:
1. Employment Period . This Agreement shall become effective as of the Closing Date (as defined in the Merger Agreement) (the “Effective Date”) and, except as otherwise expressly set forth in this Agreement, shall be of no force or effect prior to such date, of in the event the Merger Agreement is terminated prior to the consummation of the Merger.
The Company shall employ the Executive, and the Executive shall serve the Company, on the terms and conditions set forth in this
Agreement, for a period commencing on the Effective Date ending one (1) year thereafter (the “Employment Period”). The Employment Period shall automatically extend for additional terms of one (1) year each (individually referred to as a “Renewal Period” and in the plural as the “Renewal Periods”) unless the Company or Executive shall have given notice in writing of their intention not to renew the Agreement not
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less than one hundred eighty (180) days prior to the expiration of the Employment Period or any applicable Renewal Period. The Employment Period, as extended by one or more Renewal Periods, shall hereinafter be deemed to be the Employment Period. Notwithstanding any such termination, all of the terms and provisions set forth in paragraph 6 of this Agreement shall remain in full force and effect.
2. Position and Duties . During the Employment Period, the Executive shall serve as the Executive Vice President of Operations
of the Company, with the duties, authority and responsibilities as are commensurate with such position and as are customarily associated with such position. Executive shall hold such other positions in the Company or any of the other Parking Companies as may be assigned to him from time to time by the Chief Executive Officer of the Company or his designee. The Executive shall report directly to the Chief Executive Officer of the Company or as otherwise directed by the Chief Executive Officer. During the Employment Period, and excluding any periods of vacation and sick leave to which the Executive is entitled, the Executive shall devote full attention and time during normal business hours to the business and affairs of the Company and, to the extent necessary to discharge the responsibilities assigned to the Executive under this Agreement, use the Executive’s reasonable best efforts to carry out such responsibilities faithfully and efficiently. The Executive shall not, during the term of this Agreement, engage in any other business activities that will interfere with the Executive’s employment pursuant to this Agreement, it being agreed that the Executive may engage in, and may retain any fees payable as a result of, speaking or writing activities or service as a director of a non-competing company (provided, however, that the Executive’s acceptance of any such directorship shall be subject to the prior approval of the Company’s Chief Executive Officer) so long as such engagements do not interfere with Executive’s employment and duties pursuant to this Agreement. Executive shall discharge his duties and responsibilities under this Agreement in accordance with the Company’s Code of Conduct presently in effect or as amended and modified from time to time hereafter.
3. Compensation .
(a) Base Salary . Commencing as of the Effective Date, the Executive shall receive base salary at the annual rate of Three Hundred Seventy Four Thousand Four Hundred Dollars ($374,400) (the “Annual Base Salary”). The Annual Base Salary shall be payable in accordance with the Company’s normal payroll practice for executives as in effect from time to time, and shall be subject to review annually in accordance with the Company’s review policies and practices for executives as in effect at the time of any such review. At no time during the Employment Period shall the Annual Base Salary be reduced below the base salary in effect as of the Effective Date (the “Base Minimum Salary”) except (i) for Cause (as defined in paragraph 4(b) below), or (ii) the Executive’s duties and responsibilities have been reduced at the Executive’s request.
(b) Bonus . For the 2013 calendar year, and each subsequent calendar year ending during the Employment Period, the
Executive shall be eligible to receive an annual bonus (the “Annual Bonus”) based upon terms and conditions of an annual bonus program established for the Executive by the Company (the “Annual Bonus Program”). It currently is expected that the Annual Bonus will be paid in the month of April following the calendar year in which the Annual Bonus is earned. In all events, the Executive’s target Annual Bonus (the “Target Annual Bonus”) throughout the Employment Period will be not less than One Hundred Fifty Thousand
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Dollars ($150,000) per calendar year, with the actual amount of the Annual Bonus being determined in relation to the Target Annual Bonus in accordance with the terms of the Annual Bonus Program as approved annually by the Compensation Committee of the Board of Directors.
