EXHIBIT 10.18
Loan No. 5908795-001
PROMISSORY NOTE
(000 Xxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx)
$5,625,000.00 October 31, 1995
FOR VALUE RECEIVED, Jevic Transportation, Inc., a New Jersey corporation
("BORROWER"), promises to pay to the order of MetLife Capital Financial
Corporation ("METLIFE") at METLIFE's office at 00000 X.X. 4th St., Suite 500,
Xxxxxxxx, Xxxxxxxxxx 00000, attention: Real Estate Department, or at such other
address as the holder hereof may from time to time designate in writing, the
principal sum of Five Million, Six Hundred Twenty-Five Thousand and no
hundredths Dollars ($5,625,000.00) together with interest from the date the
proceeds of the loan (the "Loan") evidenced by this Promissory Note (this
"Note") are initially disbursed until maturity on the principal balance from
time to time remaining unpaid hereon at the rate of eight and thirty-five
hundredths percent (8.35%) per annum (computed on the basis of a 360-day year of
twelve (12) consecutive thirty (30)-day months) in installments as follows: (i)
interest only in advance at the rate of $1,304.69 per day shall be due and
payable on the date the proceeds of the Loan are initially disbursed to or for
the benefit of BORROWER (including, without limitation, disbursement into an
escrow for the benefit of BORROWER) for the period beginning on the date of such
disbursement and ending on the last day of the month during which such
disbursement occurs; and (ii) one hundred nineteen (119) installments of
principal and interest in the amount of $44,726.85 each shall be payable
commencing on the first day of the second month following the month in which the
proceeds of the loan evidenced by this Note are initially disbursed and
continuing on the first day of each and every succeeding month until the first
day of the one hundred twentieth (120) month following the date the proceeds of
the Loan are initially disbursed at which time all then unpaid principal and
interest hereon shall be due and payable.
If any payment shall not be paid when due and shall remain unpaid for ten
(10) days, BORROWER shall pay an additional charge equal to five percent (5.00%)
of the delinquent payment or the highest additional charge permitted by law,
whichever is less.
Upon not less than thirty (30) days' advance written notice to METLIFE at
any time after the fifth (5th) anniversary of the due date of the first monthly
principal and interest payment due under this Note, and upon payment of the
Prepayment Premium, BORROWER shall have the right to prepay all, but not less
than all, of the outstanding balance of this Note on any regularly scheduled
principal and interest payment date. The Prepayment Premium shall be determined
by (i) calculating the decrease (expressed in basis points) in the current
weekly average yield of ten (10)-year U.S. Treasury Notes (as published in
Federal Reserve Statistical Release H.15 [5191) (the "Index") from the Friday
immediately preceding the date of the original proposal letter dated June
28, 1995, from METLIFE to BORROWER, to the Friday immediately preceding the week
in which the prepayment is made, (ii) dividing the decrease by 100, (iii)
multiplying the result by the following described applicable premium factor (the
"Premium Factor"), and (iv) multiplying the product by the principal balance to
be prepaid. If the Index is unchanged or has increased from the Friday
immediately preceding the date of the proposal letter to the Friday immediately
preceding the prepayment date, no Prepayment Premium shall be due. The Premium
Factor shall be the amount shown on the following chart for the month in which
prepayment occurs:
No. Mos. Premium
Remaining (Years) Factor
--------- ------- ------
120 - 109 (10) .074
108 - 97 ( 9) .068
96 - 85 ( 8) .063
84 - 73 ( 7) .057
72 - 61 ( 6) .051
60 - 49 ( 5) .044
48 - 37 ( 4) .037
36 - 25 ( 3) .030
24 - 13 ( 2) .022
12 - 1 ( 1) .014
If the Federal Reserve Board ceases to publish Statistical Release H.15 [519],
then the decrease in the weekly average yield of ten (10)-year U.S. Treasury
Notes will be determined from another source designated by METLIFE. Prepayment
prior to the fifth (5th) anniversary of the due date of the first monthly
principal and interest payment due under this Note will not be permitted.
If METLIFE at any time accelerates this Note after an Event of Default
(defined below), then BORROWER shall be obligated to pay the Prepayment Premium
in accordance with the foregoing schedule. The Prepayment Premium shall not be
payable with respect to condemnation awards or insurance proceeds from fire or
other casualty which METLIFE applies to prepayment, nor with respect to
XXXXXXXX's prepayment of the Note in full during the last three (3) months of
the term of this Note unless an Event of Default has occurred. BORROWER
expressly acknowledges that such Prepayment Premium is not a penalty but is
intended solely to compensate METLIFE for the loss of its bargain and the
reimbursement of internal expenses and administrative fees and expenses incurred
by METLIFE.
BORROWER shall be liable on this Note and on all the representations,
warranties, indemnities and covenants in the Mortgage, Security Agreement,
Assignment of Leases and Rents and Fixture Filing ("Mortgage") covering the
property (the "Property") securing this Note and all other documents executed or
delivered in connection herewith (the "Loan Documents").
2.
