EXHIBIT 10.3
WAIVER AGREEMENT
THIS WAIVER AGREEMENT (this "Waiver") entered into as of May 14, 2003
is among CENTRAL PARKING CORPORATION, a Tennessee corporation ("CPC" or the
"Parent"), CENTRAL PARKING SYSTEM, INC., a Tennessee corporation ("CPS"),
ALLRIGHT CORPORATION, a Delaware corporation ("Allright"), KINNEY SYSTEM, INC.,
a Delaware corporation ("Kinney"), CPS FINANCE, INC., a Delaware corporation
("CPSF"), CENTRAL PARKING SYSTEM OF TENNESSEE, INC., a Tennessee corporation
("CPST"), (CPC, CPS, Allright, Kinney, CPSF and CPST are hereinafter referred to
individually as a "Borrower" and collectively as the "Borrowers"), the
Subsidiary Guarantors, the Lenders party hereto and Bank of America, N.A., as
administrative agent for the Lenders (in such capacity, "Administrative Agent").
Capitalized terms used herein and not otherwise defined shall have the
respective meanings given to them in the Loan Agreement (as defined below).
RECITALS
WHEREAS, the Borrowers, the Guarantors, the Lenders and the
Administrative Agent have entered into that certain Credit Agreement dated as of
February 28, 2003 (as amended, modified, supplemented, extended or replaced from
time to time, the "Loan Agreement");
WHEREAS, an Event of Default (i) has occurred under the Loan Agreement
as a result of the Parent's failure to comply, for the fiscal quarter ending
March 31, 2003, with the Consolidated Leverage Ratio set forth in Section
8.11(a) and the Consolidated Senior Leverage Ratio set forth in Section 8.11(b),
and (ii) may occur under the Loan Agreement as a result of the Parent's failure
to comply, for the fiscal quarter ending June, 30, 2003, with the Consolidated
Leverage Ratio set forth in Section 8.11(a), the Consolidated Senior Leverage
Ratio set forth in Section 8.11(b) and/or the Consolidated Fixed Charge Coverage
Ratio set forth in Section 8.11(c) (collectively, the "Financial Covenant
Defaults");
WHEREAS, the Borrowers have requested that the Lenders waive the
Financial Covenant Defaults as of the Effective Date (as defined below);
WHEREAS, the requisite Lenders have directed the Administrative Agent
to execute this waiver, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Waiver.
(a) Waiver. The Loan Parties acknowledge that the
Financial Covenant Defaults have occurred or may occur. The Lenders
hereby waive the Financial Covenant Defaults subject to the
satisfaction of all of the terms and conditions set forth in this
Waiver until the Waiver Termination Date (defined below).
(b) Modifications to Pricing. During the period beginning
on May 1, 2003 to and including the Waiver Termination Date, (i) the
"Applicable Rate" under the Loan Agreement shall be 3.00% for Revolving
Loans consisting of Eurodollar Rate Loans, 1.50% for Revolving Loans
consisting of Base Rate Loans, and 3.00% for Letter of Credit Fees and
(ii) Tranche B Term Loans consisting of Eurodollar Rate Loans shall
bear interest at a rate equal to the Eurodollar Rate plus 3.50% and
Tranche B Term Loans consisting of Base Rate Loans shall bear interest
at a rate equal to the Base Rate plus 2.00%.