(c) Equity Plan . In the event the Company adopts an equity plan or program (the “Equity Plan”) calling for periodic
grants for its key executives during the term of this Agreement, the Executive shall be entitled to participate in the Equity Plan on a similar basis as similarly situated executives of the Company from and after the effective date thereof in accordance with the terms and conditions of the Equity Plan.
(d) Other Benefits . In addition to the foregoing, during the Employment Period: (i) the Executive shall be entitled to
participate in savings, retirement, and fringe benefit plans, practices, policies and programs of the Company as in effect from time to time, including, but not limited to the Company’s 401(k) plan, the Non-Qualified Deferred Compensation (NQDC) program on the same terms and conditions as those applicable to peer executives; (ii) the Executive shall be entitled to four (4) weeks of annual vacation, to be taken in accordance with the Company’s vacation policy as in effect from time to time; and (iii) the Executive and the Executive’s family shall be eligible for participation in, and shall receive all benefits under group medical, disability and other welfare benefit plans, practices, policies and programs provided by the Company, as in effect from time to time, on the same terms and conditions as those applicable to peer executives.
(e) Business Expenses . Executive shall be reimbursed by the Company for those business expenses authorized by the
Company and those for which are necessarily and reasonably incurred on behalf of the Company and which may be properly be deducted by the Company as business expenses for federal tax purposes.
4. Termination of Employment .
(a) Death or Disability . In the event of the Executive’s death during the Employment Period, the Executive’s
employment with the Company shall terminate automatically. The Company, in its discretion, shall have the right to terminate the Executive’s employment because of the Executive’s Disability during the Employment Period. For purposes of this Agreement, “Disability” shall mean the absence of the Executive from the Executive’s duties with the Company on a full-time basis for 180 consecutive business days, or for periods aggregating 180 business days in any period of twelve months, as a result of incapacity due to mental or physical illness or injury which is determined to be total and permanent by a physician selected by the Company or its insurers. A termination of the Executive’s employment by the Company for Disability shall be communicated to the Executive by written notice, and shall be effective on the 30th day after receipt of such notice by the Executive (the “Disability Effective Date”), unless the Executive returns to full-time performance of the Executive’s duties before the Disability Effective Date.
(b) By the Company . In addition to termination for Disability, the Company may terminate the Executive’s
employment during the Employment Period for Cause or without Cause. “Cause” means: 3
(i) the continued and willful or deliberate failure of the Executive to substantially perform the Executive’s
duties, or to comply with the Executive’s obligations, under this Agreement (other than as a result of physical or mental illness or injury); or (ii) illegal acts or misconduct by the Executive, in either case that is willful and results in material damage to
the business or reputation of the Company.
Upon the occurrence of events constituting Cause as defined in subsection (i) of this paragraph 4(b), the Company shall give the Executive advance notice of any such termination for Cause and shall provide the Executive with a reasonable opportunity to cure.
(c) Voluntarily by the Executive . The Executive may terminate his employment by giving written notice thereof to the Company, provided, however, that if Executive terminates his employment for Good Reason, such termination shall not be considered a voluntary termination by Executive and Executive shall be treated as if he had been terminated by the Company pursuant to paragraph 5(a) below. “Good Reason” means any of the following:
(i) a reduction in the Executive’s Annual Base Salary, which is not accompanied by a similar reduction in
annual base salaries of similarly situated executives of the Company (provided, however, that in no event shall the Executive’s Annual Base Salary be reduced to less than the Base Salary Minimum unless permitted by paragraph 3(a) above); or
(ii) a reduction in the Executive’s opportunity to earn an Annual Bonus under the Annual Bonus Plan; or
(iii) a breach by the Company of this Agreement after Executive has given to the Company advance written
notice of, and a reasonable opportunity to cure, any such breach.
(d) Date of Termination . The “Date of Termination” means the date of the Executive’s death, the Disability Effective Date, the date on which the termination of the Executive’s employment by the Company for Cause, as set forth in notice from the Company, is effective, the date that notice of termination is provided to the Executive from Company of a termination of the Executive’s employment by the Company other than for Cause or Disability, or the date on which the Executive gives the Company notice of termination of employment, as the case may be.
