EXHIBIT 10.2
PROMISSORY NOTE
$10,000,000 January 8, 2003
FOR VALUE RECEIVED, CENTRAL PARKING CORPORATION, a Tennessee
corporation (the "Borrower"), hereby promises to pay to the order of BANK OF
AMERICA, N.A. and its successors and assigns (the "Bank"), on or before the last
day of the applicable Interest Period in the case of an advance bearing interest
based on the Eurodollar Rate, or the maturity date of the applicable advance
mutually agreed upon by the Borrower and the Bank in the case of an advance
bearing interest based on the Base Rate, but not in any event later than the
earliest to occur of (i) March 31, 2003 or (ii) the date of any termination,
replacement or refinancing of the Credit Agreement (the "Maturity Date") at its
offices at 414 Union Street, Nashville, Tennessee 37239 (or such other offices
as the Bank may direct) in immediately available funds TEN MILLION DOLLARS
($10,000,000) or, if less, the aggregate unpaid principal amount of all advances
made to the Borrower pursuant to this Note, together with interest thereon as
hereinafter set forth.
1. ADVANCES; CONDITIONS TO LOANS AND INTEREST RATES.
During the term of this Note, subject to the terms and conditions
hereof, the Borrower shall request advances hereunder in the manner set forth
for Revolving Loans in Section 2.1(b)(i) of the Credit Agreement (except that
requests shall be made to the Bank rather than to the Administrative Agent under
the Credit Agreement as literally provided therein).
The making of any advance hereunder shall be subject to satisfaction of
the each of the following conditions: (a) the Bank must receive the following
from the Borrower in form satisfactory to the Bank (i) the enclosed duplicate of
this Note duly executed and delivered on behalf of the Borrower and each
Guarantor; (ii) on or prior to January 29, 2003, a certified borrowing
resolution or other evidence of the Borrower's authority to borrow and each
Guarantors' authority to guarantee; (iii) a certificate of incumbency; and (iv)
such other documents and certificates as the Lender may reasonably request and
(b) each of the conditions under Section 5.2 of the Credit Agreement. The
Borrower acknowledges and agrees that each request for and acceptance of any
such advance shall be deemed confirmation by the Borrower that each of the
foregoing conditions have been satisfied.
At the option of the Borrower, advances hereunder shall bear interest
at a rate per annum equal to (i) the Eurodollar Rate plus 0.875%; or (ii) the
Base Rate, and shall be on the same basis and terms, as provided for Revolving
Loans under Sections 2 and 3 of the Credit Agreement, all of which are
incorporated herein by reference.
2. FEES AND EXPENSES.
The Borrower promises to pay the reasonable costs and expenses of the
Bank, including the reasonable fees and disbursements of counsel, in connection
with the preparation, execution and establishment of the line of credit
evidenced by this Note.
3. PAYMENTS AND PREPAYMENTS.
The aggregate principal amount of all advances hereunder, together with
all accured and unpaid interest thereon, shall be paid in full by the Borrower
on the Maturity date. All payments of principal, interest and fees shall be made
in U.S. dollars in immediately available funds, without offset, deduction,
counterclaim or withholding of any kind at the offices of the Bank at 414 Union
Street, Nashville, Tennessee 37239, or such other offices as the Bank may
direct. The Borrower may make voluntary prepayments hereunder at any time in any
amount without penalty or premium (other than break-funding indemnity payments
which may be owing in connection therewith). Amounts repaid on the advances
hereunder may be reborrowed in accordance with the terms and conditions hereof.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS.
The representations and warranties contained in Section 6 of the Credit
Agreement as in effect on the date hereof (the "Incorporated Representations")
and the affirmative and negative covenants contained in Sections 7 (other than
Section 7.9(a) and (c)) and 8, respectively, of the Credit Agreement as in
effect on the date hereof (the "Incorporated Covenants") are incorporated herein
by reference with the same effect as if stated at length. The Borrower
represents and warrants to the Bank that the Incorporated Representations are
true and correct in all material respects as of the date hereof (except for
those which expressly relate to an earlier date) and covenant and agree that the
Incorporated Covenants shall be as binding on the Borrower as if set forth fully
herein, provided that (i) the Incorporated Representations and the Incorporated
Covenants shall run in favor of the Bank hereunder (rather than the
Administrative Agent and the Lenders under the Credit Agreement as literally
provided in the Credit Agreement), (ii) in the event of the amendment or
modification of any of the representations and warranties contained in Section 6
of the Credit Agreement or any of the affirmative or negative covenants
contained in Sections 7 and 8 of the Credit Agreement, the Incorporated
Representations and the Incorporated Covenants shall be as in effect immediately
prior to such amendment or modification, unless the Bank consents to such
amendment or modification of the terms hereof, and (iii) in the event that the
Credit Agreement shall be refinanced, repaid, terminated or replaced by another
credit agreement, the Incorporated Representations and the Incorporated
Covenants shall be as in effect immediately prior to such refinancing or
replacement.
