EXHIBIT 10.1
REVOLVING CREDIT NOTE
November 1, 2002 $10,000,000.00
FOR VALUE RECEIVED, CENTRAL PARKING CORPORATION, a Tennessee
corporation (the "Borrower"), promises and agrees to pay to the order of
SUNTRUST BANK, a Georgia state banking corporation (the "Lender"), at its
offices in Nashville, Tennessee, or at such other place as may be designated in
writing by the holder, in lawful money of the United States of America, the
principal sum of up to TEN MILLION and no/100 Dollars ($10,000,000.00) (the
"Revolving Commitment"), or so much thereof as may be advanced from time to time
by the Lender, together with interest from the date hereof on the unpaid
principal balance outstanding from time to time hereon computed at a variable
rate of interest equal to LIBOR plus 87.5 basis points per annum. As used
herein, LIBOR shall mean the rate per annum for deposits in U.S. dollars for a
one month period appearing on that page of the Bloomberg's Report which displays
British Banker's Association Interest Settlement Rates for deposits in U.S.
dollars (or if page or service shall cease to be available, such other page on
that service or such other service designated by the British Banker's
Association for the display of such Association's Interest Settlement Rates for
Dollar deposits) as of 11:00 a.m. (London, England time) on the first day of
each month during the term of this Note; provided, that if such rate or service
is not available to the Lender for any reason, LIBOR shall mean the rate of
interest determined by the Lender to be the average (rounded upward, if
necessary, to the nearest 1/100th of 1%) of the rates per annum at which
deposits in U.S. dollars are offered to the Lender the first day of each month
during the term of this Note by leading banks in the London interbank market as
of 10:00 a.m. (Nashville, Tennessee time) for a one month period and in an
amount comparable to the amount of the outstanding balance under this Note.
LIBOR shall be set as of the date of this Note and then reset on the 1st
business day of each month thereafter during the term of this Note. The interest
rate hereunder shall be calculated based on a year of 360 days for the actual
number of days elapsed.
As long as no Event of Default (as defined below) (or any event that
would constitute an Event of Default upon the giving of notice or passage of
time or both) has occurred, Borrower may borrow, repay, reborrow and repay
hereunder until the Maturity Date (as defined below); provided that at no time
shall the principal amount outstanding hereunder exceed the face amount of the
Note. If such excess occurs, Borrower shall immediately pay to Lender all
principal outstanding hereunder in excess of the face amount of the Note, plus
all interest and other charges accrued on such excess.
As additional consideration for ▇▇▇▇▇▇'s committing and reserving
monies to fund the Revolving Commitment, Borrower shall pay to Lender on the 1st
day of each month during the term of this Note until and including the Maturity
Date, a fee equal to 25 basis points per annum of the average unused portion of
the Revolving Commitment during the prior calendar month.
This Note shall be payable as follows: (a) commencing on the 1st day of
December, 2002 and on the first day of each consecutive month thereafter through
and including February 1, 2003, the Borrower shall pay to the Lender an amount
equal to all then accrued interest; and (b) this Note shall mature on February
28, 2003 (the "Maturity Date"), at which time the Borrower shall pay to the
Lender an amount equal to all outstanding principal, plus all accrued interest
and any outstanding fees or other amounts due hereunder; provided that in the
event Borrower fails to deliver a resolution executed by each member of its
Board of Directors (or approved by its Board of Directors in accordance with
its bylaws at a regularly scheduled meeting) authorizing the execution of this
Note by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. on behalf of the Borrower prior to December
15, 2002, this Note shall mature on December 15, 2002, at which time the
Borrower shall pay to the Lender an amount equal to all outstanding principal,
plus all accrued interest and any outstanding fees or other amounts due
hereunder.
Borrower represents and warrants to Lender that this Note is a valid,
binding and enforceable obligation of the Borrower, without any further
corporate action of the Borrower required. The delivery of the resolution as
described above is a memorialization of the valid approval by the Borrower of
the execution of this Note.
