Unassociated Document


    
       

      Execution
Version

       

      SECOND
AMENDMENT TO FORBEARANCE AGREEMENT

       

      This
SECOND AMENDMENT TO FORBEARANCE
AGREEMENT (this “Amendment”) is dated and effective as of October
15, 2009, by and among PARKING
COMPANY OF AMERICA AIRPORTS, LLC (“PCAA”), PARKING COMPANY OF AMERICA AIRPORTS
PHOENIX, LLC (“PCAA Phoenix”), PCAA SP, LLC (“PCAA SP”), and PCA AIRPORTS, LTD. (“PCAA Texas” and, together with PCAA,
PCAA Phoenix, and PCAA SP, individually and collectively as the context
requires, the “Borrowers”), PCAA PARENT, LLC, a Delaware
limited liability company (the “Guarantor”), DEKABANK DEUTSCHE GIROZENTRALE, in
its capacity as holder of Note A-1 (“Deka”), DEUTSCHE HYPOTHEKENBANK AG, in its
capacity as holder of Note A-2 (“Hypo”), and ING REAL ESTATE FINANCE (USA) LLC,
in its capacity as holder of Note A-3 (“ING” and together with Deka and
Hypo, the “Note A
Co-Lenders”), CAPMARK FINANCE, INC.,
in its capacity as holder of Note B-1 (“CFI”), CAPMARK STRUCTURED REAL ESTATE, LTD.,
in its capacity as holder of Note B-2 (“CSRE” and together with CFI, the
“Note B Co-Lenders”) (the Note A Co-Lenders and the Note
B Co-Lenders collectively, the “Lenders”), ING REAL ESTATE FINANCE (USA) LLC,
in its capacity as agent for the Note A Co-Lenders (the “Note A Agent”) and in its capacity as
administrative agent (the “Administrative Agent”) and CAPMARK FINANCE, INC., in its
capacity as agent for the Note B Co-Lenders (“Note B Agent” and together
with the Note A Agent and the Administrative Agent, the “Agents”).

       

      RECITALS

       

      WHEREAS,
the parties hereto are parties to that certain Forbearance Agreement dated as of
June 10, 2009 (the “Forbearance
Agreement”) as amended August
30, 2009 by the First Amendment thereto (the “First Amendment”); and

       

      WHEREAS,
the parties hereto desire to amend the Forbearance Agreement in certain respects
as provided herein;

       

      NOW,
THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:

       

      SECTION
1. Defined
Terms. Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Forbearance Agreement, as amended by this
Amendment and the First Amendment.

       

      SECTION
2. Amendment to
Forbearance Agreement. The definition of “Expiration Date” in Section 1.1
of the Forbearance Agreement, as amended by Section 2.2 of the First Amendment,
is hereby deleted in its entirety and replaced with the following:

       

      “’Expiration Date’ shall mean
November 6, 2009.”

       

      SECTION
3. Representations and
Warranties. As of the date first written above, all representations and
warranties of each of Borrowers and the Guarantor contained in the Forbearance
Agreement, as amended hereby, are true and correct in all material respects and
each such party hereby confirms as to itself each such representation and
warranty made by it or him with the same effect as if set forth in full
herein.


      
        
           


        

        
          
          

          
            

          

        

        
           


        

      


      SECTION
4. No
Modification. No provision of this Amendment may be modified, amended,
waived or extended except by an agreement in writing signed by all of the
parties hereto.

       

      SECTION
5. Counterparts. This
Amendment may be executed by the parties hereto in any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.

       

      SECTION
6. Successors and
Assigns. This Amendment shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and
assigns.

       

      SECTION
7. GOVERNING
LAW. THIS AMENDMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL, IN ALL
RESPECTS, BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE
NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING, TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, ALL OTHER CONFLICTS OF LAWS PRINCIPLES AND CHOICE OF LAW
RULES OF THE STATE OF NEW YORK.

       

      SECTION
8. Miscellaneous. Upon
the effectiveness of this amendment, each reference in the Forbearance Agreement
to “this Agreement”, “hereunder”, “hereof, “herein”, or words of like import
shall mean and be a reference to the Forbearance Agreement as amended hereby and
by the First Amendment, and each reference to the Forbearance Agreement in any
other document, instrument or agreement executed and/or delivered in connection
with the Forbearance Agreement shall mean and be a reference to the Forbearance
Agreement as amended hereby and by the First Amendment. Except as specifically
amended above and by the First Amendment, the Forbearance Agreement and all
other documents, instruments and agreements executed and/or delivered in
connection therewith shall remain in full force and effect and are hereby
ratified and confirmed.

