Cash and cash equivalents

EX-10.01 4 p67024exv10w01.txt EX-10.01 Exhibit 10.01 PROMISSORY NOTE $125,000 Phoenix, Arizona May 14, 2002 FOR VALUE RECEIVED, the undersigned, Martin Fraser (the "Payor"), hereby promises to pay to the order of CSK AUTO CORPORATION, a Delaware corporation, or its successor or assign (the "Holder"), at the office of Holder at 645 E. Missouri Avenue, Phoenix, Arizona, Attn.: Chief Executive Officer, on the earlier of (i) December 31, 2003 (the "Maturity Date"), (ii) the last day of the first "window period" to occur after the date hereof in which Payor, as an executive of Holder, has the right to sell common stock of Holder pursuant to the Statement of Policy Concerning the Disclosure of Confidential Information and Insider Trading (and only to the extent that the Board of Directors of Holder does not exercise its right to close the window period prior to its commencement), and (iii) the date to which the maturity of this Note is accelerated as provided below, the principal sum of ONE HUNDRED TWENTY-FIVE THOUSAND DOLLARS ($125,000), together with any accrued and unpaid interest thereon, in lawful money of the United States of America in immediately available funds, and to pay interest from the date hereof on the principal amount hereof from time to time outstanding, in like funds, at said office. From the date hereof interest (i) shall accrue on the outstanding principal amount hereof at a rate which shall be calculated for each quarter or part thereof of the Holder's fiscal year, (ii) shall equal the average rate paid by CSK Auto, Inc. under the revolving portion of its senior credit facility during such period, and (iii) shall be payable in arrears on or prior to the 30th day after the end of each such fiscal quarter. The Payor hereby promises to pay interest, on demand, on any overdue principal and, to the extent permitted by law, on any overdue interest (other than interest added to and constituting a part of the principal hereof in accordance with the terms hereof), and on any overdue amount under any instrument now or hereafter evidencing or securing the indebtedness evidenced hereby, at a rate equal to the rate of interest payable by Holder from time to time under its senior credit facility, calculated on the basis of the actual number of days elapsed over 365, from the date such principal or interest was due to the date of payment. The Payor shall have the right at any time and from time to time on any business day to prepay the principal amount of this Note, together with accrued and unpaid interest thereon, in whole or in part, without penalty or premium, upon at least three business days' prior written notice to the Holder hereof, such notice to specify the prepayment date and the principal amount hereof to be prepaid. In the event the Payor decides not to so prepay this Note in accordance with any such notice delivered to the Holder hereof, the Payor shall so notify the Holder hereof, not less than two business days before such prepayment would otherwise have been made. This Promissory Note is secured by that certain Stock Pledge Agreement, dated as of even date herewith, between the Holder and the Payor (the "Stock Pledge Agreement"). In case of the happening of any of the following events ("Events of Default"): (i) default shall be made in the payment of the principal of or interest on this Note when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise; provided, however, that in the case of a failure to make an interest payment an Event of Default shall not occur until such interest remains unpaid for 10 days following notice from the Holder to the Payor that such interest payment is in default; (ii) a breach of any covenant contained in this Note, other than the covenant to pay the principal of and interest on this Note, which breach shall continue unremedied for thirty days after written notice by the Holder hereof; (iii) the Payor shall (a) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code or any other Federal or state bankruptcy, insolvency, liquidation or similar law, (b) consent to the institution of, or fail to controvert in a timely and appropriate manner, any such proceeding or the filing of any such petition, (c) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator or similar official for him or for a substantial part of his property, (d) file an answer admitting the material allegations of a petition filed against him in any such proceeding, (e) make a general assignment for the benefit of creditors or (f) become unable, admit in writing his inability or fail generally to pay his debts as they become due; (iv) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (a) relief in respect of the Payor, or of a substantial part of the property of the Payor, under Title 11 of the United States Code or any other Federal or state bankruptcy, insolvency, receivership or similar law or (b) the appointment of a receiver, trustee, custodian, sequestrator or similar official for the Payor or for a substantial part of the property of the Payor; and such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall continue unstayed and in effect for 60 days; (v) the Payor shall not deliver to the Secured Party (as defined in the Pledge Agreement) within 15 days of the date hereof all certificates or instruments representing or evidencing the Pledged Shares (as defined in the Pledge Agreement), or not deliver to the Secured Party within 10 days of the acquisition thereof by the Payor all certificates and instruments representing or evidencing securities acquired by the Payor after the date hereof in substitution for or with respect to the Pledged Shares and constituting Pledged Collateral (as defined in the Pledge Agreement), all of which certificates or instruments shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to the Secured Party; 2 (vi) an Event of Default (as defined in the Stock Pledge Agreement) shall have occurred under the Stock Pledge Agreement; or (vii) Payor shall, for any reason, cease to be an employee of Holder or any of its subsidiaries; then, in any such event (other than an event described in paragraph (iii) or (iv) above), the Holder hereof may declare the principal amount of this Note then outstanding to be forthwith due and payable, whereupon the