5. Obligations of the Company upon Termination .
(a) By the Company Other Than for Cause or Disability . If, during the Employment Period, the Company terminates the Executive’s employment, other than for Cause or Disability, the Company shall pay the Executive for any accrued but unused vacation as of the Date of Termination, and in addition shall, throughout the duration of the Employment Period:
(i) continue to pay the Executive the Annual Base Salary and the Annual Bonus as in effect immediately before the
Date of Termination, as and when such amounts would be paid in accordance with paragraphs 3(a) and (b) above, provided the amount of any Annual Bonus so paid shall equal the Target Annual Bonus,
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(ii) continue to provide health (medical and dental) benefits to the Executive and the Executive’s family, at least as
favorable as those that would have been provided to them under clause (d)(iii) of paragraph 3 above if the Executive’s employment had continued until the end of the Employment Period, provided, that during any period when the Executive is eligible to receive such welfare benefits under another employer-provided plan, the benefits provided by the Company pursuant to clause (iii) of this paragraph 5(a) may be made secondary to those provided under such other plan.
(b) Death . If the Executive’s employment is terminated by reason of the Executive’s death during the Employment
Period, the Company shall make, within thirty (30) days after the Date of Termination, a lump-sum cash payment to the Executive’s estate equal to the sum of (i) the Executive’s Annual Base Salary through the end of the calendar month in which death occurs, (ii) any earned and unpaid Annual Bonus for any calendar year ended prior to the Date of Termination and a prorated Target Bonus for services rendered in the year of death up to the Date of Termination, (iii) any accrued but unpaid vacation pay through the end of the calendar month in which death occurs, and (iv) any other vested benefits to which the Executive is entitled, in each case to the extent not yet paid, except for any death benefit, in which case the death benefit shall be paid to Executive’s estate within seven (7) days following receipt of any such death benefit by the Company from the insurer.
(c) Disability . In the event the Executive’s employment is terminated by reason of the Executive’s Disability during the
Employment Period in accordance with paragraph 4(a) hereof, the Company shall pay to the Executive or the Executive’s legal representative, as applicable, for the duration of the Employment Period (i) the Executive’s Annual Base Salary at the rate in effect immediately preceding the Date of Termination, provided that any such payments made to the Executive shall be reduced by the sum of the amounts, if any, payable to the Executive under any disability benefit plans of the Company or under the Social Security disability insurance program, (ii) any earned and unpaid Annual Bonus for any calendar year ended prior to the Date of Termination and a prorated Target Bonus for services rendered in the calendar year in which the Date of Termination occurs, and (iii) any other vested benefits to which the Executive is entitled, in each case to the extent not yet paid, including, but not limited to accrued but unpaid vacation pay. The Annual Base Salary and bonus payments to me made under this paragraph 5(c) shall be made as and when such amounts would be paid in accordance with paragraphs 3(a) and (b) above.
(d) Cause; Voluntary Termination: If the Executive’s employment is terminated by the Company for Cause or the
Executive voluntarily terminates his employment during the Employment Period (other than for “Good Reason”), the Company shall pay the Executive (i) the Annual Base Salary through the Date of Termination, (ii) the Annual Bonus for any calendar year ended prior to the Date of Termination, and (iii) any other vested benefits to which the Executive is entitled, in each case to the extent not yet paid, including but not limited to accrued but unpaid vacation pay, and the Company shall have no further obligations to the Executive under this Agreement.
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6. Protection of Company Assets .
