Exhibit 10.1
RATE CAP TRANSACTION AGREEMENT
This Agreement is made as of August 1, 2006 (the "Trade Date"), by and
among LASALLE BANK NATIONAL ASSOCIATION (the "Floating Rate Payer") and STANDARD
PARKING CORPORATION (the "Fixed Rate Payer").
WHEREAS, the Fixed Rate Payer desires to enter into an arrangement for the
purpose of limiting its interest expense on certain existing floating rate
liabilities; and
WHEREAS, the Floating Rate Payer desires to enter into such an arrangement
with the Fixed Rate Payer;
NOW, THEREFORE, the parties hereto agree as follows:
1. Payment of Fixed Amount. The Fixed Rate Payer agrees to pay to the
Floating Rate Payer a Fixed Amount USD 300,000.00 on or before August 3, 2006
(the "Fixed Rate Payer Payment Date"), in consideration of the Floating Rate
Payer agreeing to make a payment to the Fixed Rate Payer for each Calculation
Period (as defined below) during which the Floating Rate (as defined below)
exceeds the Cap Rate (as defined below).
2. Payment of Floating Amounts. The Floating Rate Payer agrees to
make a payment of the Floating Amount (as defined below) on each Floating Rate
Payer Payment Date (as defined below) in immediately available funds at such
location as the Fixed Rate Payer shall direct. For each Floating Rate Payer
Payment Date, the Floating Rate Payer shall deliver to the Fixed Rate Payer a
notice containing a computation of the Floating Amount payable.
3. Definitions. The definitions and provisions contained in the 2000
ISDA Definitions (as published by the International Swap Dealers Association,
Inc.) are incorporated by reference into this Agreement. In the event of any
inconsistency between those definitions and provisions and the provisions of
this Agreement, the provisions of this Agreement shall govern.
(a) "Business Day" shall mean a day on which banks are open
in New York for the transaction of general commercial banking business and
on which dealings may be carried on in the London interbank eurodollar
market.
(b) "Calculation Agent" shall mean the Floating Rate Payer.
(c) "Calculation Period" shall mean each period from, and
including, one Floating Rate Payer Payment Date to, but excluding, the next
following Floating Rate Payer Payment Date, except that (i) the initial
Calculation Period will commence on, and include, the Effective Date, and
(ii) the final Calculation Period will end on, but exclude, the Termination
Date.
(d) "Cap Rate" shall mean 5.75%.
(e) "Designated Maturity" shall mean 3 Months.
(f) "USD" and the sign "$" mean lawful currency of the
United States of America.
(g) "Effective Date" shall mean August 4, 2006.
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(h) "Floating Amount" with respect to any Calculation
Period shall mean an amount equal to (i) the amount by which the interest
earned on the Notional Amount for the Calculation Period at the Floating
Rate would exceed (ii) the amount of interest which would have been earned
on the Notional Amount for the Calculation Period at the Cap Rate, all said
calculations being based on a Floating Rate Day Count Fraction of
Actual/360. (If the amount calculated in clause (i) shall be less than the
amount calculated under clause (ii), the Floating Amount for said
Calculation Period shall be zero).
(i) "Floating Rate" means (i) with respect to the initial
Calculation Period, the rate determined for the Floating Rate Option two
(2) London Banking Days prior to the Effective Date for value on the
Effective Date; and (ii) with respect to any subsequent Calculation Period,
the rate determined with respect to such period for the Floating Rate
Option.
(j) "Floating Rate Option" shall mean USD-LIBOR-BBA
(k) "Floating Rate Payer Payment Date" shall mean the 4th
day of each November, February May and August, commencing on November 4,
2006 and ending on the Termination Date, subject to adjustment in
accordance with the Modified Following Business Day Convention.
(l) "Notional Amount" shall mean USD 50,000,000.00.
(m) "Reset Date" shall mean each Floating Rate Payer Payment
Date to, but not including, the Termination Date.
(n) "Termination Date" shall mean August 4, 2009.
4. Representations and Warranties - The Fixed Rate Payer. The Fixed
Rate Payer hereby represents and warrants to the Floating Rate Payer that:
(a) The Fixed Rate Payer is a corporation validly existing
and in good standing under the laws of the jurisdiction of its organization
and such jurisdiction is a State of the United States of America.