principal hereof, together with accrued and unpaid interest thereon, shall become forthwith due and payable both as to principal and interest, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Payor (to the extent permitted by law), anything contained herein to the contrary notwithstanding; and, in any event described in paragraph (iii) or (iv) above, the principal amount of this Note, together with accrued and unpaid interest thereon, shall automatically become due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Payor. In addition, in the event that any cash dividend or distribution is paid by the Holder with respect to the Pledged Shares, the Payor shall make a mandatory prepayment with respect to this Note equal to the amount of such dividend or distribution, which shall be applied first to accrued but unpaid interest under this Note, then to principal. If any payment under this Note is not made when due, whether at maturity or by acceleration, Payor shall pay all costs of collection whether or not suit is filed hereon, on the Stock Pledge Agreement or otherwise, including, but not limited to, reasonable attorneys' fees and all expenses incurred in connection with the protection or realization of any collateral. Payor hereby certifies and declares that all acts, conditions and things required to be done and performed and to have happened precedent to the creation and issuance of this Note, and to constitute this Note the legal, valid and binding obligation of Payor, enforceable in accordance with the terms hereof, have been done and performed and happened in due and strict compliance with all applicable laws. The Payor hereby waives (to the extent permitted by law) diligence, presentment, demand, protest and notice of any kind whatsoever except as expressly required herein. The nonexercise by the Holder of any of its rights hereunder or under the Stock Pledge Agreement in any particular instance shall not constitute a waiver thereof in that or any subsequent instance. The Holder shall at all times have the right to proceed against any portion of the security held herefor in such order and in such manner as the Holder may select, without waiving any rights with respect to any other security. No delay or omission on the part of the Holder in exercising any right hereunder or under the Stock Pledge Agreement or other agreement shall operate as a waiver of such right or of any other right under this Note. All prepayment of the principal hereof and interest hereon and the respective dates thereof shall be endorsed by the Holder hereof on the schedule attached here to and made a part hereof, or on a continuation thereof which shall be attached hereto and made a part hereof; 3 provided, however, that the failure of the Holder hereof to make such a notation or any error in such a notation shall not affect the obligations of the Payor under this Note. This Note may be assigned, pledged, hypothecated or otherwise transferred by the Holder hereof. Any notice to be given hereunder shall be in writing and shall be deemed to have been given (i) when presented personally or (ii) three business days after being deposited in a regularly maintained receptacle for the United States Postal Service, postage prepaid, registered or certified, return receipt requested addressed to the respective party at the address specified herein or such other address as any party may from time to time designate by written notice to the other as herein required. The Payor irrevocably submits to the jurisdiction of the federal and State courts sitting in Phoenix, Arizona, for the purposes of any suit, action or other proceeding arising out of or relating to this Note. Payor expressly waives any objection which he may have now or hereafter to the laying of the venue or to the jurisdiction of any such suit, action or proceedings. All agreements between Payor and the Holder hereof are expressly limited so that in no contingency or event whatsoever, whether by. reason of advancement of the proceeds of the loan evidenced hereby, acceleration of maturity of the unpaid principal balance hereof, or otherwise, shall the interest contracted for, charged or received by the Holder exceed the maximum amount permissible under applicable law. If, from any circumstance whatsoever, interest would otherwise be payable to the Holder hereof in excess of the maximum lawful amount, then ipso facto, the interest payable to the Holder shall be reduced to the maximum amount permitted under applicable law, and the amount of interest for any subsequent period, to the extent less than that permitted by applicable law, shall to that extent be increased by the amount of such reduction. If from any circumstance the Holder hereof shall ever receive anything of value deemed interest by applicable law in excess of the maximum lawful amount, an amount equal to any excessive interest shall be applied to the reduction of the unpaid principal balance due hereunder and not to the payment of interest, or if such excessive interest exceeds the unpaid principal balance due hereunder, such excess shall be refunded to Payor. All interest paid or agreed to be paid to the Holder hereof shall, to the extent permitted by applicable law, be amortized, prorated, allocated or spread throughout the full period until payment in full of the principal balance due hereunder (including the period of any renewal or extension) so that interest thereon for such period shall not exceed the maximum amount permitted by applicable law. The provisions of this paragraph shall control all agreements between the Payor and the Holder hereof. Any provision of this Note that is declared invalid, illegal or unenforceable in any jurisdiction shall not affect in any way the remaining provisions hereof in such jurisdiction or render that or any other provision of this Note invalid, illegal or unenforceable in any other jurisdiction. This Note shall be governed and construed, and all rights and obligation hereunder shall be determined, in accordance with the laws of the State of Delaware. 4 Executed and delivered by the undersigned this 14th day of May, 2002, in the State of Arizona. Payor -------------------------------- Martin Fraser Address for notices to the Payor: Martin Fraser 7873 W. Kerry Lane Glendale, Arizona 85308 5