(a) Trade Secret and Confidential Information . The Executive recognizes and acknowledges that the acquisition and
operation of, and the providing of consulting services for, parking facilities is a unique enterprise and that there are relatively few firms engaged in these businesses in the primary areas in which the Parking Companies operate. The Executive further recognizes and acknowledges that in exchange for his or her employment with the Parking Companies, the Executive has been given access to and provided with and will continue to be provided with additional confidential information and trade secrets of the Parking Companies that constitute proprietary information that the Parking Companies are entitled to protect, which information constitutes special and unique assets of the Parking Companies, which is not generally available to the public , including without limitation (i) information relating to the Parking Companies’ manner and methods of doing business, including without limitation, strategies for negotiating leases and management agreements; (ii) the identity of the Parking Companies’ clients, customers, prospective clients and customers, lessors and locations, and the identity of any individuals or entities having an equity or other economic interest in any of the Parking Companies to the extent such identity has not otherwise been voluntarily disclosed by any of the Parking Companies; (iii) the specific confidential terms of management agreements, leases or other business agreements, including without limitation the duration of, and the fees, rent or other payments due thereunder; (iv) the identities of beneficiaries under land trusts; (v) the business, developments, activities or systems of the Parking Companies, including without limitation any marketing or customer service oriented programs in the development stages or not otherwise known to the general public; (vi) information concerning the business affairs of any individual or firm doing business with the Parking Companies; (vii) financial data and the operating expense structure pertaining to any parking facility owned, operated, leased or managed by the Parking Companies or for which the Parking Companies have or are providing consulting services; (viii) information pertaining to computer systems, including but not limited to computer software, used in the operation of the Parking Companies; and (ix) other confidential information and trade secrets relating to the operation of the Company’s business (the matters described in this sentence are referred to herein as “Trade Secret and Confidential Information”).
(b) Customer Relationships . The Executive understands and acknowledges that the Company has expended significant
resources over many years to identify, develop, and maintain its clients. The Executive additionally acknowledges that the Company’s clients have had continuous and long-standing relationships with the Company and that, as a result of these close, long-term relationships, the Company possesses significant knowledge of and confidential information about its clients and their needs. Finally, the Executive acknowledges the Executive’s association and contact with these clients is derived solely from Executive’s employment with the Company. The Executive further acknowledges that the Company does business throughout the United States and that the Executive personally has significant contact with the Company’s clients and customers solely as a result of Executive’s relationship with the Company.
(c) Confidentiality . With respect to Trade Secret and Confidential Information, and except as may be required by the
lawful order of a court or government agency of competent jurisdiction, the Executive agrees that Executive shall during his or her employment and thereafter:
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(i) hold all Trade Secret and Confidential Information in strict confidence and not publish or otherwise disclose
any portion thereof to any person whatsoever except with the prior written consent of the Company so long as such Information is not generally available to the public;
(ii) use all reasonable precautions to assure that the Trade Secret and Confidential Information are properly
protected and kept from unauthorized persons or use; (iii) make no use of any Trade Secret and Confidential Information except as is required in the performance of
Executive’s duties for the Company; and (iv) immediately upon termination of Executive’s employment with the Company, whether voluntary or
involuntary and regardless of the reason or cause, or upon the request of the Company, promptly return to the Company all Company property including, without limitation, any and all documents, and other things relating to any Trade Secret and Confidential Information, all of which are and shall remain the sole property of the Company. The term “documents” as used in the preceding sentence shall mean all forms of written or recorded information and shall include, without limitation, all accounts, budgets, compilations, computer records (including, but not limited to, computer programs, software, disks, diskettes or any other electronic or magnetic storage media), contracts, correspondence, data, diagrams, drawings, financial statements, memoranda, microfilm or microfiche, notes, notebooks, marketing or other plans, printed materials, records and reports, as well as any and all copies, reproductions or summaries thereof.
Notwithstanding the above, nothing contained herein shall restrict the Executive from using, at any time after Executive’s termination
of employment with the Company, information which is generally available to the pubic or industry.
(d) Assignment of Intellectual Property Rights . The Executive agrees to assign to the Company any and all intellectual property rights including patents, trademarks, copyright and business plans or systems developed, authored or conceived by the Executive while so employed and relating to the business of the Company, and the Executive agrees to cooperate with the Company’s attorneys to perfect ownership rights thereof in the Company or any one or more of the Company. This agreement does not apply to an invention for which no equipment, supplies, facility or Trade Secret and Confidential Information of the Company was used and which was developed entirely on the Executive’s own time, unless (i) the invention relates either to the business of the Company or to actual or demonstrably anticipated research or development of the Parking Companies, or (ii) the invention results from any work performed by the Executive for the Parking Companies.
