EXHIBIT 10.26
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CONSTRUCTION-TO PERMANENT TERM LOAN PROMISSORY NOTE
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$12,560,000 MAY 14, 2001
FOR VALUE RECEIVED, the undersigned, ZTO PROPERTY HOLDINGS, LLC, a Delaware
limited liability company (the "MAKER"), does hereby promise to pay to the order
of FLEET NATIONAL BANK ("LENDER"), at its office at 000 Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, or at such other place as the holder hereof (including
Lender, hereinafter referred to as "HOLDER") may designate the following amounts
in accordance with the terms hereof and of that certain Amended and Restated
Credit Agreement between Maker and Lender dated as of the date hereof (the
"CREDIT AGREEMENT"):
(a) the principal sum of TWELVE MILLION FIVE HUNDRED SIXTY THOUSAND
AND NO/100 DOLLARS ($12,560,000), or, if less, the aggregate principal
amount of all Construction Loan Advances made by Holder to Maker or of the
Converted Construction Loan, as applicable, payable as follows:
(i) during the period from the date hereof through and including
the Construction Loan Conversion Date, there shall be no regularly
scheduled principal repayments;
(ii) in the event that the Construction Loan Advances are not
converted to the Converted Construction Loan on the Construction Loan
Conversion Date for any reason whatsoever, all then outstanding
Construction Loan Advances shall be repaid in full on the Construction
Loan Conversion Date;
(iii) upon conversion of the Construction Loan Advances to the
Converted Construction Loan on the Construction Loan Conversion Date
the principal amount of the Converted Construction Loan shall be due
and payable as follows: (i) in sixty two (62) equal monthly
installments of $69,777.78, such installments to commence on March 14,
2002 and to continue on the first day of each month thereafter through
and including April 14, 2007, and (ii) one (1) final installment of
principal in an amount equal to the then outstanding principal on the
Maturity Date of the Converted Construction Loan; together with
(b) interest on the unpaid principal amount of this Note beginning as
of the date hereof, before or after maturity or judgment, payable at the
rates, at the times and in the manner as provided in the Credit Agreement
until all of said principal and any other sums due hereunder are fully and
finally paid in cash in immediately available funds; and
(c) together with all reasonable costs, expenses and attorneys' and
other professional fees incurred in any action to collect this Note or to
enforce, defend, protect, preserve, foreclose or realize upon any mortgage,
lien, security interest or other collateral securing this Note or to
enforce, foreclose, defend, preserve, protect or sustain any such mortgage,
lien or security interest or guaranty or other agreement or in any
litigation or
controversy arising from or connected with any of the foregoing in
accordance with the Credit Agreement.
Capitalized terms used in this Note and not otherwise defined herein shall have
the meanings assigned in the Credit Agreement.
This Note is the Construction Loan Note referred to in, evidences the
Construction Loan Advances and the Converted Construction Loan under, and has
been issued by Maker in accordance with the terms of, the Credit Agreement.
Payments on this Note may be evidenced by a grid (if any) attached to this Note
or similar certificates or documents, or by the internal computerized records of
Holder, PROVIDED that any failure of Holder to make any such notation shall not
affect the unconditional obligation of Maker to pay all amounts due hereunder as
and when due. Holder shall be entitled to the benefits of the Credit Agreement
and the other Loan Documents and may enforce the agreements of Maker contained
therein, and Holder may exercise the respective remedies provided for thereby or
otherwise available in respect thereof, all in accordance with the terms
thereof. Holder shall have the right (but not the obligation), in its sole
discretion, to charge any amounts due hereunder not otherwise paid on the due
dates thereof to any account maintained by Maker with Holder.
All computations of interest with respect to this Note shall be made on the
basis of a 360 day year and the actual number of days elapsed. Unless sooner
accelerated as a result of the occurrence of an Event of Default or as otherwise
provided in the Credit Agreement, principal, accrued and unpaid interest and any
other sums due hereunder shall be due and payable in full, in Dollars and in
immediately available funds on, as applicable: (i) the Construction Loan
Conversion Date if the Constructions Loan Advances are not converted to the
Converted Construction Loan; and (ii) on the Maturity Date of the Converted
Construction Loan if the Construction Loan Advances have been converted to the
Converted Construction Loan.
Maker has the right under certain circumstances to prepay in whole or in
part the principal of this Note on the terms and conditions specified in the
Credit Agreement.
Maker agrees that: (i) if any installment of interest, principal or any
other sum due under this Note shall not be paid within ten (10) calendar days
after its due date; or (ii) if any other Event of Default shall occur, then,
upon the happening of any such event, the entire indebtedness with accrued
interest thereon due under this Note shall, automatically or at the option of
Holder, as the case may be as provided in the Credit Agreement, accelerate and
become immediately due and payable without notice. Failure to exercise such
option shall not constitute a waiver of the right to exercise the same in the
event of any subsequent Event of Default. Notwithstanding anything to the
contrary contained herein, upon the occurrence of such an Event of Default or
after maturity or judgment, the interest rate on this Note shall automatically
increase without notice or demand to a per annum rate equal to the Default Rate.
In the event Maker fails to pay any installment of interest, principal
and/or any other sum due hereunder or under the Credit Agreement for more than
ten (10) days from the date it is due and payable, without in any way affecting
Holder's right to declare an Event of Default to have occurred, a late charge
equal to five (5%) percent of such late payment shall be assessed against Maker
and shall be immediately due and payable without demand or notice of any kind.