5. GUARANTY.
(a) THE GUARANTY. Each of the Guarantors hereby jointly and
severally guarantees to the Lender, as primary obligor and not as surety, the
prompt payment of the Obligations in full when due (whether at stated maturity,
as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in accordance with the terms thereof.
The Guarantors hereby further agree that if any of the Obligations are not paid
in full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise), the
Guarantors will, jointly and severally, promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Obligations, the same will be promptly paid in
full when due (whether at extended maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) in accordance
with the terms of such extension or renewal.
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Notwithstanding any provision to the contrary contained herein, the
obligations of each Guarantor under this Note shall be limited to an aggregate
amount equal to the largest amount that would not render such obligations
subject to avoidance under the Debtor Relief Laws or any comparable provisions
of any applicable state law.
(b) OBLIGATIONS UNCONDITIONAL. The obligations of the Guarantors
under Section 5(a) are joint and several, absolute and unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability
of the Note, or any other agreement or instrument referred to therein, or any
substitution, release, impairment or exchange of any other guarantee of or
security for any of the Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this subsection (b) that the obligations of
the Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that such Guarantor shall have no right of
subrogation, indemnity, reimbursement or contribution against the Borrower or
any other Guarantor for amounts paid under this Section 5 until such time as the
Obligations have been paid in full and the Commitment has expired or terminated.
Without limiting the generality of the foregoing, it is agreed that, to the
fullest extent permitted by law, the occurrence of any one or more of the
following shall not alter or impair the liability of any Guarantor hereunder,
which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of
the Obligations shall be extended, or such performance or compliance
shall be waived;
(ii) any of the acts mentioned in any of the provisions of the
Note, or any other agreement or instrument referred to in this Note
shall be done or omitted;
(iii) the maturity of any of the Obligations shall be accelerated,
or any of the Obligations shall be modified, supplemented or amended in
any respect, or any right under this Note, or any other agreement or
instrument referred to in this Note shall be waived or any other
guarantee of any of the Obligations or any security therefor shall be
released, impaired or exchanged in whole or in part or otherwise dealt
with; or
(iv) any of the Obligations shall be determined to be void or
voidable (including, without limitation, for the benefit of any
creditor of any Guarantor) or shall be subordinated to the claims of
any Person (including, without limitation, any creditor of any
Guarantor).
With respect to its obligations hereunder, each Guarantor hereby
expressly waives diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that the Lender exhaust any right, power
or remedy or proceed against any Person under this Note, or any other agreement
or instrument referred to in this Note, or against any other Person under any
other guarantee of, or security for, any of the Obligations.
(c) REINSTATEMENT. The obligations of the Guarantors under this
Section 5 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Person in respect of the Obligations
is rescinded or must be otherwise restored by any holder of any of the
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or
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otherwise, and each Guarantor agrees that it will indemnify the Lender on demand
for all reasonable costs and expenses (including, without limitation, fees and
expenses of counsel) incurred by the Lender in connection with such rescission
or restoration, including any such costs and expenses incurred in defending
against any claim alleging that such payment constituted a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law.
(d) CERTAIN ADDITIONAL WAIVERS. Without limiting the generality of
the provisions of this Section 5, each Guarantor hereby agrees that such
Guarantor shall have no right of recourse to security for the Obligations,
except through the exercise of rights of subrogation pursuant to Section 5(b)
and through the exercise of rights of contribution pursuant to Section 5(f).
(e) REMEDIES. The Guarantors agree that, to the fullest extent
permitted by law, as between the Guarantors, on the one hand, and the Lender, on
the other hand, the Obligations may be declared to be forthwith due and payable
as provided in Section 5 (and shall be deemed to have become automatically due
and payable in the circumstances provided in said Section 5) for purposes of
Section 5(a) notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing the Obligations from becoming
automatically due and payable) as against any other Person and that, in the
event of such declaration (or the Obligations being deemed to have become
automatically due and payable), the Obligations (whether or not due and payable
by any other Person) shall forthwith become due and payable by the Guarantors
for purposes of Section 5(a).
