EXHIBIT 10.7
Capmark Finance Inc.
48 Wall Street, 17th Floor
New York, New York 10005
August 8, 2006
VIA FACSIMILE
PCAA SP, LLC
Parking Company of America Airports, LLC Parking Company of America Airports
Phoenix, LLC PCA Airports, Ltd.
Attn: Mr. Nicholas Gole
c/o Macquarie Securities USA, Inc.
125 W. 55th Street
New York, NY 10019
Re: Commitment for a loan in the maximum amount of up to $195,000,000.00
(the "Loan") from Capmark Finance Inc. ("CFI") to PCAA SP, LLC, a
Delaware limited liability company, Parking Company of America
Airports, LLC, a Delaware limited liability company, Parking Company of
America Airports Phoenix, LLC, a Delaware limited liability company,
and PCA Airports, Ltd., a Texas limited partnership (collectively,
"Borrower") secured by Property located in the locations identified on
Exhibit B hereto (collectively with all other collateral for the Loan,
the "Property")
Ladies and Gentlemen,
This letter (this "Commitment Letter") will constitute the commitment
of CFI to make the Loan to Borrower, subject to (i) satisfaction of the
conditions listed on Exhibit A attached and made a part hereof, and (ii) the
terms and conditions of the Application and any amendment to the Application
attached to this Commitment Letter (the "Application"), as such terms and
conditions have been incorporated, with agreed upon modification, into the draft
loan documents previously being circulated by CFI or its counsel and/or being
circulated contemporaneously with this Commitment Letter, as such loan documents
may be amended as agreed to by the parties (the "Loan Documents").
If there is any inconsistency between the Application and the draft
Loan Documents or between this Commitment Letter and such Loan Documents, the
Loan Documents shall govern, and in the case of any inconsistency between such
draft Loan Documents and the final Loan Documents executed at the closing of the
Loan, the final, executed Loan Documents shall govern. Upon the closing of the
Loan, such final, executed Loan Documents shall
August __, 2006
Page 2
constitute the complete and integrated agreement of Borrower, CFI, any guarantor
and environmental indemnitor or any other signatory thereto with respect to the
Loan and the Property.
Notwithstanding anything contained herein to the contrary, CFI shall
have no obligation to make the Loan or any portion thereof, unless and until all
of the conditions set forth on Exhibit A attached hereto have been fully
satisfied or waived as determined by CFI in its sole and absolute discretion.
The conditions and requirements set forth on Exhibit A may expand or otherwise
supplement the conditions and requirements set forth in the Application. The
absence of any conditions, requirements or other provisions included in the
Application from those set forth in Exhibit A does not diminish, reduce or
otherwise represent a waiver of any such condition, requirement or provision
included in the Application, provided, however, that CFI expressly waives any
provisions in the Application which indicate that (i) the Loan is subject to
Committee Approval or other underwriting or credit approvals; and (ii) the
Application is not a commitment to lend.
Please sign this Commitment Letter in the space provided below
evidencing your agreement to the terms hereof. This Commitment Letter shall only
be binding upon CFI if an original counterpart hereof executed by Borrower is
received on or before 5:00 P.M. on August 8, 2006.
Sincerely,
CAPMARK FINANCE INC.
By: /s/ Sal Tarsia
-----------------------
Name: Sal Tarsia
Title: SVP
August __, 2006
Page 3
ACCEPTED AND AGREED:
BORROWER:
PCAA SP, LLC,
a Delaware limited liability company
By: PCAA Parent LLC,
a Delaware limited liability company,
its sole member
By: Parking Company of America
Airports Holdings, LLC,
a Delaware limited liability company,
its Managing Member
By: Macquarie Americas Parking Corporation,
a Delaware corporation,
its Managing Member
By: /s/ Peter Stokes
---------------------
Name: Peter Stokes
Title: Vice President
PARKING COMPANY OF AMERICA AIRPORTS, LLC,
a Delaware limited liability company
By: PCAA Parent, LLC, a Delaware limited
liability company, its sole member
By: Parking Company of America Airports
Holdings, LLC, a Delaware limited
liability company, its Managing Member
By: Macquarie Americas Parking
Corporation, a Delaware
corporation, its Managing Member
By: /s/ Peter Stokes
---------------------
Name: Peter Stokes
Title: Vice President
PCA AIRPORTS, LTD., a Texas limited partnership
By: PCAA GP, LLC, a Delaware limited liability
company, its general partner
August __, 2006
Page 4
By: PCAA Parent, LLC, a Delaware limited liability
company, its sole member
By: Parking Company of America Airports Holdings,
LLC, a Delaware limited liability company,
its Managing Member
By: Macquarie Americas Parking Corporation,
a Delaware corporation, its Managing
Member
By: /s/ Peter Stokes
----------------------
Name: Peter Stokes
Title: Vice President
PARKING COMPANY OF AMERICA AIRPORTS PHOENIX, LLC, a
Delaware limited liability company
By: PCAA Parent, LLC, a Delaware limited liability
company, its sole member
By: Parking Company of America Airports Holdings,
LLC, a Delaware limited liability company,
its Managing Member
By: Macquarie Americas Parking Corporation, a
Delaware corporation,
its Managing Member
By: /s/ Peter Stokes
----------------------
Name: Peter Stokes
Title: Vice President
EXHIBIT A
1. The execution and delivery of the documents and instruments
substantially identified on the closing checklist previously circulated by
Lender's counsel including, without limitation, the Loan Documents, in each case
satisfactory to Lender. All Loan Documents shall be executed (to the extent
required by Lender) by the party or parties thereto and delivered to Lender and
its counsel by a date (the "Delivery Date"), that will allow sufficient time for
review to allow funding by August 31, 2006. Notwithstanding, and in addition to
the foregoing, (a) those Loan Documents must be executed by all parties thereto
and delivered to Lender's counsel on or before the Delivery Date, and (b)
duplicate originals of the Loan Documents (and any other documentation) to be
recorded must be fully executed (and acknowledged), approved by Lender's counsel
and (except for any Financing Statements) delivered into escrow with the title
insurance company on or before the Delivery Date. All Loan Documents and any and
all other documentation shall be in form, scope and substance reasonably
satisfactory to Lender and to Lender's counsel.