(c) Modifications to Covenants. Prior to the Waiver
Termination Date (as hereinafter defined), (i) the Total Revolving
Outstandings at any time shall not exceed $140,000,000, (ii) in
addition to the other conditions contained in Section 7.01, as soon as
available, but in any event within 30 days after the end of each fiscal
month of the Parent, the Parent shall deliver to the Administrative
Agent a consolidated balance sheet of the Consolidated Parties as at
the end of such fiscal month and the related consolidated statement of
earnings for such fiscal month and for the portion of the Parent's
fiscal year then ended, all in reasonable detail and certified by a
Responsible Officer of the Parent as fairly presenting the financial
condition and results of operations of the Consolidated Parties as of
such date and for the month then ended in accordance with GAAP, subject
only to normal year-end audit adjustments and the absence of footnotes,
(iii) in addition to the other conditions contained in Section 8.02(i),
any Investment consisting of an Acquisition (other than an Acquisition
in which a Consolidated Party has entered into a binding purchase
contract prior to the Effective Date with a maximum purchase price of
up to $2,000,000) shall require the approval of the Required Lenders,
(iv) the reinvestment right contained in Section 2.05(b)(iii) as it
relates to Dispositions shall be suspended so that Net Cash Proceeds in
excess of $2,500,000 obtained during fiscal year 2003 from all
Dispositions shall be required to be used to repay Loans and Cash
Collateralize the L/C Obligations in accordance with the terms of
Section 2.05(b)(vi) and (v) the Administrative Agent shall engage (at
the expense of the Parent) an independent consulting firm reasonably
acceptable to the Parent (the "Consultant") to examine and report on
the Borrowers' and the Guarantors' financial projections, reporting
systems and such other matters regarding the business and affairs of
the Borrowers and the Guarantors as the Administrative Agent may
reasonably request (including specifically without limitation a review
of the financial statements of the Parent for the fiscal quarter ending
March 31, 2003), all as directed by the Administrative Agent after
consultation with the Parent. In addition, on or before August 15,
2003, the Borrowers, the Guarantors, the Required Lenders and the
Administrative Agent shall enter into a mutually acceptable amendment
to the Loan Agreement (the "Loan Agreement Amendment").
(d) Waiver Termination. Notwithstanding anything in this
Waiver to the contrary, it is acknowledged and agreed that on the
earlier of (i) the occurrence of any Default or Event of Default (other
than the Financial Covenant Defaults), and (ii) any breach by the
Borrower of the terms of this Waiver (including a failure to execute
and deliver the Loan Agreement Amendment as described in Paragraph 1(c)
above) (the "Waiver Termination Date"), the waiver under this Waiver
thereafter shall terminate and no longer be in effect. If the Waiver
Termination Date occurs prior to the execution of
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the Loan Agreement Amendment as described in Paragraph 1(c) above, upon
the occurrence of the Waiver Termination Date, an Event of Default
shall exist and the Administrative Agent and the Lenders shall have all
rights under the Loan Agreement with respect thereto, including the
rights under Section 9.02.
(e) Reservation of Rights. Except for the specific waiver
set forth in clause (a) above, nothing contained herein shall be deemed
to constitute a waiver of (i) any rights or remedies the Administrative
Agent or any Lender may have under the Loan Agreement or any other Loan
Document or under applicable law or (ii) the Loan Parties' obligation
to comply fully with any duty, term, condition, obligation or covenant
contained in the Loan Agreement and the other Loan Documents not
specifically waived. The specific waiver set forth herein is a one-time
waiver and shall be effective only in this specific instance and only
until the Waiver Termination Date, and shall not obligate the Lenders
to waive any other Default or Event of Default, now existing or
hereafter arising.
2. Conditions Precedent. This Waiver shall become effective as of
the date when each of the following conditions precedent has been satisfied (the
"Effective Date"):
(a) The Administrative Agent shall have received
counterparts of this Waiver duly executed by each of the Loan Parties.
(b) The Administrative Agent shall have received duly
executed consents to the Waiver from (i) the Required Lenders and (ii)
Lenders holding in the aggregate at least a majority of the Revolving
Commitments.
(c) The Administrative Agent shall have received (i) for
the account of each Lender approving this Waiver on or before 5 p.m.
Eastern time, May 15, 2003, the waiver fees agreed to be paid in
connection with such approval, and (ii) all reasonable fees and
expenses incurred by the Administrative Agent in connection with the
negotiation, preparation, execution and delivery of this Waiver and the
other transactions contemplated herein including, without limitation,
the legal fees and expenses of Moore & Van Allen PLLC, counsel to the
Administrative Agent.
3. Miscellaneous.
(a) Representations and Warranties. Each Loan Party
represents and warrants to the Lenders that:
(i) the representations and warranties of the
Loan Parties set forth in Article VI of the Loan Agreement are
true and correct as of the date hereof, except, in each case,
for those that specifically relate to an earlier date or that
would not be correct because of the existence of the Financial
Covenant Defaults;
(ii) no event has occurred and is continuing
which constitutes a Default or an Event of Default (other than
the Financial Covenant Defaults); and
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(iii) the Collateral Documents in effect as of the
date of the Waiver create a valid perfected security interest
in, and Lien upon, the Collateral.