(f) RIGHTS OF CONTRIBUTION. The Guarantors hereby agree as among
themselves that, if any Guarantor shall make an Excess Payment (as defined
below), such Guarantor shall have a right of contribution from each other
Guarantor in an amount equal to such other Guarantor's Contribution Share (as
defined below) of such Excess Payment. The payment obligations of any Guarantor
under this Section 5(f) shall be subordinate and subject in right of payment to
the Obligations until such time as the Obligations have been paid in full and
the Commitment has expired or terminated, and none of the Guarantors shall
exercise any right or remedy under this Section 5(f) against any other Guarantor
until such Obligations have been paid in full and the Commitment has expired or
terminated. For purposes of this Section 5(f), (a) "Excess Payment" shall mean
the amount paid by any Guarantor in excess of its Ratable Share of any
Guaranteed Obligations; (b) "Ratable Share" shall mean, for any Guarantor in
respect of any payment of Obligations, the ratio (expressed as a percentage) as
of the date of such payment of Guaranteed Obligations of (i) the amount by which
the aggregate present fair salable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such Guarantor (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of such Guarantor hereunder) to (ii) the amount by which the
aggregate present fair salable value of all assets and other properties of all
of the Borrower and the Guarantors (the "Loan Parties") exceeds the amount of
all of the debts and liabilities (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of the Loan Parties
hereunder) of the Loan Parties; provided, however, that, for purposes of
calculating the Ratable Shares of the Guarantors in respect of any payment of
Obligations, any Guarantor that became a Guarantor subsequent to the date of any
such payment shall be deemed to have been a Guarantor on the date of such
payment and the financial information for such Guarantor as of the date such
Guarantor became a Guarantor shall be utilized for such Guarantor in connection
with such payment; (c) "Contribution Share" shall mean, for any Guarantor in
respect of any Excess Payment made by any other Guarantor, the ratio (expressed
as a percentage) as of the date of such Excess Payment of (i) the amount by
which
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the aggregate present fair salable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such Guarantor (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of such Guarantor hereunder) to (ii) the amount by which the
aggregate present fair salable value of all assets and other properties of the
Loan Parties other than the maker of such Excess Payment exceeds the amount of
all of the debts and liabilities (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of the Loan Parties)
of the Loan Parties other than the maker of such Excess Payment; provided,
however, that, for purposes of calculating the Contribution Shares of the
Guarantors in respect of any Excess Payment, any Guarantor that became a
Guarantor subsequent to the date of any such Excess Payment shall be deemed to
have been a Guarantor on the date of such Excess Payment and the financial
information for such Guarantor as of the date such Guarantor became a Guarantor
shall be utilized for such Guarantor in connection with such Excess Payment; and
(d) "Guaranteed Obligations" shall mean the Obligations guaranteed by the
Guarantors pursuant to this Section 5. This Section 5(f) shall not be deemed to
affect any right of subrogation, indemnity, reimbursement or contribution that
any Guarantor may have under any law against the Borrower in respect of any
payment of Guaranteed Obligations.
(g) GUARANTEE OF PAYMENT; CONTINUING GUARANTEE. The guarantee in
this Section 5 is a guaranty of payment and not of collection, is a continuing
guarantee, and shall apply to all Obligations whenever arising.
5. EVENTS OF DEFAULT; ACCELERATION.
Upon the occurrence of an Event of Default, all amounts evidenced by
this Note may, or shall, in the case of a Bankruptcy Event of the Borrower or
any of its Subsidiaries, become immediately due and payable and the commitments
hereunder, if any, shall be immediately terminated, without presentment, demand,
protest or notice of any kind, all of which are waived by the Borrower. In the
event payment of amounts evidenced by this Note is not made at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to principal and
interest, all costs of collection, including reasonable attorneys' fees.
6. DEFINITIONS.
Terms used but not otherwise defined herein shall have the meanings
provided in the Credit Agreement. As used herein:
"Commitment" means the commitment of the Bank to make advances
of Loans in an aggregate principal amount at any time outstanding of up
to $10,000,000.
"Credit Agreement" means that certain Credit Agreement dated
as of March 19, 1999 (as amended, modified and restated from time to
time) among Central Parking Corporation, Central Parking System, Inc.,
Central Parking System Realty, Inc., Central Parking System of
Massachusetts, Inc., CPC Finance of Tennessee, Inc., Kenney System of
Sudbury St., Inc., and Allright Holdings, Inc., the guarantors
identified therein, the lenders identified therein and NationsBank,
N.A., a national banking association now known as Bank of America,
N.A., as Agent (as in effect on the date hereof regardless whether such
Credit Agreement may have been terminated or amounts owing thereunder
repaid).