2. Lender shall have received and approved the following: (i) all
documents in connection with the contemplated interest rate Swap or interest
rate Cap Agreement (including, but not limited to, any opinions and a corporate
guarantee from PCAA Parent, LLC sufficient to obtain the required Swap or Cap
agreement); (ii) a letter of credit in the amount of $380,510.00 if Borrower
elects to provide a letter of credit in connection with the replacement reserve;
(iii) executed ground lease estoppels in form and substance satisfactory to
Lender with respect to certain of the Properties, as agreed to by Lender, (iv)
all organizational documents for Borrower and PCAA Parent, LLC, satisfactory to
Lender as required in the Loan Documents, (v) surveys of the Property
satisfactory to Lender for the portions of the Property subject to prior loans
from Lender and the portion of the Property located at 146-246 Haynes, Newark,
New Jersey; (vi) title pro formas for the Property satisfactory to Lender for
the portions of the Property subject to prior loans from Lender and the portion
of the Property located at 146-246 Haynes, Newark, New Jersey; (vii)
environmental site assessments for the Property satisfactory to Lender, and
(viii) zoning reports for the Property satisfactory to Lender.
3. Except as approved in writing by Lender:
a. since the date of the last inspection of the collateral by
Lender, no portion of the collateral shall have been materially damaged and not
repaired to Lender's satisfaction, or shall have been taken in condemnation or
other similar proceedings, or any such proceedings shall be pending;
b. since the date of the last inspection of the collateral by
Lender, no material change in the structure or physical condition of any portion
of the Property has occurred;
c. neither Borrower, any guarantor, any indemnitor or any parent
company thereto, shall be the subject of any bankruptcy, reorganization or
insolvency proceeding;
d. no default shall have occurred and be continuing in the
performance of any obligation of Borrower, any guarantor, any indemnitor or any
parent company thereto in the instruments evidencing, securing or guaranteeing
any other loan;
e. except as disclosed in the environmental reports required to be
delivered in connection with the Loan, no material amounts of asbestos, toxic
waste, oil or petroleum spillage or other Hazardous Substances (as defined in
the Loan Documents) or other material condition shall exist on the Property;
f. the income and expenses of the collateral, and any other
features of the transaction contemplated hereby, shall be materially as
represented in any documents delivered to, or communications with, Lender in
order to induce Lender to make the Loan;
g. a material adverse change shall not have occurred with respect
to the business operations, properties or financial condition of, Borrower, or
any guarantor or indemnitor;
h. (a) no other change in facts, events, conditions or
circumstances shall occur which may reasonably be expected to cause the Loan to
become delinquent or to materially and adversely affect the Loan or collateral
or (b) no material adverse change in conditions in the financial, banking or
debt capital markets shall occur that could reasonably be expected to materially
adversely impair the funding or syndication of the Credit Facilities; and
i. all of the information provided by Borrower, any guarantor, any
indemnitor or any parent company thereof, or any officers or principals of any
of the foregoing, in connection with Borrower's application for the Loan,
including but not limited to questionnaires completed by any of the foregoing
persons or entities, was materially true and correct on the dates provided and
did not omit any material information necessary to render complete and accurate
the information provided, and such information will be materially accurate and
complete on the closing date, except as Borrower has otherwise disclosed in
writing to, and has been approved in writing by, Lender.
4. The loan to value ratio of the property shall not exceed sixty-five
percent (65%) at stabilization, as determined by Lender.
5. All fees required by this Commitment Letter or the Application shall
have been paid in full.
6. Any and all amounts required to be paid by Borrower on or before the
closing date in accordance with the Application or the Loan Documents
(including, without limitation, amounts specified by Lender as initial deposits
for the escrow and reserve accounts required to be maintained under the Loan
Documents (provided, however, Lender shall provide Borrower with a credit at
closing for all sums held in escrow and/or reserve accounts under the loans
being refinanced by the Loan) and all fees and costs incurred by Lender in
connection with the closing, including title insurance premiums and reasonable
attorneys' fees) shall have been
paid to Lender's designated escrow agent by wire transfer of immediately
available funds no later than 12:00 noon New York City time on the closing date.
7. All representations and warranties contained in the Loan Documents
shall be true and correct as of the closing date.
8. Without limiting the provisions of 2 above, Borrower shall have
delivered prior to closing (i) the original, or a copy certified by the
insurance agent, of the policy(ies) of insurance; or (ii) the insurance binder
(Accord Form 25S provided by the insurance carrier); or (iii) a certificate of
insurance (Accord Form 27 provided by the insurance agent), or (iv) an original
letter from the insurance carrier on the primary layer, signed by an officer of
such carrier, attaching the form of insurance policy pursuant to which coverage
is being provided, and, if applicable, an original letter from each insurance
carrier on the excess layers, signed by an officer of such carrier(s) agreeing
that it is bound to the form of insurance policy delivered by the primary
carrier (i.e., agreeing to "follow form" to the primary carrier). The letter
must set forth the date by which the policy will be delivered to the Lender,
which must not be more than sixty (60) days following closing. All
mortgagee/loss payee/additional insured endorsements must be attached to the
letter.
EXHIBIT B
1. 3802 Washington Road
Atlanta, GA
2. 4099 Genesee Street
Buffalo, NY 14225
3. 1399 Stelzer Road
Columbus, OH 43219
4. 5100 W. John carpenter Freeway
Dallas, TX
5. 56th & Himalaya
Denver, CO
6. 18, 24-32, 50, 53, and 110 Ella Grasso
Hartford, CT
7. 159 Old County Road
Hartford, CT
8. 20 Ella Grasso
Hartford, CT
9. 7601 Airport Boulevard
Houston, TX 77061
10. 130-24 S. Conduit
Jamaica, NY
11. 149-05 131st Street
Jamaica, NY
12. 129th & 52nd Street
Jamaica, NY
13. 90-10 23rd Ave.