(e) Non-Compete . Executive agrees that while employed by the Company and for a period of twenty-four (24) months after his or her Date of Termination for any reason, Executive will not directly or indirectly without first obtaining the express written permission of the Employer’s General Counsel, which permission may be withheld in the Employer’s sole discretion:
(i) conduct business with any client or customer of the Company with 7
which Executive had any direct contact or responsibility within the twelve months preceding the Date of Termination or about whom Executive acquired any Trade Secret or Confidential Information during his or her employment with the Company; or
(ii) become employed by or render services to any competitor of the Company whether a person, partnership,
joint venture, consulting firm or other business, if in so doing the Executive duties would involve any level of strategic advisory, technical, sales, customer, client marketing, or other consulting functions competitive with the Company in the parking, transportation, and facility management services business
(f) Non-Solicitation . The Executive agrees that while he or she is employed by the Company and for a period of
twenty-four (24) months after the Date of Termination, the Executive shall not, directly or indirectly:
(i) without first obtaining the express written permission of the Company’s General Counsel, which permission may be withheld solely in the Company’s discretion, directly or indirectly contact or solicit business from any client or customer of the Company with whom the Executive had direct contact or responsibility or about whom the Executive acquired any Trade Secret or Confidential Information during his employment with the Company. Likewise, the Executive shall not, without first obtaining the express written permission of the Company’s General Counsel which permission may be withheld solely in the Company’s discretion, directly or indirectly contact or solicit business from any person responsible for referring business to the Company or who regularly refers business to the Company with whom the Executive had any direct contact or about whom the Executive acquired any Trade Secret or Confidential Information during his employment with the Company; or
(ii) take any action to hire, recruit or to directly or indirectly assist in the hiring, recruiting or solicitation for
employment of any officer, employee or representative of the Parking Companies who possesses Trade Secret and Confidential Information of the Company.
If the Executive, after the termination of his or her employment hereunder, has any question regarding the applicability of the above
provisions to a potential employment opportunity, the Executive acknowledges that it is his or her responsibility to contact the Company so that the Company may inform the Executive of its position with respect to such opportunity. The Executive agrees that the non-compete period set forth in Section 6(e) above shall be tolled, and shall not run, during any period of time in which he is in violation of the terms thereof, so that the Company shall have al of the agreed-upon temporal protections recited therein.
(g) Salary Continuation Payments . As additional consideration for the representation and restrictions contained in this
paragraph 6, if (i) the termination of Executive’s employment occurs prior to the expiration of the Employment Period for any reason other than Death, Disability, Cause or the Executive’s Voluntary Termination, or (ii) the Company gives a written notice of non-renewal of the Employment Period as provided in paragraph 1 above such
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that the Employment Period will terminate prior to the tenth (10 ) anniversary of its commencement, then the Company agrees to pay Executive amounts which, when combined with all amounts payable by the Company pursuant to either clause (i) of paragraph 5(a) above or clauses (i) and (ii) of paragraph 5(c) above, will total Executive’s Annual Base Salary and Target Annual Bonus as in effect immediately preceding the Date of Termination for a period of twenty-four (24) months following the Date of Termination (the “Salary Continuation Payments”). The Salary Continuation Payments shall be payable as and when such amounts would be paid in accordance with paragraph 3(a) and (b) above. If (i) the Company terminates the Executive’s employment for Cause, due to Executive’s Disability, or by giving written notice of non-renewal of the Employment Period as provided in paragraph 1 above such that the Employment Period will terminate on or after the tenth (10 ) anniversary of its commencement, or (ii) the Executive gives notice of his or her Voluntary Termination, then the Salary Continuation Payments shall be the total of (x) any and all amounts due the Executive by reason of and in accordance with the provisions of paragraph 5(d) above, payable as provided therein, plus (y) the sum of $50,000, payable (a) in the event of a termination by the Company under clause (i) of this sentence, over a twelve-month period following the Date of Termination, in eleven (11) equal monthly installments of $1,000.00, followed by a twelfth and final monthly payment in the amount of $39,000, or (b) in the event of a termination by the Executive under clause (ii) of this sentence, over a six-month period beginning on the first day of the seventh month following the Date of Termination, in five (5) equal monthly installments of $2,000, followed by a sixth and final monthly payment in the amount of $40,000. If the Executive breaches this Agreement at any time during the period in which payments are being made hereunder, the Company’s obligation to make any additional Salary Continuation Payments shall immediately cease, and the Executive shall immediately return to the Company all Salary Continuation Payments paid up to that time to the extent they exceeded $1,000.00. The termination of Salary Continuation Payments shall not waive any other rights at law or equity which the Company may have against Executive by virtue of his breach of this Agreement. The Company’s obligation to make Salary Continuation Payments shall cease with respect to periods after Executive’s death.