Notwithstanding any provision to the contrary, it is the intent of the
Lender, the Borrower, and all parties liable on this Note, that neither the
Lender nor any subsequent holder shall be entitled to receive, collect, reserve
or apply, as interest, any amount in excess of the maximum lawful rate of
interest permitted to be charged by applicable law or regulations, as amended or
enacted from time to time. In the event the Note calls for an interest payment
that exceeds the maximum lawful rate of interest then applicable, such interest
shall not be received, collected, charged, or reserved until such time as that
interest, together with all other interest then payable, falls within the then
applicable maximum lawful rate of interest. In the event the Lender, or any
subsequent holder, receives any such interest in excess of the then maximum
lawful rate of interest, such amount which would be excessive interest shall be
deemed a partial prepayment of principal and treated hereunder as such, or, if
the principal indebtedness evidenced hereby is paid in full, any remaining
excess funds shall immediately be paid to the Borrower. In determining whether
or not the interest paid or payable, under any specific contingency, exceeds the
maximum lawful rate of interest, the Borrower and the Lender shall, to the
maximum extent permitted under applicable law, (a) exclude voluntary prepayments
and the effects thereof, and (b) amortize, prorate, allocate, and spread, in
equal parts, the total amount of interest throughout the entire term of the
indebtedness; provided that if the indebtedness is paid in full prior to the end
of the full contemplated term hereof, and if the interest received for the
actual period of existence hereof exceeds the maximum lawful rate of interest,
the holder of the Note shall refund to the Borrower the amount of such excess or
credit the amount of such excess against the principal portion of the
indebtedness as of the date it was received, and, in such event, the Lender
shall not be subject to any penalties provided by any laws for contracting for,
charging, reserving, collecting or receiving interest in excess of the maximum
lawful rate of interest.
Any of the following events shall be considered an "Event of Default"
hereunder:
(a) Principal and Interest Payments. Borrower fails to pay any
installment of principal or interest on this Note, or any other amount due
hereunder or under any other agreement executed in connection herewith or
related hereto, within 10 calendar days of the date such payment is due; or
(b) Representations and Warranties. Any representation, warranty,
statement (including financial statements) certification or data made or
furnished by or on behalf of Borrower in connection with this Note is incorrect
in any material respect as of the date which the facts therein set forth were
stated or certified; or
(c) Obligations. Borrower fails to perform any of the other
promises or obligations contained in or required by this Note or in or any other
document or agreement relating to or otherwise executed in connection herewith;
or
(d) Involuntary Bankruptcy or Receivership Proceedings. Any of the
following events or conditions occurs with respect to Borrower: (i) a receiver,
custodian, liquidator, or trustee of itself or of any of its real, personal,
tangible, intangible or mixed property or assets of Borrower (the "Property") is
appointed by the order or decree of any court or agency or supervisory authority
having jurisdiction; or (ii) any Property is sequestered by court order; or
(iii) a petition is filed against it under any state or federal bankruptcy,
reorganization, debt arrangement,
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insolvency, readjustment of debt, dissolution, liquidation or receivership law
of any jurisdiction, whether now or hereafter in effect; or
(e) Voluntary Petitions. Borrower files (or takes affirmative
steps to prepare to file) a voluntary bankruptcy petition or other petition to
seek relief under any provision of any bankruptcy, reorganization, debt
arrangement, insolvency, readjustment of debt, dissolution or liquidation law of
any jurisdiction or consents to the filing of any such petition against it under
any such law; or
(f) Assignments for Benefit of Creditors, Etc. ▇▇▇▇▇▇▇▇ makes an
assignment for the benefit of its creditors, or admits in writing its inability
to pay its debts generally as they become due, or consents to the appointment of