Maker agrees that no delay or failure on the part of Holder in exercising
any power, privilege, remedy, option or right hereunder shall operate as a
waiver thereof or of any other power, privilege, remedy or right; nor shall any
single or partial exercise of any power, privilege, remedy, option or right
hereunder preclude any other or future exercise thereof or the exercise of any
other power, privilege, remedy, option or right. The rights and remedies
expressed herein and in the Credit Agreement are cumulative, and may be enforced
successively, alternatively, or concurrently and are not exclusive of any rights
or remedies which Holder may or would otherwise have under the provisions of all
applicable laws, and under the provisions of all agreements between Maker and
Holder or between any endorser or guarantor and Holder.
All agreements between Maker, each Guarantor and Holder are hereby
expressly limited so that in no contingency or event whatsoever, whether by
reason of acceleration of maturity of any of the Obligations or otherwise, shall
the amount paid or agreed to be paid to Holder for the use or the forbearance of
the Obligations exceed the maximum permissible under applicable law. As used
herein, "APPLICABLE LAW" shall mean the law in effect as of the date hereof
provided, however, that in the event there is a change in the law which results
in a higher permissible rate of interest, then this Note, the Credit Agreement
and the other Loan Documents shall be governed by such new law as of its
effective date. In this regard, it is expressly agreed that it is the intent of
Maker and Holder in the execution, delivery and acceptance of the Loan Documents
to contract in strict compliance with the laws of the State of Connecticut from
time to time in effect. If, under or from any circumstances whatsoever,
fulfillment of any provision hereof or of any of the other Loan Documents at the
time of performance of such provision shall be due, shall involve transcending
the limit of such validity prescribed by applicable law, then the obligation to
be fulfilled shall automatically be reduced to the limits of such validity, and
if under for from circumstances whatsoever Holder should ever receive as
interest an amount which would exceed the highest lawful rate, such amount which
would be excessive interest shall be applied to the reduction of the principal
balance of the Loan evidenced by this Note and not to the payment of interest.
This provision shall control every other provision of all agreements between
Maker, each Guarantor and Holder.
Maker hereby grants Holder a continuing lien, security interest and right
of setoff for all of its Obligations and other liabilities to Holder, whether
now existing or hereafter arising, upon and against all its deposits (general or
special, time or demand, provisional or final), credits, collateral and property
now or hereafter in the possession, custody, safekeeping or control of Holder
or, if Holder is Lender, any entity under common control of FleetBoston
Financial Corporation and its successors and assigns, or in transit to any of
them. Holder may, at any time and from time to time after the occurrence and
during the continuation of an Event of Default, without demand or notice (any
such notice being expressly waived by Maker), apply or set off the same, or any
part thereof, to any Obligation or liability of Maker to Holder, even though
unmatured and regardless of the adequacy of any other collateral securing such
Obligations and liabilities. ANY AND ALL RIGHTS TO REQUIRE HOLDER TO MARSHAL OR
OTHERWISE EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL
WHICH SECURES ANY OR ALL OF SUCH OBLIGATIONS
AND LIABILITIES PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH
DEPOSITS, CREDITS OR OTHER PROPERTY OF MAKER ARE HEREBY KNOWINGLY, VOLUNTARILY
AND IRREVOCABLY WAIVED. The rights of Holder under this paragraph are in
addition to other rights and remedies (including, without limitation, other
rights of setoff) which Holder may have.
Failure by Holder to insist upon the strict performance by Maker of any
terms and provisions herein shall not be deemed to be a waiver of any terms and
provisions herein, and Holder shall retain the right thereafter to insist upon
strict performance by Maker of any and all terms and provisions of this Note or
any document securing the repayment of this Note.
MAKER AND HOLDER (BY ACCEPTANCE OF THIS NOTE) MUTUALLY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR
ANY OTHER LOAN DOCUMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING,
WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR
ACTIONS OF THE HOLDER RELATING TO THE ADMINISTRATION OF ANY OF THE LOANS OR
ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE THAT NEITHER PARTY WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, THE MAKER AND THE HOLDER
EACH HEREBY WAIVE ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION
ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER
THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE MAKER CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF THE LENDER HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER. THE MAKER ACKNOWLEDGES AND STIPULATES THAT THE
WAIVERS GRANTED ABOVE ARE MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY AND
AFTER FULL CONSULTATION WITH COUNSEL AND CONSTITUTE A MATERIAL INDUCEMENT FOR
THE LENDER TO ACCEPT THIS NOTE AND MAKE THE LOAN EVIDENCED HEREBY.
MAKER WAIVES DILIGENCE, DEMAND, PRESENTMENT FOR PAYMENT, NOTICE OF
NONPAYMENT, PROTEST AND NOTICE OF PROTEST, AND NOTICE OF ANY RENEWALS OR
EXTENSIONS OF THIS NOTE. MAKER ACKNOWLEDGES THAT IT MAKES THIS WAIVER KNOWINGLY,
VOLUNTARILY, WITHOUT DURESS AND ONLY AFTER CONSIDERATION OF THE RAMIFICATIONS OF
THIS WAIVER WITH ITS ATTORNEYS. MAKER FURTHER ACKNOWLEDGES THAT LENDER HAS NOT
AGREED WITH OR REPRESENTED TO MAKER THAT THE PROVISIONS OF THIS PARAGRAPH WILL
NOT BE FULLY ENFORCED IN ALL INSTANCES.
This Note shall be governed by the laws of the State of Connecticut (but
not its conflicts of law provisions).
ZTO PROPERTY HOLDINGS, LLC
By /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