Queens, NY
14. 25-85 87th Street
Queens, NY
15. 77-15 19th Street
Queens, NY
16. 2731 Airways Road
Memphis, TN
17. 2303 Democrat Road
Memphis, TN
18. 498-512 Carnegie
Newark, NJ
19. 175-179 Haynes
Newark, NJ
20. 157-173 Haynes
Newark, NJ
21. 484-496 Carnegie
Newark, NJ
22. 136-160 Carnegie
Newark, NJ
23. 47-75 Bessemer
Newark, NJ
24. 472-482 Carnegie
Newark, NJ
25. 176-192 McClellan
Newark, NJ
26. 212-226 McClellan
Newark, NJ
27. Rt. 1 & 9
Newark, NJ
28. 146 Haynes
Newark, NJ
29. 150 Hegenberger Road
Oakland, CA
30. 106-110 Hegenberger Road
Oakland, CA
31. 145 98th Avenue
Oakland, CA
32. 195 98th Avenue
Oakland CA
33. 9655, 9725, 9790, 9791 Empire
Oakland, CA
34. 3700 N. Mannheim
Chicago, IL
35. 3901 Meridian
Oklahoma City, OK
36. 7060 Essington Avenue
Philadelphia, PA 19153
37. Mingo Avenue (Sunoco Lease)
Philadelphia, PA 19153
38. 7750 Essington Avenue (lease expires 10/31/2006)
Philadelphia, PA 19153
39. 3622 E. Washington Blvd.
Phoenix, AZ
40. 4040 East Van Buren
Phoenix, AZ
41. 701 Flaughtery Rd.
Findlay Township, PA
42. Rt. 60 & Flaughtery Rd.
Findlay Township, PA
43. 160-196 Produce Avenue (Hanna)
San Francisco, CA
44. 160 Produce Avenue (Arata)
San Francisco, CA
45. 131 Terminal Ct (GGPT)
San Francisco, CA
46. San Mateo & Colma Creek (City of South San Francisco)
San Francisco, CA
47. 160 & 190 Produce Avenue (Fee)
San Francisco, CA
48. 4607 Airflight Drive
St. Louis, MO 63134
- --------------------------------------------------------------------------------
Capmark Finance, Inc. William P. Collopy
230 Half Mile Rd. Senior Vice President
Red Bank, NJ 07701
Tel. (732) 758-0004
Fax (732) 741-0033
[CAPMARK LOGO]
June 14, 2006
Mr. Greg Andrews
Chief Executive Officer
PCAA Parent, LLC
8255 Firestone Blvd., Suite 502
Downey, CA 90241
Re: AviStar/PCAA/SunPark Off Airport Parking Portfolio (the "Property")
- -----------------------------------------------------------------------
Dear Mr. Andrews:
Capmark Finance, Inc. ("Lender") is pleased to consider your request for
financing (the "Loan") secured by the Property and Other Collateral, all as more
particularly described below, on the general terms and conditions outlined
below:
Requested Loan Amount: $195,000,000 for the refinancing of the
AviStar/PCAA/SunPark Parking Portfolio.
Borrower's Equity: At Loan closing, Borrower will be required to
demonstrate a minimum cash investment in the
Property of not less than $64,500,000
associated with the refinancing. Borrower's
final capital/ownership structure and the use
of capital and Loan proceeds will be subject to
Lender's approval of Borrower's business plan.
Loan Purpose: Refinancing of a 25 property Off-Airport
Parking Lot Portfolio.
Initial Term: 36 months
Extension of Initial Term: 2 Extensions of 12 months each. Each Extension
must be exercised by written notice to Lender,
which must be received by Lender not more than
90 days and not less than 30 days prior to the
then-current maturity date. The First Extension
will be made available provided that the
following criteria have been satisfied: (a) the
underwritten CFbDS provides a DSCR that
supports a 1.10x DSCR at 10.09% constant, (b)
no event of default exists, (c) Borrower has
secured an Interest Rate Cap on the Index or
continues to provide a LIBOR Swap Hedge.
The Second Extension will be made available
provided that the following criteria have been
satisfied: (a) the underwritten CFbDS provides
a DSCR that supports a 1.20x DSCR at 10.09%
constant, (b) no event of default exists.
Notwithstanding the above, in the event the
DSCR tests above are not satisfied, Borrower
may make a principal repayment such that after
application of the repayment, said tests are
satisfied.
Amortization: Interest only. Subject to Lender's additional
Performance Criteria
Index: The 30-day London Interbank Offered Rate for
U.S. Dollar Deposits. On June 5, 2006 the rate
reported by Bloomberg is 5.13%.
Interest Rate: The Index plus:
(1) 190 basis points during the Initial Term;
(2) 210 basis points during the first Extension
period; and 230 basis points during the second
Extension period.
The Interest Rate will be adjusted monthly
based upon the applicable Index and will be
calculated on the actual number of days elapsed
and a year consisting of 360 days.
Interest Rate Cap: At or prior to closing, Borrower shall purchase
an Interest Rate Cap on the Index or an
Interest Rate Swap Agreement on the entire
projected loan balance for the Initial Term.
The Interest Rate Cap or Interest Rate Swap
Agreement shall be assigned to Lender as
additional collateral, shall be purchased from
a financial institution, with a credit rating
of at least A-, satisfactory to Lender, and
shall be acceptable to Lender in all respects
acting reasonably. In the event that Borrower
provides any Interest Rate Swap Agreement,
Lender
AviStar/PCAA/SunPark Portfolio
Page 2 of 13
will escrow at closing the cost of the
Agreement. Lender will also require a corporate
guarantee from PCAA Parent, LLC. for any
shortfalls in the escrow account related to any
Interest Rate Swap Agreement. Failure by
Borrower to maintain the Interest Rate Swap
Agreement shall be an Event of Default.
Payments: Monthly payments and the final payment will be
due on the ninth day of each month. The
interest will be paid partly in arrears and
partly in advance. The payment date will be the
9th of the month for interest from the 15th of
the previous month to and including the 14th of
the payment month.
Prepayment: Borrower shall pay a 1% prepayment premium
during the first 12 months on any amount
prepaid, a 0.50% prepayment premium during
months 13-18 on any amount prepaid, unless, in
either case, the loan is prepaid by the
proceeds from a refinancing by Capmark.
Thereafter, the Loan may be prepaid in part or
whole without incurring a prepayment premium on
any payment date upon 30-days prior written
notice.
The documentation of this prepayment clause to
reflect to SunPark acquisition documents.
Cash Flow Available for Debt The Debt Service Coverage Ratio ("DSCR") will
Service: be calculated as the ratio of a:b where:
a = Net Operating Income for the most recent 12
month period prior to the calculation date less
the Replacement Reserve Amount
b = Debt Service.