a receiver, trustee, or liquidator of itself or of all or any part of its
Property; or
(g) Cross Default. An event occurs or circumstances arise which
would give rise to a default under that certain $400,000,000 Senior Credit
Facility dated March 19, 1999 (as such has been or may be amended and/or
restated from time to time, the "Credit Facility") among Central Parking
Corporation, Central Parking Systems, Inc., Central Parking Systems Realty,
Inc., Central Parking Systems of Massachusetts, Inc., CPC Finance of Tennessee,
Inc., ▇▇▇▇▇▇ Systems of Sudbury St., Inc., and Allright Holdings, Inc., as
borrowers, Bank of America, N.A., successor-in-interest to NationsBank, N.A., as
administrative agent, and certain financial institutions from time to time party
thereto as lenders, whether or not the administrative agent and/or lenders, as
applicable, waive such default or choose to exercise the remedies available to
them thereunder arising from such default; or
Upon the occurrence of an Event of Default under Section (a), (b), (d),
(e), (f), or (g) above, the entire indebtedness evidenced hereby shall
automatically be immediately due and payable, without notice; and upon the
occurrence of any other Event of Default, subject to a thirty (30) day, at the
option of Lender, the entire indebtedness evidenced hereby shall become due,
payable and collectible then or thereafter, without notice, as Lender may elect,
regardless of the Maturity Date.
Principal and unpaid interest bear interest following an Event of
Default at LIBOR plus 500 basis points per annum. In case of suit, or if this
obligation is placed in an attorney's hands for collection, or to protect the
security for its payment, the undersigned will pay all costs of collection and
litigation, including a reasonable attorney's fee.
The makers, endorsers, guarantors and all parties to this Note and all
who may become liable for same, jointly and severally waive presentment for
payment, protest, notice of protest, notice of nonpayment of this Note, demand
and all legal diligence in enforcing collection, and hereby expressly agree that
the lawful owner or holder of this Note may defer or postpone collection of the
whole or any part thereof, either principal and/or interest, or may extend or
renew the whole or any part thereof, either principal and/or interest, or may
accept additional
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collateral or security for the payment of this Note, or may release the whole or
any part of any collateral security and/or liens given to secure the payment of
this Note, or may release from liability on account of this Note any one or more
of the makers, endorsers, guarantors and/or other parties thereto, all without
notice to them or any of them; and such deferment, postponement, renewal,
extension, acceptance of additional collateral or security and/or release shall
not in any way affect or change the obligation of any such maker, endorser,
guarantor or other party to this Note, or of any who may become liable for the
payment thereof.
This Note has been executed and delivered in, and shall be governed by
and construed according to the laws of the State of Tennessee except to the
extent pre-empted by applicable laws of the United States of America. If any
provision of this Note should for any reason be invalid or unenforceable, the
remaining provisions hereof shall remain in full force and effect.
TIME IS OF THE ESSENCE WITH REGARDS TO EACH AND EVERY PROVISION OF THIS
NOTE.
BORROWER AND LENDER HEREBY IRREVOCABLY CONSENT TO THE JURISDICTION OF
THE COURTS LOCATED IN DAVIDSON COUNTY, TENNESSEE, INCLUDING WITHOUT LIMITATION
FEDERAL COURTS SITTING IN THE MIDDLE DISTRICT OF TENNESSEE AND THE CHANCERY
COURT FOR DAVIDSON COUNTY, TENNESSEE, FOR ANY SUIT BROUGHT OR ACTION COMMENCED
IN CONNECTION WITH THIS NOTE.
▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇ ▇▇▇▇▇▇ KNOWINGLY, WILLINGLY AND IRREVOCABLY WAIVE
THEIR RIGHT TO DEMAND A JURY TRIAL IN ANY ACTION OR PROCEEDING INVOLVING THIS
NOTE.
This Note may not be changed or terminated without the prior written
approval of the Borrower and the Lender. No waiver of any term or provision
hereof shall be valid unless in writing signed by the holder.
Executed this 1st day of November, 2002.
BORROWER:
CENTRAL PARKING CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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Title: CEO
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