(h) Remedies . The Executive acknowledges that the Company would be irreparably injured by a violation of the covenants of this paragraph 6 and agrees that the Company, or any one or more of the Parking Companies, in addition to any other remedies available to it or them for such breach or threatened breach, shall be entitled to a preliminary injunction, temporary restraining order, or other equivalent relief in a court of law or through arbitration, restraining the Executive from any actual or threatened breach of any of the provisions of this paragraph 6. In the event any violation of paragraph 6 of this Agreement is determined by a tribunal of competent jurisdiction, the period of non-competition and/ or non-solicitation shall be extended by a period of time equal to that period beginning when such violation commenced and ending when the activities constituting such violation shall have terminated. If a bond is required to be posted in order for the Company or any one or more of the Company to secure an injunction or other equitable remedy, the parties agree that said bond need not exceed a nominal sum. This paragraph shall be applicable regardless of the reason for the Executive’s termination of employment, and independent of any alleged action or alleged breach of any provision hereby by the Company. If at any time any of the provisions of this paragraph 6 shall be determined to be invalid or unenforceable by reason of being vague or
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unreasonable as to duration, area, scope of activity or otherwise, then this paragraph 6 shall be considered divisible (with the other provisions to remain in full force and effect) and the invalid or unenforceable provisions shall become and be deemed to be immediately amended to include only such time, area, scope of activity and other restrictions, as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter, and the Executive expressly agrees that this Agreement, as so amended, shall be valid and binding as though any invalid or unenforceable provision had not been included herein.
7. Incorporation of Recitals . The Recitals set forth above are hereby incorporated as material terms of this Agreement.
8. Severability . The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement, and this Agreement will be construed as if such invalid or unenforceable provision were omitted (but only to the extent that such provision cannot be appropriately reformed or modified).
9. Notices . Any notice which any party shall be required or shall desire to serve upon the other shall be in writing and shall be delivered personally or sent by registered or certified mail, postage prepaid, or sent by facsimile or prepaid overnight courier, to the parties at the addresses set forth below (or such other addresses as shall be specified by the parties by like notice):
10. Applicable Law; Submission to Jurisdiction . This Agreement shall be construed in accordance with the laws and decisions of
the State of Illinois in the same manner applicable to contracts made and to be performed entirely within the State of Illinois and without regard to the conflict of law provisions thereof. Executive and the Company agree to submit himself and itself, as applicable, to the non-exclusive general jurisdiction of any United States federal or Illinois state court sitting in Chicago, Illinois and appellate courts thereof, in any legal action or proceeding relating to this Agreement or Executive’s employment with the Company.
11. Nonalienation . The interests of the Executive under this Agreement are not subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment by creditors of the Executive or the Executive’s beneficiary.
12. Amendment . This Agreement may be amended or cancelled only by mutual agreement of the parties in writing without the consent of any other person.
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In the case of Executive to: Rob Toy
11 Torrey Pines Way
Brentwood, Tennessee 37027
In the case of the Company to:
Standard Parking Corporation
900 North Michigan Avenue
Suite 1600
Chicago, Illinois 60611
Attention: General Counsel
13. Waiver of Breach . No waiver by any party hereto of a breach of any provision of this Agreement by any other party, or of
compliance with any condition or provision of this Agreement to be performed by such other party, will operate or be construed as a waiver of any subsequent breach by such other party or any similar or dissimilar provisions and conditions at the same or any prior or subsequent time. The failure of any party hereto to take any action by reason of such breach will not deprive such party of the right to take action at any time while such breach continues.
