Execution
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FORBEARANCE
AGREEMENT
This Forbearance Agreement, dated as of June 10,
2009 (the “ Forbearance Agreement ”) is entered
into by and among PARKING COMPANY OF AMERICA AIRPORTS, LLC ,
a Delaware limited liability company (“ PCAA ”),
PARKING COMPANY OF AMERICA AIRPORTS PHOENIX, LLC , a
Delaware limited liability company (“ PCAA Phoenix
”), PCAA SP, LLC , a Delaware limited liability
company (“ PCAA SP ”), and PCA AIRPORTS,
LTD. , a Texas limited partnership (“ PCAA Texas
” and, together with PCAA, PCAA Phoenix, and PCAA SP,
individually and collectively as the context requires, the “
Borrower ”), PCAA PARENT, LLC , a Delaware
limited liability company (the “ Guarantor ”),
DEKABANK DEUTSCHE GIROZENTRALE , a bank organized under the
laws of Germany, in its capacity as holder of Note A-1 (“
Deka ”), DEUTSCHE HYPOTHEKENBANK AG , a bank
organized under the laws of Germany, in its capacity as holder of
Note A-2 (“ Hypo ”), and ING REAL ESTATE
FINANCE (USA) LLC , a Delaware limited liability company, in
its capacity as holder of Note A-3 (“ ING ” and
together with Deka and Hypo, the “ Note A Co-Lenders
”), CAPMARK FINANCE, INC. , a California corporation,
in its capacity as holder of Note B-1 (“ Capmark
”), CAPMARK STRUCTURED REAL ESTATE, LTD. , a limited
liability company organized under the laws of the Cayman Islands,
in its capacity as holder of Note B-2 (“ CSRE
” and together with Capmark, 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 , a Delaware limited
liability company, 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. , a California
corporation, 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
”), with respect to the Loan Agreement dated as of September
1, 2006 and as amended pursuant to that certain First Amendment to
Loan Agreement, dated as of December 4, 2006 (as amended, the
“ Loan Agreement ”).
WITNESSETH
:
WHEREAS, pursuant to the Loan Agreement, the
Lenders have made Loans and other extensions of credit to the
Borrower which remain outstanding;
WHEREAS, one or more Designated Defaults (as
defined below) have occurred and are continuing or are expected to
occur and continue during the Forbearance Period;
WHEREAS, notwithstanding the existence of such
Designated Defaults, the Agents and the Lenders have agreed to
forbear, during the Forbearance Period, from exercising remedies
and taking certain remedial actions under the Loan Agreement, the
other Loan Documents and applicable law solely with respect to such
Designated Defaults on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises
and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms
. Unless otherwise defined herein,
capitalized terms used herein have the meanings assigned in the
Loan Agreement and the other Loan Documents, and the following
terms shall have the following meanings:
“ Capital Expenditures ”
shall mean for any period, with respect to any Person, the
aggregate of all expenditures by such Person for the acquisition or
leasing (pursuant to a capital lease) of fixed or capital assets or
additions to equipment (including replacements, capitalized repairs
and improvements during such period, but excluding any depreciation
or amortization) which are required to be capitalized under GAAP on
a balance sheet of such Person.
“ Capital Lease Obligations ”
shall mean with respect to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property,
or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet
of such Person under GAAP; and, for the purposes of this
Forbearance Agreement, the amount of such obligations at any time
shall be the capitalized amount thereof at such time
determined in accordance with GAAP.
“ Cash Flow Forecast ” shall
mean the rolling consolidated 13-week cash flow and financial
projections of the Guarantor and its subsidiaries covering the
period beginning the Effective Date and itemizing on a weekly basis
all revenues projected to be received and all expenditures proposed
to be made during such periods and other cash flow and financial
projections, and reporting any variances from the initial Cash Flow
Forecast for both the prior week ended on (and including) the
immediately preceding Saturday and the cumulative period to date,
and providing a written explanation of such variances, which shall
at all times be in form and substance reasonably satisfactory to
the Agents and the Lenders. The initial Cash Flow Forecast is
attached hereto as Exhibit A .
“ Collateral ” shall mean,
collectively, all assets and property of the Borrower and Guarantor
that are from time to time subject to, or required to be subject
to, a Lien pursuant to the Loan Agreement, Security Instruments and
any other agreements executed to secure Borrower’s payment of
the Loan and performance of the Obligations.
“ Designated Defaults ” shall
mean the Events of Default occurring as a result of (i)
Guarantor’s failure to maintain the required Net Worth
pursuant to Section 9.18 of the Loan Agreement, (ii)
Guarantor’s failure to maintain the required Liquidity
pursuant to Section 9.19 of the Loan Agreement, (iii)
Borrower’s failure to pay in cash interest as set forth in
the Loan Agreement pursuant to Section 11.01(a) of the Loan
Agreement, (iv) Borrower’s failure to make any Swap Payment
pursuant to Section 11.01(s) of the Loan Agreement.
“ Effective Date ” shall mean
the date hereof, but only upon satisfaction or waiver of the
conditions precedent specified in Article V of this
Forbearance Agreement.
“ Expiration Date ” shall
mean August 31, 2009.
“ Forbearance Period ” shall
mean the period beginning on the Effective Date and ending on the
earlier of (a) the Expiration Date and (b) the Termination
Date.