Net Operating Income shall be defined as
Borrower's Consolidated Lot EBITDA (excluding
non-cash items) for the most recent 12 month
period prior to the calculation date less a
management fee of 1.75% of the Gross Property
Revenues.
Debt Service, when calculated at the time of
closing, shall be defined as $193.0 million
multiplied by the actual interest rate on the
Loan at closing. At the time of this Loan
Request, the interest rate is assumed to be
7.03%, consisting of a 5.13% Index and a 190
basis point spread.
Debt Service, when calculated at any other time
(Lender's extensions), shall be calculated by
applying an 10.09% constant on the outstanding
loan balance at that time.
At the time of closing, the DSCR shall be no
less than both 1.60x actual and 1.10x stressed
DSCR at an 10.09% constant and Net Operating
Income after the deduction of applicable
reserves for replacements shall be not less
than $22,241,000, based on the borrowers
Pro-Forma LTM, and at stabilization Net
Operating Income, after the deduction of
applicable reserves for replacements of at
least $25,427,000, based on Borrower's
Pro-Forma Year Four (4) Operating Statements,
as determined by Lender in its sole
AviStar/PCAA/SunPark Portfolio
Page 3 of 13
discretion. For other DSCR calculation dates,
see "Additional Conditions".
Loan to Value: Not to exceed 75% "as-is" and 65% at
stabilization at the end of the Initial Term of
the Loan as determined by Lender and review of
the appraisal report(s), which shall provide a
discounted cash flow analysis.
Origination Fee: 1% of the principal amount of the Loan. The
Origination Fee is earned, due and payable at
closing.
Exit Fee: No Exit Fee shall be due, however, it is agreed
that the Borrower will provide Capmark the
right of first and last refusal of any
potential refinance opportunities for the
subject loan(s) on the portfolio for the first
18 months after closing, unless such
refinancing is provided by the parent of the
Borrower. In addition, in the event of a sale
of the asset(s), Borrower will agree to
introduce Capmark via Letter to said
prospective buyers for possible financing
opportunities.
Underwriting Fee: $ 45,000 (non-refundable), payable upon
acceptance hereof.
Borrower: Borrower will be bankruptcy-remote single
purpose entities ("SPE") formed exclusively for
the purpose of owning and operating the
Property and shall be prohibited from engaging
in any other business activity or incurring any
other liability or debt, whether secured or
unsecured, other than the Loan, Swap Agreement
and those associated with routine Property
operating expenses and required capital
improvements to the Property. A substantive
non-consolidation opinion will be required.
Significant Loan Party: PCAA Parent, LLC, subject to confirmation of
ownership structure and Lender usual and
customary due diligence, which may include
satisfactory minimum net worth and liquidity
covenants. [Need to determine Loan Party]
Escrow for Recourse Carveouts: Lender will accept an on-going minimum net
worth of $40,000,000, and an on-going minimum
liquidity of $3,000,000 to be provided by PCAA
Parent, LLC. Net worth shall be the total
market value of the total assets of the
Significant Loan Party less any liabilities.
Liquidity shall be cash or unencumbered,
marketable securities.
Lien Position and Other A first priority perfected: (a) mortgage, deed
Collateral: of trust or deed to secure debt covering the
Property; (b) security interest in furniture,
fixtures and equipment and all escrow and
reserve accounts; and (c) assignment of leases,
rents, profits, accounts receivable, other
revenues, permits, licenses and contracts with
respect to the Property.
Non-Recourse: The Loan will be non-recourse to Borrower and
its principals except Borrower and Significant
Loan Party will retain recourse under the Loan
Documents in the event (A) the Property or any
part of the
AviStar/PCAA/SunPark Portfolio
Page 4 of 13
collateral becomes an asset in (i) a voluntary
bankruptcy or insolvency proceeding or (B) any
involuntary bankruptcy or insolvency
proceeding is commenced by any person or entity
(other than by Lender) and Borrower fails to
use its best efforts to obtain a dismissal of
such proceedings, or (C) Borrower fails to
comply with reporting and budget approval
covenants in the Loan Documents (see Borrower
Reporting). Additionally, Borrower and
Significant Loan Party will retain recourse for
Lender's losses, expenses and costs, which
shall include Lender's costs to enforce its
rights and remedies, arising out of the
following: (1) fraud or intentional
misrepresentation, (2) intentional affirmative
waste by the Borrower or its affiliates, (3)
gross negligence or criminal acts resulting in
forfeiture, seizure or loss of any portion of
the Property, (4) misapplication or
misappropriation of funds or collateral, (5)
liability arising under the Environmental
Indemnity, (6) sale or conveyance of the
Property or interests in the Borrower in
violation of the Loan Documents without the
prior written consent of Lender; (7) any
material breach of SPE covenants, (8) Lender's
enforcement of and collection of any amounts
payable under the Loan Documents and Lender
protecting its interest in the Property and the
Other Collateral, (9) Lender's losses from
indemnifying the cash management bank, and (10)
Borrower's failure to maintain an interest rate
swap agreement or interest rate cap.
Environmental Indemnity: Borrower and the Significant Loan Party shall
at Borrower's election, either (a) execute an
environmental indemnity in form and substance
acceptable to Lender or (b) Borrower may
provide environmental insurance in form and
substance reasonably acceptable to Lender.
Borrower Reporting: The Loan Documents will require quarterly, and
annual reporting by the Borrower with respect
to the Property and Borrower's Business Plan.
Lender may request monthly reporting prior to
securitization or syndication of the Loan or in
the Event of Default. Failure to comply with
reporting and budget approval requirements
(after expiration of applicable notice and cure
periods) will result in a penalty of $5,000 for
the first failure, $10,000 for the second
failure and $25,000 for the third, and each
successive, failure.
Notwithstanding the above, the Borrower
Reporting requirements shall be consistent with
the SunPark transaction.
Cross-Collateralization: The properties shall be cross-collateralized
and cross-defaulted. Borrower may obtain a
release of an individual property by : (a)
prepaying the Loan in an amount equal to 125%
of the Loan amount allocated to such property,
provided that, in no event shall the debt
service coverage ratio on the properties
remaining be; (i) less than the minimum
required DSCR and LTV at closing prior to the
commencement of the Performance criteria and,
(ii) less than the minimum DSCR required upon
the commencement of the Performance Criteria;
and (b) paying a 1% prepayment premium within
the first 12 months and 0.5% during the months
13 - 18, and
AviStar/PCAA/SunPark Portfolio
Page 5 of 13
without penalty thereafter.