       

      SECTION
9. Release. The
Borrower and the Guarantor hereby release, waive, and forever relinquish all
claims, demands, obligations, liabilities and causes of action of whatever kind
or nature, whether known or unknown, which any of them have, may have, or might
assert at the time of execution of this Amendment or in the future against the
Agent, the Lenders and/or their respective parents, affiliates, participants,
officers, directors, employees, agents, attorneys, accountants, consultants,
successors and assigns, directly or indirectly, which occurred, existed, was
taken, permitted or begun prior to the execution of this Amendment, arising out
of, based upon, or in any manner connected with (i) any transaction, event,
circumstance, action, failure to act or occurrence of any sort or type, whether
known or unknown, with respect to the Loan Agreement, any other Loan Document
and/or the administration thereof or the Obligations created thereby; (ii) any
discussions, commitments, negotiations, conversations or communications with
respect to the refinancing, restructuring or collection of any Obligations
related to the Loan Agreement, any other Loan Document and/or the administration
thereof or the Obligations created thereby or (iii) any matter related to the
foregoing, in each case, prior to the execution of this Amendment.

       

      [Signature
pages attached]


      
        
           


        

        
          2

          
            

          

        

        
           


        

      

       

      IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their proper and duly authorized officers as of the
date first above written.

       

      borrowers:

      


      
        
          	
                  parking
      company of america

                	 
      	
                  parking
      company of america

                
	
                  airports,
      LLC, a
      Delaware limited liability

                	 
      	
                  airports
      phoenix, LLC, a
      Delaware limited

                
	
                  company

                	 
      	
                  liability
      company

                
	 
      	 
      	 
      
	
                  By: PCAA Parent, LLC, a
      Delaware limited

                	 
      	
                  By:
      PCAA Parent, LLC, a
      Delaware limited

                
	
                  liability
      company, its sole member

                	 
      	
                  liability
      company, its sole
      member

                


        

      

      


      
        
          
            
              
                
                  
                    	 	
                            By:

                          	/s/ Charles
      Huntzinger	 
      	 
      	
                            By:

                          	/s/
      Charles Huntzinger	 
      
	 	 
      	
                            Name:
      Charles Huntzinger

                          	 
      	 
      	
                            Name: Charles
      Huntzinger

                          
	 	 
      	
                            Title:
      Chief Executive
      Officer

                          	 
      	 
      	
                            Title:
      Chief Executive
      Officer

                          


                  

                

              

            

          

        

      

      


      
        
          	
                  State
      Identification Number: 3561583

                	 
      	
                  State
      Identification Number: 3561638

                
	
                  Tax
      Identification Number: 55-0799249

                	 
      	
                  Tax
      Identification Number:
73-1678343

                


        

      

      


      
        
          	
                  pcaa
      sp, LLC, a
      Delaware limited liability

                	 
      	
                  pca
      airports, ltd, a Texas limited

                
	
                  company

                	 
      	
                  partnership

                
	 
      	 
      	 
      
	
                  By: PCAA Parent, LLC, a
      Delaware limited

                	 
      	
                  By: PCAA GP, LLC, a
      Delaware limited liability

                
	
                  liability
      company, its sole member

                	 
      	
                  company, its general
      partner

                


        

      

      


      
        
          
            
              
                
                  
                    	 	 
      	 
      	
                            By:
      PCAA Parent, LLC, a
      Delaware limited

                          
	 	
                            By:

                          	/s/
      Charles Huntzinger	 
      	
                            liability
      company, its sole
      member

                          
	 	 
      	
                            Name:
      Charles Huntzinger

                          	 
      	 
      
	 	 
      	
                            Title:
      Chief Executive Officer

                          	 
      


                  

                

              

            

          

        

      

      


      
        
          
            
              
                
                  	 
      	 
      	
                          By:

                        	/s/
      Charles Huntzinger	 
      
	
                          State
      Identification Number: 4005464

                        	 
      	 
      	
                          Name:
      Charles Huntzinger

                        
	
                          Tax
      Identification Number: 20-3223465

                        	 
      	 
      	
                          Title:
      Chief Executive
Officer

                        


                

              

            

          

        

      

      


      
        
          	 
      	 
      	
                  State
      Identification Number: 800143785

                
	 
