Exhibit 10.28
EXECUTED COPY
WAIVER AGREEMENT
THIS WAIVER AGREEMENT (this "Waiver") entered into as of October 12,
2005 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"), XXXXXX SYSTEM, INC.,
a Delaware corporation ("Xxxxxx"), CPS FINANCE, INC., a Delaware corporation
("CPSF"), CENTRAL PARKING SYSTEM OF TENNESSEE, INC., a Tennessee corporation
("CPST"), (CPC, CPS, Allright, Xxxxxx, 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"),
and as Swing Line Lender and L/C Issuer. Capitalized terms used herein and not
otherwise defined shall have the respective meanings given to them in the Credit
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 "Credit Agreement");
WHEREAS, on September 29, 2005, CPC determined that it will restate its
quarterly financial statements for the first three quarters of CPC's fiscal year
ending September 30, 2005 as a result of events more particularly described in
the Current Report on Form 8-K that CPC filed with the SEC on September 30,
2005, all as more particularly set forth in said Current Report (the "Quarterly
Restatements");
WHEREAS, CPC is engaged in work to determine the quarterly and year-end
financial results of its UK operations and, although the year-end review and
investigation are not concluded, at this time CPC believes that there may be a
negative financial impact on its prior fiscal 2005 quarters in the range of
$8-10 million, consisting primarily of over-accrual of revenues and improper
capitalization of expenses, with the overall negative financial impact on CPC's
fiscal year ending September 30, 2005 (including the $8-10 million related to
prior quarters) being estimated to be in the range of $13-15 million, including
current period operating losses and anticipated expenses of the investigation
(the foregoing, the "Anticipated Total Adjustment");
WHEREAS, pursuant to Section 5.02, upon any Request for Credit Extension,
CPC (on behalf of itself and the other Borrowers) makes certain representations
and warranties, including representations pursuant to Sections 6.05(b) and
6.05(d) as to the extent to which the most recent financial statements furnished
to the Administrative Agent pursuant to Section 7.01(b) are prepared in
accordance with GAAP and present fairly the consolidated financial condition,
results of operations and cash flows of the Consolidated Parties as of the dates
thereof and for the periods covered thereby (the "Financial Statement
Representations");
WHEREAS, CPC and the other Borrowers have requested that the Lenders waive
the Financial Statement Representations solely with respect to the quarterly
financial statements that are the subject of the Quarterly Restatements (the
"Q1-Q3 Financial Statements"), and any corresponding certifications otherwise
made or deemed made pursuant to the Credit Agreement with respect to the Q1-Q3
Financial Statements, solely to the extent of the Quarterly Restatements;
WHEREAS, following the completion of the Quarterly Restatements, it may be
determined that one or more Events of Default had previously occurred under the
Credit Agreement as a result of the Parent's failure to comply, for the fiscal
quarters ending December 31, 2004, March 30, 2005 and June 30, 2005, with the
Consolidated Leverage Ratio, the Consolidated Senior Leverage Ratio and/or the
Consolidated Fixed Charge Coverage Ratio set forth in Sections 8.11(a), (b) and
(c) respectively (collectively, the "Financial Covenant Defaults");
WHEREAS, CPC and the other Borrowers have requested that the Lenders (i)
waive the Financial Statement Representations solely with respect to the Q1-Q3
Financial Statements, and any corresponding certifications otherwise made or
deemed made pursuant to the Credit Agreement with respect to the Q1-Q3 Financial
Statements, in each case to the extent of the Quarterly Restatements, and (ii)
waive the Financial Covenant Defaults (if and to the extent any shall have
occurred), in each case, as of the Effective Date (as defined below); and
WHEREAS, the Required 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. Acknowledgement and Waiver.
(a) Waiver of Financial Statement Representations. Subject to the
satisfaction of all of the terms and conditions set forth in this Waiver,
the Required Lenders hereby waive (i) the Financial Statement
Representations solely with respect to the Q1-Q3 Financial Statements, and
(ii) any corresponding certifications otherwise made or deemed made
pursuant to the Credit Agreement with respect to the Q1-Q3 Financial
Statements, in each case solely to the extent of the Quarterly
Restatements.
(b) Waiver of Financial Covenant Defaults. Subject to the satisfaction
of all of the terms and conditions set forth in this Waiver, the Lenders
hereby waive the Financial Covenant Defaults (if and to the extent any
shall have occurred).
(c) Reservation of Rights. Except for the specific waivers set forth
in clause (a) and clause (b) above, nothing contained herein shall be
deemed to constitute a
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waiver of (i) any rights or remedies the Administrative Agent or any Lender
may have under the Credit 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 Credit
Agreement and the other Loan Documents not specifically waived. The
specific waivers set forth herein are effective only with respect to the
Q1-Q3 Financial Statements, the Quarterly Restatements and any
corresponding Financial Covenant Defaults, 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 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 Xxxxx & Xxx Xxxxx PLLC, counsel to the
Administrative Agent.
3. Miscellaneous.
(a) Representations and Warranties. Each Loan Party represents and
warrants to the Lenders that, after giving effect to this Waiver:
(i) the representations and warranties of the Loan Parties set
forth in Article VI of the Credit Agreement are true and correct as of
the date hereof except, in each case, for those that specifically
relate to an earlier date; and
(ii) no event has occurred and is continuing that constitutes a
Default or an Event of Default.
(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
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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 herein, references
herein to "Sections" are references to Sections of the Credit 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/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Chief Financial Officer
CENTRAL PARKING SYSTEM, INC.,
a Tennessee corporation
ALLRIGHT CORPORATION,
a Delaware corporation
XXXXXX SYSTEM, INC.,
a Delaware corporation
CPS FINANCE, INC.,
a Delaware corporation
CENTRAL PARKING SYSTEM OF TENNESSEE, INC.,
a Tennessee corporation
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Chief Financial Officer
SIGNATURE PAGE
WAIVER AGREEMENT
CENTRAL PARKING CORPORATION
GUARANTORS: CENTRAL PARKING SYSTEM OF NEW YORK, INC.,
a Tennessee corporation
XXXXXX 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
CENTRAL PARKING SYSTEM OF GEORGIA, INC.,
a Tennessee corporation
USA PARKING SYSTEM, INC. (F/K/A XXXXXX, 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/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Chief Financial Officer
of each of the foregoing Guarantors
[signature pages continue]
SIGNATURE PAGE
WAIVER AGREEMENT
CENTRAL PARKING CORPORATION
BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and
L/C Issuer
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: SVP