Borrower shall have a right to the release to
an unaffiliated third party of the undeveloped
out-parcel at the Oklahoma City lot and Oakland
Red subject to Lender's review of the impact of
the release with regard to property-level cash
flow, LTV, zoning, the lot being a separate tax
lot and parcel and updated survey and title.
Transfers: Transfers of the Property or legal or
direct or indirect beneficial interests in the
Property or Borrower and the assumption and/or
assignment of the Loan will be allowed subject
to Lender's written consent, which shall not be
unreasonably withheld or delayed, which may be
conditioned upon, among other things: (a)
approval by Lender of the proposed transferee's
financial condition and management experience
for comparable properties; (b) payment of a
transfer fee of a minimum of 1/2% of the
principal balance of the Loan if all of the
Property is transferred; and (c) confirmation
from the applicable rating agencies, if
applicable, that such transfer shall not result
in a downgrade, qualification or withdrawal of
the then current ratings of the securities
issued pursuant to a securitization which
includes the Loan.
Notwithstanding the foregoing, subject to
the terms and provisions in the Loan Documents,
(i) Transfers of Equity Interests which, in the
aggregate over the term of the Loan (i) do not
exceed forty-nine percent (49%) of the total
interests in Borrower or in SPE Equity Owner or
in Guarantor, as applicable; (ii) do not result
in any Person holding an Equity Interest in
Borrower or SPE Equity Owner, as applicable,
which exceeds forty-nine percent (49%) of the
total Equity Interests in Borrower or in SPE
Equity Owner, as applicable; and (iii) do not
result in a change of Control shall also be
permitted without payment of a fee, and (2)
transfers to Macquarie Group members shall be
permitted without payment of a fee (other than
Lender's reasonable out-of-pocket expenses) and
without Lender's consent; and (iii) the
"Permitted Transfers" as defined in the SunPark
transaction shall be permitted without Lender's
consent.
Notwithstanding anything contained herein
to the contrary, the "transfer" and "control"
provision from the SunPark transaction shall be
used except to the extent they conflict with
this application, including without limitation
that Macquarie Infrastructure Company, Inc.
("MIC"), which is the parent of Macquarie
Americas Parking Corporation ("MAPC"), which is
the parent of PCAA Parent, LLC, is currently a
borrower under an Amended and Restated Credit
Agreement dated May 9, 2006 among MIC LLC, MIC
Inc, the lenders and issuers party thereto and
Citigroup North America, Inc., as
administrative agent pursuant to which it has
pledged its equity interests in MAPC and may in
the future seek other credit facilities from
other "comparable financial institutions"
(collectively, "Creditors") including without
limitation, replacements, extensions,
modifications, increases of existing credit
facilities and/or any new credit facility
("Credit Facilities"). For the purposes of this
application and the Loan Documents the term
"comparable financial
AviStar/PCAA/SunPark Portfolio
Page 6 of 13
institutions" shall mean any Eligible Assignee
(as defined in Schedule A attached).
In addition, the Loan Documents shall
provide therein that Lender consents to any
future pledge of MIC's (or any of the Macquarie
Group's) equity interest in MAPC to any
Creditors to secure any one or more such Credit
Facilities, provided, however, such consent
shall not be deemed a consent to any transfer
of MIC's (or any of the Macquarie Group's)
equity interest in MAPC to the Creditors
pursuant to any enforcement of such pledge or
otherwise.
"Macquarie Group" means Macquarie Bank
Limited, its direct or indirect subsidiaries
and any fund or entity are managed or advised
by any direct or indirect subsidiary of
Macquarie Bank Limited, or any direct or
indirect subsidiary of any such legal entity,
provided however the term "advised" shall mean
advice in relation to the management of
investments of that legal entity which (other
than in relation to actually making decisions
to implement such advice) is substantially the
same as the services which would be provided by
a fund manager of the relevant legal entity.
"Transfer" shall mean to sell, lease,
convey or otherwise dispose of.
Deferred Maintenance/Capital Lender may require Borrower to deposit funds at
Improvement Reserve: closing into a reserve account equal to 125% of
the proposed amount of deferred
maintenance/capital improvements for the
Property, as determined by Lender, after
conducting an inspection of the Property and
reviews of the Borrower's Business Plan and the
current A&E Report. Disbursements from such
reserve will be made by Lender upon completion
of the work, delivery of lien waivers, and
Lender's approval of the work.
Notwithstanding the above, Deferred Maintenance
and Capital Improvement Reserves shall be
consistent with Lender's prior underwriting.
Replacement Reserve: Lender may require an annual reserve per stall
for replacements, as determined by Lender,
after conducting an inspection of the Property
and reviews of the Borrower's Business Plan and
the current A&E Report. Borrower will make
monthly deposits equal to 1/12th of the annual
replacement reserve amount. The replacement
reserve will be available to Borrower for
qualified capital expenditures. The annual
deposit is, subject to underwriting, currently
estimated at $10 per stall. Lender will cap the
Replacement Reserve in the amount of 125% of
Lender's underwritten amount (the "Replacement
Reserve Cap"). At such time as payments to the
Replacement Reserve, including any accrued
interest earned on the Replacement Reserve,
equal the Replacement Reserve Cap, payments to
the Replacement Reserve shall be suspended.
Upon Borrower's draw down of funds from the
Replacement Reserve Account, Lender will
commence normalized collections of the
Replacement Reserve until such time as the
Replacement Reserve Cap is reached (including
any accrued credited interest earned on the
Replacement Reserve Account).
AviStar/PCAA/SunPark Portfolio
Page 7 of 13
Subject to Lender's annual inspection and
provided that there is no event of default
under the Loan, the Replacement Reserve will be
capped at $366,550, which shall be provided for
in cash or in the form of a letter of credit
acceptable to Lender. Lender's underwriting
will utilize an amount of no less than $10 per
stall
Tax/Insurance Reserve: A monthly escrow for insurance, real estate
taxes, assessments and, if applicable, ground
rents will be required.
Evidence of Insurance: Prior to closing, Borrower must provide Lender
with evidence of insurance acceptable to the
Lender, including, among other things, an
original copy of the insurance policy(ies).