(b) The Fixed Rate Payer has the corporation power and
authority to own its property and assets and to carry on its business as
currently conducted.
(c) The Fixed Rate Payer has the corporation power to
execute, deliver and perform this Agreement.
(d) The execution, delivery and performance of this
Agreement (i) have been duly authorized by all requisite corporate or
organizational action on the part of the Fixed Rate Payer and (ii) will not
(A) violate (1) any provision of law, (2) the constitutional documents of
the Fixed Rate Payer, (3) any applicable order of any court or agency of
government or (4) any indenture, agreement or other instrument to which the
Fixed Rate Payer is a party or by which the Fixed Rate Payer or any of its
property or assets is bound, (B) be in conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a default under
any indenture, agreement or other instrument to which the Fixed Rate Payer
is a party or by which the Fixed Rate Payer or any of its property or
assets is bound or (C) result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any property or assets
of the Fixed Rate Payer.
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(e) This Agreement has been duly executed and delivered by
the Fixed Rate Payer and constitutes a legal, valid and binding obligation
of the Fixed Rate Payer, enforceable in accordance with its terms (subject,
as to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency or similar laws from time to time in effect).
(f) No action, consent or approval of, or registration or
filing with, or any other action by any governmental agency, bureau,
commission or court has been required in connection with the execution,
delivery and performance by the Fixed Rate Payer of this Agreement, or if
so required, such registration or filing has been made, such consent or
approval has been given or such other appropriate action has been taken.
5. Representations and Warranties - The Floating Rate Payer. The
Floating Rate Payer hereby represents and warrants to the Fixed Rate Payer that:
(a) The Floating Rate Payer is a bank organized or formed
under the laws of the United States of America.
(b) The Floating Rate Payer has the corporate or
organizational power and authority to own its property and assets and to
carry on its business as currently conducted.
(c) The Floating Rate Payer has the corporate or
organizational power to execute, deliver and perform this Agreement.
(d) The execution, delivery and performance of this
Agreement (i) have been duly authorized by all requisite corporate or
organizational action on the part of the Floating Rate Payer and (ii) will
not (A) violate (1) any provision of law, (2) the constitutional documents
of the Floating Rate Payer, (3) any applicable order of any court or agency
of government or (4) any indenture, agreement or other instrument to which
the Floating Rate Payer is a party or by which the Floating Rate Payer or
any of its property or assets is bound, (B) be in conflict with, result in
a breach of or constitute (with due notice or lapse of time or both) a
default under any indenture, agreement or other instrument to which the
Floating Rate Payer is a party or by which the Floating Rate Payer or any
of its property or assets is bound or (C) result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon
any property or assets of the Floating Rate Payer.
(e) This Agreement has been duly executed and delivered by
the Floating Rate Payer and constitutes a legal, valid and binding
obligation of the Floating Rate Payer, enforceable in accordance with its
terms (subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency or similar laws from time to time in effect).
(f) No action, consent or approval of, or registration or
filing with, or any other action by any governmental agency, bureau,
commission or court has been required in connection with the execution,
delivery and performance by the Floating Rate Payer of this Agreement, or
if so required, such registration or filing has been made, such consent or
approval has been given or such other appropriate action has been taken.
6. Assignment and Transfer. Neither party may assign or transfer its
rights or obligations under this Agreement without the prior written consent of
the other party and any purported assignment in violation of this Section shall
be void; provided, however, that the consent to transfer shall not be
unreasonably withheld.
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7. Other Provisions Relating to the Fixed Amount. In no event shall
the Fixed Amount (or any portion thereof) paid to the Floating Rate Payer
pursuant to Section 1 hereof be refundable, provided that nothing contained
herein shall be deemed to constitute a waiver by the Fixed Rate Payer of any of
its rights to collect damages from, or to enforce other remedies against, the
Floating Rate Payer in the event that the Floating Rate Payer fails to perform
its obligations hereunder.
8. Amendments and Waivers. No amendment, modification or waiver
with respect to this Agreement will be effective unless in writing and executed
by each of the parties hereto.