14. Successors . This Agreement shall be binding upon, and inure to the benefit of, the Company and its successors and assigns and upon any person acquiring, whether by merger, consolidation, purchase of assets or otherwise, of all or substantially all of the Company’s assets and business. The Executive’s duties hereunder are personal and may not be assigned.
15. Entire Agreement . Except as otherwise noted herein, this Agreement, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, either oral or in writing, if any, between the parties, including the Executive’s employment agreement with Central Parking System, relating to the subject matter hereof.
16. Acknowledgement by Executive . The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a livelihood following the Date of Termination.
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17. Compliance with Section 409A. Payments under Sections 5 and 6 shall be paid or provided only at the time of a termination
of the Executive’s employment that constitutes a “separation from service” within the meaning of Section 409A of the Internal Revenue Code (the “Code”). Further, if the Executive is a “specified employee” as such term is defined under Section 409A of the Code, any payments described in Section 5 or Section 6 shall be delayed for a period of six (6) months following the Executive’s separation from service to the extent and up to an amount necessary to ensure such payments are not subject to penalties and interest under Section 409A of the Code, and shall thereafter be paid for the duration set forth in Section 5 or Section 6.
IN WITNESS WHEREOF, the Executive and the Company have executed this Agreement as of the day and year first written above.
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STANDARD PARKING CORPORATION
By: /s/ James A. Wilhelm
James A. Wilhelm
President and Chief Executive Officer
EXECUTIVE:
/s/ Rob Toy
Rob Toy
Exhibit 31.1
CERTIFICATION PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, James A. Wilhelm, certify that: 1. I have reviewed this Form 10-Q of Standard Parking Corporation; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) ) for the registrant and have:
a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and d. Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most
recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial
reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal
control over financial reporting.
Date: November 9, 2012
By: /s/ JAMES A. WILHELM
James A. Wilhelm,
Director, President and Chief Executive Officer
(Principal Executive Officer)
Exhibit 31.2
CERTIFICATION PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, G. Marc Baumann, certify that: 1. I have reviewed this Form 10-Q of Standard Parking Corporation; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and d. Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most
recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial
reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal
control over financial reporting.
Date: November 9, 2012
By: /s/ G. MARC BAUMANN
G. Marc Baumann,
Chief FinancialOfficer, Treasurer & President of Urban Operations
(Principal Financial Officer)
Exhibit 31.3
CERTIFICATION PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Daniel R. Meyer, certify that: 1. I have reviewed this Form 10-Q of Standard Parking Corporation; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material
respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our
supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and d. Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most
recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial
reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal
control over financial reporting.
Date: November 9, 2012
By: /s/ DANIEL R. MEYER
Daniel R. Meyer,
Senior Vice President Corporate Controller
and Assistant Treasurer
(Principal Accounting Officer and Duly
Authorized Officer)
Exhibit 32.1
Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Form 10-Q of Standard Parking Corporation (the “Company”) for the quarter ended September 30, 2012, as filed with
the Securities and Exchange Commission on the date hereof (the “Report”), each of the undersigned certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, to the best of their knowledge and belief, that:
1) the Report fully complies with the requirements of Sections 13(a) or 15(d) of the Securities and Exchange Act of 1934, as amended; and 2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the
Company.
This certification shall not be deemed “filed” for purposes of Section 18 of the Securities and Exchange Act of 1934, or the Exchange Act, or
otherwise subject to the liability of Section 18 of the Exchange Act. Such certification shall not be deemed to be incorporated by reference into any filing under the Securities Act of 1933 or the Exchange Act, except to the extent that the Company specifically incorporates it by reference.
Date: November 9, 2012
By: /s/ JAMES A. WILHELM
Name: James A. Wilhelm
Title: Director, President and Chief Executive
Officer (Principal Executive Officer) Date: November 9, 2012
By: /s/ G. MARC BAUMANN
Name: G. Marc Baumann
Title: Chief Financial Officer, Treasurer & President of
Urban Operations
(Principal Financial Officer) Date: November 9, 2012