Such insurance policy(ies) must not have an
exclusion for terrorism or terrorist acts.
Insurance requirements shall be consistent with
Lender's prior transaction.
Casualty/Condemnation Subject to Lender's review during underwriting,
Insurance: Lender may require Casualty and/or Condemnation
Insurance at closing, at Borrower's expense, if
tenant has termination rights in the event of a
casualty and/or condemnation. If required, this
policy will be separate and apart from other
forms of insurance required by Lender and shall
be in form and substance and from a carrier or
insurer acceptable to Lender.
Cash Management Account: Lender acknowledges that each property manager
makes deposits of all money collected at such
property into an account at a local bank no
less than twice weekly. Borrower's local bank
shall accordingly make deposits of all such
cash flow directly to Lender's Cash Management
Account, which shall be established at Wachovia
Bank, National Association. Deposits in the
Cash Management Account will be available to
pay real estate taxes, insurance premiums, loan
principal and interest payments, property
operating expenses, approved capital
improvements and required reserves. Provided
that Borrower is not in default, all excess
cash will be returned to the Borrower
The Cash Management Account shall be consistent
with Lender's prior transaction.
Lease Approval: Lender shall have approval rights for all
property operating leases or master leases,
excluding immaterial leases.
Management Agreement: A cancelable Property Management Agreement
acceptable to Lender and subordinate to
Lender's mortgage and the Loan will be
required. The Management Agreement shall be
consistent with Lender's prior transaction.
Securitization and Transfer: Borrower shall cooperate with Lender in
connection with the sale of the Loan or the
securitization of the Loan and obtaining
ratings from one or more rating agencies, which
cooperation shall include: (i) providing
additional information, subject to any
contractual
AviStar/PCAA/SunPark Portfolio
Page 8 of 13
restrictions, regarding the Property, Borrower
or any of its affiliates, any Significant Loan
Party, including, without limitation,
additional appraisals, environmental reports,
engineering reports and similar due diligence
materials, and updates, verifications and
consents with respect to such materials that
were delivered at closing, (ii) supplying such
documentation, financial statements, and
reports that may be required to comply with
Regulation S-X of the federal securities law,
(iii) re-executing or making modifications to
the Loan Documents or the organizational
documents, provided that no such modification,
revision, additional documentation, or other
action in connection with such cooperation
shall adversely affect the Borrower or any
other Loan Party, (iv) revising existing
opinions or supplying additional opinions
reasonably requested by the Lender, (v)
delivering additional tenant estoppel letters,
subordination agreement or similar agreements
and (vi) participating (including senior
management of Borrower) in meetings and
presentations to the rating agencies and
prospective investors, in each case as required
by the rating agency or agencies or prospective
investors. The Borrower shall bear its own cost
(including without limitation costs of its
legal counsel) incurred in providing such
additional opinions, additional documents,
revisions to existing opinions or modifications
to the Loan Documents or other actions in
connection with such cooperation Lender shall
bear all other costs associated with the
securitization, including without limitation
its legal costs. The cost of providing such
additional opinions, additional documents,
revisions to existing opinions or modifications
to the Loan Documents or other actions in
connection with such cooperation shall be borne
by Borrower. At the request of Lender, Borrower
shall make such representations and warranties
as of the date of the securitization as are
customary in securitization transactions,
review any factual information or disclosures
with respect to the Property, Borrower and its
affiliates or any Significant Loan Party, which
is contained in any private placement
memorandum, prospectus, registration statement,
or other offering materials relating to any
sale or securitization of the Loan, and
Borrower and Significant Loan Party, as
applicable, shall indemnify Lender against
securities liability and any loss or expense
incurred as a result of any misstatements or
omissions of the Borrower in any written
offering material approved by Borrower, its
sponsor or parent or any of their affiliates.
Any costs or expenses in cooperating with any
re-structuring of the Loan shall be borne
solely by Lender, to the extent that such costs
exceed $5,000.
Promissory Notes Structure: Lender shall have the right, in its sole
discretion, between the closing of the Loan and
a sale or securitization, to require that the
Loan be divided into two or more separate (or
component) notes, of which the aggregate
weighted average coupon rate shall, as of the
sale or securitization, equal the initial
Interest Rate on the Loan at closing (adjusted,
if applicable, to account for amortization),
but each of which may have a different interest
rate and a different amortization schedule,
which notes may be included in separate
transactions, including the creation of a
mezzanine loan secured by a collateral
AviStar/PCAA/SunPark Portfolio
Page 9 of 13
assignment of equity interests in Borrower
and/or its affiliates. For portfolios only:
Lender shall also have the right to allocate
the properties among two or more pools, which
will secure one or more of the component notes
described above. Not withstanding the
foregoing, any costs or expenses in cooperating
with any re-structuring of the Loan shall be
borne solely by Lender, to the extent that such
costs exceed $5,000.
Due Diligence Period: Upon acceptance hereof, the Significant Loan
Party will or will cause Borrower to promptly
deliver to Lender and its legal counsel all
materials reasonably requested by Lender and
otherwise cooperate in good faith with Lender
in order to comply with the terms and
conditions hereof and of the Commitment Letter
in order to close the Loan. All such deliveries
must be received within 30 days from acceptance
hereof. Lender will order third party reports
from its customary vendors immediately upon
acceptance hereof for delivery to Lender by
July 10, 2006. Lender will complete its due
diligence by July 17, 2006. Pending acceptance
by Lender of all third party reports.
Lender will endeavor to close and fund the loan
within 14 days of the completion of Lender's
Due Diligence period, which is currently
estimated to be 45 days.
Commitment Letter / Loan Promptly following the completion of the Due
Closing: Diligence Period, Lender may issue or decline
to issue a Commitment Letter to make the Loan
or the parties may agree to forego issuance of
a Commitment Letter and proceed directly to
closing. The issuance of a Commitment Letter
and Loan closing are subject to, among other
things, (a) receipt of final acceptable third
party reports; (b) completion of all
underwriting, legal and business due diligence
and documentation; (c) Committee Approval; (d)
Property inspection acceptable to Lender; and
(e) absence of any material adverse change in
the Property, Borrower or any Significant Loan
Party. The Commitment Letter will be effective
for 45 days from the date it is issued.