(b) Counterparts/Telecopy. This Waiver may be executed in
any number of counterparts, each of which when so executed and
delivered shall be an original, but all of which shall constitute one
and the same instrument. Delivery of executed counterparts by telecopy
shall be effective as an original and shall constitute a representation
that an original will be delivered if requested.
(c) Entirety. This Waiver and the other Loan Documents
embody the entire agreement between the parties and supersede all prior
agreements and understandings, if any, relating to the subject matter
hereof. These Loan Documents represent the final agreement between the
parties and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties.
(d) GOVERNING LAW. THIS WAIVER AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(e) Successors and Assigns. This Waiver shall be binding
upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
(f) Section References. Unless otherwise provided
therein, references herein to "Sections" are references to Sections of
the Loan Agreement.
(g) Execution by Administrative Agent. This Waiver is
executed by the Administrative Agent on behalf of itself and all
Lenders who have approved this Waiver pursuant to Section 11.01.
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SIGNATURE PAGE
WAIVER AGREEMENT
CENTRAL PARKING CORPORATION
The parties hereto have duly executed this Waiver as of the date first
above written.
BORROWERS: CENTRAL PARKING CORPORATION,
a Tennessee corporation
By: /s/ Monroe J. Carell, Jr.
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Name: Monroe J. Carell, Jr.
----------------------------
Title: Chairman and Chief
Executive Officer
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CENTRAL PARKING SYSTEM, INC.,
a Tennessee corporation
ALLRIGHT CORPORATION,
a Delaware corporation
KINNEY SYSTEM, INC.,
a Delaware corporation
CPS FINANCE, INC.,
a Delaware corporation
CENTRAL PARKING SYSTEM OF TENNESSEE, INC.,
a Tennessee corporation
By: /s/ Robert Votteler
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Name: Robert Votteler
----------------------------
Title: Vice President and
Treasurer
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GUARANTORS: CENTRAL PARKING SYSTEM OF NEW YORK, INC.,
a Tennessee corporation
KINNEY PARKING SYSTEM, INC.,
a New York corporation
CENTRAL PARKING SYSTEM OF PENNSYLVANIA, INC., a Tennessee corporation
CENTRAL PARKING SYSTEM OF VIRGINIA, INC. (F/K/A DIPLOMAT PARKING CORP.), a DC corporation
CENTRAL PARKING SYSTEM OF TEXAS, INC.,
a Texas corporation
CENTRAL PARKING SYSTEM OF OHIO, INC.,
a Tennessee corporation
CENTRAL PARKING SYSTEM OF FLORIDA, INC.,
a Tennessee corporation
ALLRIGHT NEW YORK PARKING, INC.,
a New York corporation
CENTRAL PARKING SYSTEM OF NEW JERSEY, INC., a New Jersey corporation
ALLRIGHT PARKING MANAGEMENT, INC.,
a Delaware corporation
CENTRAL PARKING SYSTEM OF GEORGIA, INC.,
a Tennessee corporation
USA PARKING SYSTEM, INC. (F/K/A MARLIN, INC.),
a Tennessee corporation
CENTRAL PARKING SYSTEM OF LOUISIANA, INC.,
a Tennessee corporation
CENTRAL PARKING SYSTEM OF MARYLAND, INC.,
a Tennessee corporation
CENTRAL PARKING SYSTEM REALTY OF NEW YORK, INC., a Tennessee corporation
CENTRAL PARKING SYSTEM OF WASHINGTON, INC., a Tennessee corporation
CENTRAL PARKING SYSTEM OF MISSOURI, INC. (F/K/A CPS-ST. LOUIS, INC.), a Tennessee corporation
CENTRAL PARKING SYSTEM OF WISCONSIN, INC.,
a Tennessee corporation
By: /s/ Robert Votteler
---------------------------------
Name: Robert Votteler
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Title: Vice President and Treasurer
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of each of the foregoing Guarantors
[signature pages continue]
SIGNATURE PAGE
WAIVER AGREEMENT
CENTRAL PARKING CORPORATION
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Michael Brashler
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Name: Michael Brashler
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Title: Vice President
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