“ Indebtedness ” shall mean
that of any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations
of such Person for the deferred purchase price of property or
services (other than trade payables incurred in the ordinary course
of such Person’s business), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event
of default are limited to repossession or sale of such property),
(e) all Capital Lease Obligations of such Person, (f) all
obligations of such Person, contingent or otherwise, as an account
party or applicant under acceptance, letter of credit or similar
facilities, (g) all obligations of such Person, contingent or
otherwise, to purchase, redeem, retire or otherwise acquire for
value any capital stock of such Person, (h) all guaranteed
obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (g) above; (i) all obligations
of the kind referred to in clauses (a) through (h) above secured by
(or for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any lien on property
(including, without limitation, accounts and contract rights) owned
by such Person, whether or not such Person has assumed or become
liable for the payment of such obligation, and (j) the liquidation
value of any preferred capital stock of such Person or its
subsidiaries that is held by any Person other than the issuer
thereof and its wholly owned subsidiaries.
“ Investments ” shall mean
any advance, loan, extension of credit (by way of guaranty or
otherwise) or capital contribution to, or purchase any capital
stock, bonds, notes, debentures or other debt securities of, or any
assets constituting an ongoing business from, or make any other
investment in, any other Person.
“ Termination Date ” shall
mean the date on which any event identified in Article III
of this Forbearance Agreement shall occur.
ARTICLE II
FORBEARANCE
Section 2.1 Forbearance . Subject to the terms and conditions hereof,
each of the Agents and the Lenders hereby agree to forbear, during
the Forbearance Period, from the exercise of any and all rights or
remedies they may have with respect to, and only with respect to,
the Borrower or the Guarantor under the Loan Agreement, the other
Loan Documents and applicable law (including, without limitation,
exercising any remedies upon any cash held by the Borrower or
the Guarantor in any account including, without limitation,
any Collection Account or Deposit Account), solely in respect
of the Designated Defaults. Furthermore, the Borrower and Guarantor
shall not be required during the Forbearance Period (i) under
section 4.09 of the Loan Agreement to deposit Excess Cash Flow from
the Property in the Excess Cash Flow Reserve Account, (ii) under
section 7.02(iii) of the Loan Agreement, to maintain at least one
independent Board member at each of the Single Purpose Entities and
(iii) with respect to Parking Leases associated with Hartford and
Cleveland airports, (A) under section 9.20 of the Loan Agreement,
to comply with all Parking Lease requirements and (B) under section
10.03 of the Loan Agreement, to obtain Lender permission prior to
obtaining Partial Releases of Property; provided ,
however , that management shall obtain the Administrative
Agent’s consent prior to taking any action described in (iii)
above.
Section 2.2 Accrual of Interest.
Notwithstanding anything contained
in the Loan Agreement or other Loan Documents to the contrary,
during the Forbearance Period, all interest owing in respect of the
Loans shall accrue interest at a rate per annum equal to the
non-default rate of interest. All interest that becomes due and
payable during the Forbearance Period shall be paid-in-kind and
capitalized.
ARTICLE III
EVENTS OF TERMINATION
Section
3.1 Upon the occurrence
of any of the following events:
(a) the Borrower or the Guarantor shall default
in the observance of any agreement contained in this Forbearance
Agreement;
(b) any payment is made by the Borrower or the
Guarantor or any of their subsidiaries with respect to the Rate
Swap Agreement;
(c) the occurrence of an Event of Default under
the Loan Agreement (other than a Designated Default); or
(d) the exercise of any rights or remedies
against the Guarantor or any of its subsidiaries, with respect to
any Indebtedness in excess of $500,000 (other than any Indebtedness
arising under or in connection with the Rate Swap Agreement),
including without limitation, the acceleration of any amounts due
or to become due to such holders;
then, and in
any such event, the provisions of Article II of this
Forbearance Agreement shall immediately and automatically
terminate, and thereafter such Section shall have no force or
effect.
ARTICLE IV
AGREEMENTS
Section 4.1 Cash Flow Forecast.
(a) The Borrower and Guarantor shall furnish to
the Agents, for distribution to the Lenders, as soon as available
but no later than 5:00PM EST each Wednesday during the Forbearance
Period, an updated Cash Flow Forecast which shall set forth (i) a
comparative reconciliation, on a line by line basis, of actual cash
receipts and disbursements against the cash receipts and
disbursements forecasted in the initial Cash Flow Forecast, and the
percentage variance thereof, for (A) the weekly period ended on
(and including) the immediately preceding Saturday and (B) the
cumulative period to date, (ii) a written explanation of such
variances, and (iii) projections for the following 13 weeks,
including a rolling cash receipts and disbursements forecast for
such period. To be clear, the variances measured throughout the
Forbearance Period, in accordance with (i) above, will always be
measured against the initial Cash Flow Forecast and not against any
subsequent version thereof.
(b) The Borrower and Guarantor agree that (i)
except as otherwise provided herein, they shall not make or commit
to make any Capital Expenditures, Investments or other payments
other than those identified in the initial Cash Flow Forecast; and
(ii) on the last business day of any week, such Capital
Expenditures, Investments and other payments for such cumulative
period to date shall not exceed 110% (on a book value basis) of the
amounts, on an aggregate basis, set forth for such cumulative
period to date in the initial Cash Flow Forecast; provided,
however , that such 110% variance test will not become
effective for the first week of the cumulative period to date but
will become effective for the second week of the cumulative period
and will remain effective thereafter through