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"Events of Default" means any of (i) the failure to make any
payment of principal of any advance hereunder when due, (ii) the
failure to make any payment of interest on any advance hereunder or of
fees hereunder within three days after the date when due, (iii) the
failure to observe any covenants contained herein, (iv) any
representation or warranty made by the Borrower hereunder shall prove
untrue in any material respect, (v) (A) the guaranty given by any
Person in respect of the advances hereunder (each a "Guarantor") or any
provision thereof shall cease to be in full force and effect, (B) any
Guarantor or any Person acting by or on behalf of a Guarantor shall
deny or disaffirm such Guarantor's obligations under such guaranty or
(C) any Guarantor shall fail to perform or observe any term, covenant
or agreement under such guaranty, and (vi) the occurrence of an Event
of Default (as defined in the Credit Agreement) under the Credit
Agreement.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of the Borrower arising under this
Note or otherwise with respect to any Loan, whether direct or indirect
(including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including
interest and fees that accrue after the commencement by or against the
Borrower or any Guarantor of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such proceeding.
7. MISCELLANEOUS.
The holder may endorse and attach a schedule to reflect borrowings
evidenced by this Note and all payments and prepayments thereon; provided that
any failure to endorse such information shall not affect the obligation of the
Borrower to pay amounts evidenced hereby.
In the event of any conflict between any provision of this Note and the
provisions of the Credit Agreement incorporated herein, the terms of this Note
shall control.
Whether or not the transactions contemplated hereby are consummated,
the Borrower and each Guarantor shall indemnify and hold harmless the Bank, its
affiliates, and their respective directors, officers, employees, counsel, agents
and attorneys-in-fact (collectively the "Indemnitees") from and against any and
all liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses and disbursements (including fees,
disbursements and expenses of counsel) of any kind or nature whatsoever which
may at any time be imposed on, incurred by or asserted against any such
Indemnitee in any way relating to or arising out of or in connection with (a)
the execution, delivery, enforcement, performance or administration of this Note
or any other agreement, letter or instrument delivered in connection with the
transactions contemplated thereby or the consummation of the transactions
contemplated thereby, (b) the Commitment or any Loan or the use or proposed use
of the proceeds therefrom, or (c) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, investigation, litigation or
proceeding) and regardless of whether any Indemnitee is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties,
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claims, demands, actions, judgments, suits, costs, expenses or disbursements are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee. No Indemnitee shall have any liability for any indirect or
consequential damages relating to this Note or arising out of its activities in
connection herewith or therewith. The agreements in this paragraph shall survive
the replacement of the Bank, the termination of the Commitment and the
repayment, satisfaction or discharge of all the other Obligations. All amounts
due under this paragraph shall be payable within ten Business Days after demand
therefor.
This Note shall be governed by, and construed and interpreted in
accordance with, the law of the State of New York. All notices given pursuant to
this Note shall be made as provided in Section 11.1 of the Credit Agreement;
provided that the notice address for the Bank is 414 Union Street, Nashville,
Tennessee 37239 or such other offices as the Bank may direct.
IN WITNESS WHEREOF, the Borrower and each of the Guarantors has caused
this Note to be duly executed as of the date first above written.
BORROWER:
CENTRAL PARKING CORPORATION
By: /s/ HIRAM A. COX
- ----------------------------------
Name: Hiram A. Cox
Title: Chief Financial Officer
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GUARANTORS:
CENTRAL PARKING CORPORATION
a Tennessee corporation
CENTRAL PARKING SYSTEM, INC.,
a Tennessee corporation
CENTRAL PARKING SYSTEM REALTY
OF NEW YORK, INC.,
a Tennessee corporation
CENTRAL PARKING SYSTEM OF TEXAS, INC.,
a Texas corporation
CENTRAL PARKING SYSTEM OF FLORIDA, INC.,
a Tennessee corporation
CENTRAL PARKING SYSTEM OF NEW YORK, INC.,
a Tennessee corporation
CENTRAL PARKING SYSTEM OF NEW JERSEY, INC.,
(formerly Square Plus Operating of New Jersey, Inc.),
a New Jersey corporation
CENTRAL PARKING SYSTEM OF TENNESSEE, INC.,
a Tennessee corporation
By: /s/ HIRAM A. COX
-----------------------------------------
Name: Hiram A. Cox
Title: Chief Financial Officer
of each of the foregoing Guarantors
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CENTRAL PARKING SYSTEM OF GEORGIA, INC.,
a Tennessee corporation
DIPLOMAT PARKING CORPORATION,
a District of Columbia corporation
KINNEY PARKING, INC.,
a Delaware corporation
KINNEY SYSTEM, INC.,
a Delaware corporation
KINNEY PARKING SYSTEM, INC.,
a New York corporation
ALLRIGHT CORPORATION,
a Delaware corporation
APARKCO FINANCE, INC.
a Delaware corporation
APARKCO INC.,
a Delaware corporation
CPS FINANCE, INC.,
a Delaware corporation
CENTRAL PARKING SYSTEM OF PENNSYLVANIA, INC.
a Tennessee corporation
By: /s/ HIRAM A. COX
-----------------------------------------
Name: Hiram A. Cox
Title: Chief Financial Officer
of each of the foregoing Guarantors
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