Lender will endeavor to close the loan on or
before July 31, 2006, which is 60 days from
receipt of the fully executed application
letter which shall be accompanied with the
appropriate deposits subject to Borrower's
prompt delivery of all required due diligence
and third party reports as required by Lender.
Appraisal: Within the time frame specified herein, Lender
must receive an "as is" and "as stabilized" at
the end of the Initial Term of the Loan
appraisal of the Property. The appraisal must
be in form and substance acceptable to Lender
and shall be consistent in form and content
with the SunPark transaction.
A&E Report/Environmental: Within the time frame specified herein, Lender
must receive an architectural and engineering
report as well as a Phase I
AviStar/PCAA/SunPark Portfolio
Page 10 of 13
environmental report (including wetlands,
asbestos, radon and toxic mold), in form and
substance acceptable to Lender (including from
an acceptable vendor).
Loan Expenses: Borrower shall pay for all of Lender's
reasonable and documented out-of-pocket
expenses in connection with the Loan whether or
not the Loan closes or a Commitment Letter is
issued. Such expenses include, but are not
limited to, the cost of title insurance,
survey, legal fees, appraisal, seismic report,
architectural and engineering report,
environmental report, insurance review fees,
loan set-up fees (which include establishing
reserve accounts), and third party due
diligence. In addition, Borrower shall pay all
closing costs customary to a transaction of
this nature, including, recording fees and
taxes and intangible taxes on the note or the
debt evidenced by the Loan.
Notwithstanding the foregoing and to the extent
same is customary in similar loan transactions,
at Borrower's request, Lender shall cooperate
with Borrower and use commercially reasonable
efforts to structure the note(s) and
mortgage(s) in a manner that provides Borrower
with credit for mortgage taxes previously paid
on the mortgages being refinanced. In
jurisdictions in which mortgage taxes are
assessed, Lender shall limit the face amount of
the mortgage upon which mortgage taxes are to
be assessed to the greater of (A) 110% of the
allocated loan amount; or (B) the amount for
which Borrower is able to obtain a credit for
mortgage taxes paid on the mortgage being
refinanced.
Loan Expense Deposit: Upon Borrower's acceptance and execution of
this letter, Borrower shall deposit with Lender
the sum of $150,000, as an initial deposit, to
cover expenses associated with third party
reports and fees, legal fees, and other closing
costs. In the event a Commitment Letter is not
issued or the Loan does not close, this
deposit, less costs incurred, will be refunded
to Borrower and reports prepared will be
provided to the Borrower upon the execution of
a Lender prepared Borrower Release Form. If the
initial Loan Expense Deposit is insufficient,
Borrower may be required to post additional
expense funds. To the extent that the Loan does
close, any excess Loan Expense Deposit will be
credited against other upfront costs associated
with the Loan.
Loan Documents: The Loan will be evidenced by Lender's
customary loan documentation which will
include, without limitation, Lender's customary
representations and warranties with respect to
compliance with legal requirements, including,
but not limited to, those related to (a) money
laundering and (b) transactions with persons
subject to financial sanctions, trade
embargoes, economic sanctions and other similar
prohibitions under applicable laws provided
that such loan documentation shall be subject
to reasonable, good faith negotiations by the
parties.
The terms of the Loan Document's are to be
substantially the same
AviStar/PCAA/SunPark Portfolio
Page 11 of 13
as the documents utilized in the Sunpark
acquisition, unless otherwise indicated in this
document.
Committee Approval: The issuance of any Commitment Letter or any
other undertaking or obligation of Lender to
make the Loan is subject to, among other
things, the approval of its loan/credit
committee.
Additional Conditions: 1) Business Plan - Borrower shall submit its
Business Plan, which is the financial and
operating projections and business
objectives for the Property during the
term of the Loan. The Business Plan shall
include three years of historical
operating statements if available, the
most recent operating statement, and
proforma operating statements for the 10
years looking forward, including at the
time of projected stabilization, at the
end of the Initial Loan Term. The Business
Plan shall also include the proposed
budget for tenant improvements, leasing
commissions, deferred Property maintenance
and interior and exterior capital
improvements including, if applicable, any
proposed expansion of, or addition to, the
Property. The Business Plan shall contain
a brief, bullet point discussion of the
steps Borrower will implement to take the
Property from Loan closing to
stabilization. The Loan is specifically
subject to the Lender's approval of the
Borrower's Business Plan in Lender's sole
discretion, not to be unreasonably
withheld.
2) Subject to acceptable Property inspections
by Capmark, acting reasonably.
3) Subject to Lender's satisfactory review of
the Year-To-Date 2006 operating history
for the subject properties where
applicable and available.
4) Subject to Lender's satisfactory review of
any applicable operating agreement or
lease on the subject Property to the
extent not previously reviewed.
5) Lender's underwriting will be based off
the trailing 12-month net operating income
for the Properties (Pro-Forma for
acquisitions occurring during the trailing
12 month period).
6) Subject to Lender's satisfaction that at
the Loan closing, a $193,000,000 takeout
loan, at the end of the Initial Loan term,
can be underwritten to a 1.20x DSCR at an
10.09% constant based on Lender's
satisfactory review of Borrower's proforma
operating statements.
7) Lender will utilize actual rents for
underwriting in determining periodic
underwritten DSCR. The portfolio must
satisfy the following Performance
Criteria, as determined by Lender during
the Loan Term which shall be based on a
trailing 12-month operating results basis
for all of the properties: Tested
quarterly, 1.00x DSCR at 10.09% constant.
If the above Performance Criteria are not
satisfied Lender will sweep 100% of the
net monthly cash flow (after payment of
real estate taxes, insurance premiums,
Loan principal and interest payments (to
the extent then due), property operating
expenses, approved capital improvements
and required reserves) to either hold as
additional collateral against the loan or
pay down the Loan to satisfy the
AviStar/PCAA/SunPark Portfolio
Page 12 of 13
Performance Criteria. To the extent that
the cash is held as additional collateral,
such funds shall be released once the
Performance Criteria have been achieved.
8) An interest rate cap or interest rate swap
agreement shall be required, as determined
by Lender during its due diligence.
Borrower shall assign all rights relating
thereto to Capmark. Capmark will have a
right of first refusal to place the
Interest Rate cap provided that economic
and all other terms meet or exceed third
party quotes.
9) Lender reserves the right to split the
loan into senior and subordinate pieces,
including mezzanine debt collateralized by
a pledge of equity interests, and borrower
will execute all documents in conjunction
therewith.