      	 
      	
                  Tax
      Identification Number:
73-167348

                


        

      


      
        
           


        

        
          S-1

          
            

          

        

        
           


        

      

      
        

          GUARANTOR:

          
            
              
                	 
      	
                        PCAA PARENT, LLC,  a Delaware limited liability
      company

                      
	 
      	 
      
	 
      	
                        By: 

                      	/s/
      Charles Huntzinger	 
      
	 
      	 
      	
                        Name:
      Charles Huntzinger

                      
	 
      	 
      	
                        Title:
      Chief Executive Officer

                      


              

            

          


          
            
               


            

            
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                                  NOTE
      A AGENT AND LENDER:

                                
	 
      	 
      
	 
      	
                                  ING
      REAL ESTATE FINANCE (USA) LLC

                                
	 
      	 
      	 
      
	 
      	
                                  By:

                                	/s/
      Maria D. Kastanis  	 
      
	 
      	 
      	
                                  Name: MARIA D.
      KASTANIS

                                
	 
      	 
      	
                                  Title:  
      SENIOR
      DIRECTOR

                                
	 
      	 
      	 
      
	 
      	
                                  By:

                                	/s/
      Yelena Kharnas	 
      
	 
      	 
      	
                                  Name: YELENA
    KHARNAS

                                
	 
      	 
      	
                                  Title:  
      VICE
PRESIDENT

                                


                        

                      

                    

                  

                

              

            

          

        

      


      
        
           


        

        
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                                NOTE
      A LENDERS:

                              
	 
      
	
                                DEUTSCHE
      HYPOTHEKENBANK AG

                              
	 
      
	
                                By: 

                              	
                                /s/
      Dirk Wilke

                              
	 
      	
                                Name:
      Dirk Wilke

                              
	 
      	
                                Title:
      authorized officer

                              
	 
      
	
                                By: 

                              	
                                
                                  /s/
      Frank Müller

                                

                              
	 
      	
                                Name: Frank
      Müller

                              
	 
      	
                                Title: authorized
      officer

                              
	 
	
                                DEKABANK
      DEUTSCHE GIROZENTRALE

                              
	 
      	 
      
	
                                By:

                              	 
      
	 
      	
                                Name:

                              
	 
      	
                                Title:

                              
	 
      
	
                                By: 

                              	 
      
	 
      	
                                Name:

                              
	 
      	
                                Title:

                              


                      

                    

                  

                

              

            

          

        

      

       

      
        
          
          

        

        
          S-4

          
            

          

        

        
          
          

        

      

       

      
        
          
            
              
                
                  
                    
                      	
                              NOTE
      A LENDERS:

                            
	 
      
	
                              DEUTSCHE
      HYPOTHEKENBANK AG

                            
	 
      
	
                              By: 

                            	 
      
	 
      	
                              Name:

                            
	 
      	
                              Title:

                            
	 
      
	
                              By: 

                            	 
      
	 
      	
                              Name: 

                            
	 
      	
                              Title: 

                            
	 
      
	
                              DEKABANK
      DEUTSCHE GIROZENTRALE

                            
	 
      	 
      
	
                              By:

                            	
                              /s/
      Burkhard Mau

                            
	 
      	
                              Name:
      Burkhard Mau

                            
	 
      	
                              Title:
      Executive Director

                            
	 
      
	
                              By: 

                            	
                              /s/
      Krowsbein

                            
	 
      	
                              Name:
      KROWSBEIN

                            
	 
      	
                              Title:
      SENIOR
ASSOCIATE

                            


                    

                  

                

              

            

          

        

      

       

      
        
          
          

        

        
          S-4

          
            

          

        

        
          
          

        

      

       

      
        
          
            
              
                
                  	
                          NOTE
      B AGENT AND LENDERS:

                        
	 
      
	
                          CAPMARK
      FINANCE INC.

                        
	 
      
	
                          By:

                        	
                          
                            /s/
      David Blum

                          

                        
	 
      	
                          Name:  David
      Blum

                        
	 
      	
                          Title:  Vice
      President

                        
	 
      
	
                          CAPMARK
      STRUCTURED REAL ESTATE, LTD.

                        
	 
      	 
      
	
                          By: 

                        	
                          /s/
      David Blum

                        
	 
      	
                          Name:  David
      Blum

                        
	 
      	
                          Title:  Vice
      President

                        


                

              

            

          

        

      

       

      
        
          
          

        

        
          S-5