9. Notices. All notices, requests and other communications to either
party hereunder shall be in writing and shall be given to such party at its
address, telex or telecopier number set forth on the signature page hereof or
such other address, telex or telecopier number as such party may hereafter
specify for the purpose of notice to the other party.
10. Termination. This Agreement shall terminate on the Termination
Date, subject to any applicable requirement for payment as set forth in Section
2 hereof.
11. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
12. Authorization Documents. Upon the execution of this Agreement,
the Fixed Rate Payer shall promptly deliver to the Floating Rate Payer,
certified evidence of the authority, incumbency and specimen signature of each
authorized person executing this Agreement on its behalf.
13. Account Details:
Payments to the Floating Rate Payer: LaSalle Bank National
Association will debit your
DDA account #5800155565
Payments to the Fixed Rate Payer: LaSalle Bank National
Association will credit your
DDA account #5800155565
14. Set-off. Upon the occurrence of any default by the Fixed Rate
Payer with respect to any indebtedness or other amounts payable by the Fixed
Rate Payer to the Floating Rate Payer (irrespective of the currency, place of
payment or booking office of the obligation) under any other agreements between
the Fixed Rate Payer and the Floating Rate Payer or instrument(s) or
undertaking(s) issued or executed by one party to, or in favor of, the other
party, the Floating Rate Payer may at its option (but shall not be obligated to)
reduce such amounts by its setoff of such amounts against any amount(s) payable
(whether at such time or in the future or upon the occurrence of a contingency)
by the Floating Rate Payer to the Fixed Rate Payer hereunder. For purposes
hereof, if a payment obligation is unascertained, the Floating Rate Payer may in
good faith estimate that obligation and setoff in respect of the estimate,
subject to an accounting when the obligation is ascertained.
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15. Relationship Between the Parties. Each party represents to the
other party that:
(a) Non-Reliance. It is acting for its own account, and it
has made its own independent decisions to enter into this Transaction and
as to whether this Transaction is appropriate or proper for it based upon
its own judgment and upon advice from such advisors as it has deemed
necessary. It is not relying on any communication (written or oral) of the
other party as investment advice or as a recommendation to enter into this
Transaction; it being understood that information and explanation related
to the terms and conditions of this Transaction shall not be considered
investment advice or a recommendation to enter into this Transaction. No
communication (written or oral) received from the other party shall be
deemed to be an assurance or guarantee as to the expected results of this
Transaction.
(b) Assessment and Understanding. It is capable of assessing
the merits of and understanding (on its own behalf or through independent
professional advice), and understands and accepts the terms, conditions and
risks of this Transaction. It is also capable of assuming, and assumes, the
risks of this Transaction.
(c) Status of Parties. The other party is not acting as a
fiduciary or an advisor to it in respect of this Transaction.
16. Waiver of Jury Trial. Each party irrevocably waives any and all
right to trial by jury in any legal proceeding instituted in connection with
this Agreement or this Transaction to the fullest extent permitted by law. As to
any matter for which a jury trial cannot be waived, each party agrees not to
assert any such matter as a cross claim or counterclaim in, nor move to
consolidate the same with, any legal proceeding in which a jury trial is
waived."
17. IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT
To help the government fight the funding of terrorism and money laundering
activities, Federal law requires all financial institutions to obtain, verify,
and record information that identifies each entity or person that opens an
account.
When you open an account, we will ask for the business' full legal name,
street address, and tax identification number and other information that will
assist us in identifying the business. We may also ask for other identifying
information such as your date of birth and a copy of your driver's license.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Lily Levin By: /s/ Janet Lewis
--------------------------- ---------------------------
Name: Lily Levin Name: Janet Lewis
Title: Vice President Title: Vice President
Address: 540 West Madison Avenue
Suite 2132
Chicago, IL 60661
Attention: Treasury Documentation
Facsimile: 312-992-5847
Phone: 312-992-5842
STANDARD PARKING CORPORATION
By: /s/ G. Marc Baumann
---------------------------
Name: G. Marc Baumann
Title: Chief Financial Officer
Address: 900 N. Michigan
Suite 1600
Chicago, IL 60611
Attention: Marc Baumann
Facsimile: 312-640-8228
Telephone: 312-274-2199
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