This letter is not a commitment to lend, either expressed or implied, and does
not impose any obligation on Lender to issue a Commitment Letter or to make the
Loan, or on the Borrower or any other entity in the Macquarie Group in any
respect. The terms and conditions outlined above are not all inclusive, but
merely reflect the parties' discussions to date and are subject to change. The
contents hereof are confidential and are intended for use exclusively by the
parties, their advisors and legal counsel in connection with the Loan from
Lender and may not be disclosed to any third party by Borrower or its
representatives.
To commence processing of your requested financing, please sign and return the
enclosed counterpart together with a check in the amount of $195,000
representing a $ 45,000 Underwriting Fee, and a $150,000 Loan Expense Deposit.
This letter shall become null and void unless a counterpart of this letter and
your check is received by 5:00 PM Eastern time on June 15, 2006. It may be sent
via facsimile to732-741-0033, provided the original and the required check are
received the next business day.
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OBTAINING A LOAN:
TO HELP THE GOVERNMENT FIGHT THE FUNDING OF TERRORISM AND MONEY LAUNDERING
ACTIVITIES, FEDERAL LAW REQUIRES ALL FINANCIAL INSTITUTIONS TO OBTAIN, VERIFY
AND RECORD INFORMATION THAT IDENTIFIES EACH PERSON WHO OPENS AN ACCOUNT.
TO COMPLY WITH THIS FEDERAL REQUIREMENT, LENDER OR LENDER BANK WILL ASK YOU FOR
THE BORROWER'S NAME, PRINCIPAL PLACE OF BUSINESS OR OTHER PHYSICAL LOCATIONS,
TAX IDENTIFICATION NUMBER, DOCUMENTS SHOWING THE EXISTENCE OF THE BORROWER, AND
OTHER INFORMATION THAT WILL ALLOW THE LENDER TO IDENTIFY YOU.
TO HELP THE GOVERNMENT FIGHT THE FUNDING OF TERRORISM AND MONEY LAUNDERING
ACTIVITIES, FEDERAL LAW REQUIRES ALL FINANCIAL INSTITUTIONS TO OBTAIN, VERIFY
AND RECORD INFORMATION THAT IDENTIFIES EACH PERSON WHO OPENS AN ACCOUNT ITS
CUSTOMERS.
TO COMPLY WITH THIS FEDERAL REQUIREMENT, LENDER OR LENDER BANK WILL ASK YOU FOR
THE BORROWER'S NAME, PRINCIPAL PLACE OF BUSINESS OR OTHER PHYSICAL LOCATIONS,
TAX IDENTIFICATION NUMBER, DOCUMENTS SHOWING THE EXISTENCE OF THE BORROWER, AND
OTHER INFORMATION THAT WILL ALLOW THE LENDER TO IDENTIFY YOU. WILL REQUEST AND
KEEP A RECORD OF INFORMATION THAT IDENTIFIES BORROWER AND ITS PRINCIPALS,
INCLUDING, WITHOUT LIMITATION, LEGAL NAMES, PRINCIPAL PLACE OF BUSINESS OR
RESIDENCE, TAX IDENTIFICATION OR SOCIAL SECURITY NUMBERS, BIRTH DATES OF
INDIVIDUALS, AND DOCUMENTS SHOWING THE LEGAL EXISTENCE OF AN ENTITY. THIS
INFORMATION MAY BE SHARED WITH U.S. GOVERNMENT AGENCIES AS REQUIRED BY THE USA
PATRIOT ACT.
If there are any questions, please contact the undersigned at 732-758-0004, fax
732-741-0033.
Capmark Finance, Inc.
By: /s/ William Collopy
---------------------
William Collopy
Senior Vice President
Cc: Dennis S. Owen
Vice President
Capmark Finance Inc.
48 Wall Street
New York, N.Y. 10005
AGREED TO AND ACCEPTED THIS 14TH DAY OF JUNE, 2006.
Borrower:
By: /s/ Peter Stokes
Name: Peter Stokes
Title: Chairman
AviStar/PCAA/SunPark Portfolio
Page 13 of 13
SCHEDULE 1 - List of Properties
LOCATION ADDRESS CITY, STATE
- -------- ------- -----------
Atlanta, Ga. 3802 Washington Rd. Atlanta, GA 30344
Dallas, Texas 5100 W John Carpenter Fwy Irving, TX, 75063
Phoenix, Ariz. 3622 East Washington St Phoenix, AZ 85034
Phoenix, Ariz. 4040 East Van Buren Phoenix, AZ 85008
Denver, Colo. 19901 E. 56th Avenue Denver, CO 80019
San Francisco, CA 160 Produce Avenue San Francisco, CA 94080
Pittsburgh, Pa. 701 Flaugherty Run Road. Coraopolis, PA 15108
Oakland, Calif. 145 98th Avenue Oakland, CA 94603
Oakland, Calif. 195 98th Avenue Oakland, CA 94603
Memphis, Tenn. 2303 Democrat Rd Memphis TN, 38132
Hartford, Conn. 24 Ella Grasso Tpke Windsor Locks, CT
Hartford, Conn. 53 Ella Grasso Tpke Windsor Locks, CT
Hartford, Conn. 110 Ella Grasso Tpke Windsor Locks, CT
Buffalo, NY 4099 Genesee Street Buffalo, NY 14225
Columbus, OH 1399 Stelzer Road Columbus, OH 43219
Houston, TX 7601 Airport Blvd. Houston, TX 77061
Oklahoma City, OK 3901 South Meridian Oklahoma City, OK 73119
Newark, N.J. 176-192 McClellan Street Newark, NJ 07114
Newark, N.J. 498-512 Carnegie Avenue Newark, NJ 07114
146 Haynes Avenue
Newark, N.J. 472 US Highway 1 and 9 Newark, NJ 07114
New York, N.Y. 130-24 South Conduit Avenue Jamaica, NY 11430
New York, N.Y. 23rd Ave. and 90th St. East Elmhurst, NY 11369
Chicago, IL 3700 N. Mannheim Rd. (Leasehold) Franklin Park, IL 60131
Philadelphia, Pa. 7750 & 7060 Essington Ave. Philadelphia, PA 19153
St. Louis, MO 4607 Airflight Drive St. Louis, MO 63134-4128