Each of the following shall constitute an Event of Default ("Event of
Default") hereunder and under the Mortgage:
(a) Failure of or refusal by XXXXXXXX to make any payment of principal,
interest, or Prepayment Premium upon this Note when due, and such failure or
refusal shall continue for a period of ten (10) days after written notice is
given to BORROWER by METLIFE specifying such failure; or
(b) Failure of BORROWER within the time required by the Mortgage to make
any payment for taxes, insurance or for reserves for such payments, or any other
payment necessary to prevent filing of or discharge of any lien, and such
failure shall continue for a period of ten (10) days after written notice is
given to BORROWER by METLIFE specifying such failure; or
(c) Failure by XXXXXXXX to observe or perform any obligations of BORROWER
to METLIFE on or with respect to any transactions, debts, undertakings or
agreements other than the transaction evidenced by this Note following the
giving of any notice required thereunder and/or the expiration of any applicable
period of grace provided thereby; or
(d) Failure of BORROWER to make any payment or perform any obligation under
any superior liens or encumbrances on the Property, within the time required
thereunder following the giving of any notice required thereunder and/or the
expiration of any applicable period of grace provided thereby, or commencement
of any suit or other action to foreclose any superior liens or encumbrances; or
(e) Failure by XXXXXXXX to observe or perform any of its obligations under
lease agreements, if any, covering the Property following the giving of any
notice required thereunder and/or the expiration of any applicable period of
grace required thereby; or
(f) The Property is transferred or any agreement to transfer any part or
interest in the Property in any manner whatsoever is made or entered into
without the prior written consent of METLIFE, except as specifically allowed
under the Mortgage, including without limitation creating or allowing any liens
on the Property or leasing any portion of the Property; or
(g) Filing by XXXXXXXX of a voluntary petition in bankruptcy or filing by
BORROWER of any petition or answer seeking or acquiescing in any reorganization,
arrangement, composition, readjustment, liquidation, or similar relief for
itself under any present or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief for debtors, or
the seeking, consenting to, or acquiescing by BORROWER in the appointment of any
trustee, receiver, custodian, conservator or liquidator for BORROWER, any part
of the Property, or any of the income or rents of the Property, or the making by
BORROWER of any general assignment for the benefit of creditors, or the
inability of or failure by BORROWER to pay its debts generally as they become
due, or the insolvency on a balance sheet basis or business failure of BORROWER,
or the making or suffering of a preference within the meaning of federal
3.
bankruptcy law or the making of a fraudulent transfer under applicable federal
or state law, or concealment by BORROWER of any of its property in fraud of
creditors, or the imposition of a lien upon any of the Property of BORROWER
which is not discharged in the manner permitted by the Mortgage, or the giving
of notice by BORROWER to any governmental body of insolvency or suspension of
operations; or
(h) Filing of a petition against BORROWER seeking any reorganization,
arrangement, composition, readjustment, liquidation, or similar relief under any
present or future federal, state or other law or regulation relating to
bankruptcy, insolvency or other relief for debts, or the appointment of any
trustee, receiver, custodian, conservator or liquidator of BORROWER, of any part
of the Property or of any of the income or rents of the Property, unless such
petition shall be dismissed within sixty (60) days after such filing, but in any
event prior to the entry of an order, judgment or decree approving such
petition; or
(i) The institution of any proceeding for the dissolution or termination of
BORROWER voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or net
worth of BORROWER or any of the guarantors (if any) of the indebtedness
evidenced by this Note from the assets, liabilities or net worth of BORROWER or
any of the guarantors (if any) of the indebtedness evidenced by this Note
previously disclosed to METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by or on
behalf of BORROWER under this Note, the Mortgage, or any of the Loan Documents
shall prove to have been false or misleading in any material respect; or
(1) Failure of BORROWER to observe or perform any other covenant or
condition contained in the Mortgage and such default shall continue for thirty
(30) days (or such other cure period as may be expressed therein) after notice
is given to BORROWER specifying the nature of the failure, or if the default
cannot be cured within such applicable cure period, BORROWER fails within such
time to commence and pursue curative action with reasonable diligence or fails
at any time after expiration of such applicable cure period to continue with
reasonable diligence all necessary curative actions. No notice of default and no
opportunity to cure shall be required as to defaults under Section 22 of the
Mortgage; or
(m) Failure of BORROWER to observe or perform any other obligation under
any other Loan Document when such observance or performance is due, and such
failure shall continue beyond the applicable cure period set forth in such Loan
Document, or if the default cannot be cured within such applicable cure period,
BORROWER fails within such time to commence and pursue curative action with
reasonable diligence or fails at any time after expiration of such applicable
cure period to continue with reasonable diligence all necessary curative
actions; or
(n) XXXXXXXX's abandonment of the Property; or
4.
(o) Any of the foregoing events occur with respect to any tenant, if any,
of the Property, with respect to any guarantor, if any, of any of BORROWER's
obligations in connection with the indebtedness evidenced by this Note or with
respect to any guarantor (if any) of any tenant's obligations relating to the
Property, or such guarantor (if any) dies or becomes incompetent.
Upon the occurrence of any of the foregoing events of default, METLIFE
shall have the option to declare the entire amount of principal and interest due
under this Note immediately due and payable without notice or demand, and
METLIFE may exercise any of its rights under this Note and any document executed
or delivered herewith. After acceleration or maturity, BORROWER shall pay
interest on the outstanding principal balance of this Note at the rate of five
percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in
effect from time to time, or fifteen percent (15.00%) per annum, whichever is
higher, provided that such interest rate shall not exceed the maximum interest
rate permitted by law.
All payments of the principal and interest on this Note shall be made in
coin or currency of the United States of America which at the time shall be the
legal tender for the payment of public and private debts.
If this Note is placed in the hands of an attorney for collection, XXXXXXXX
agrees to pay reasonable attorneys' fees and costs incurred by METLIFE in
connection therewith, and in the event suit or action is instituted to enforce
or interpret this Note (including without limitation efforts to modify or vacate
any automatic stay or injunction), the prevailing party shall be entitled to
recover all expenses reasonably incurred at, before or after trial and on
appeal, whether or not taxable as costs, or in any bankruptcy proceeding, or in
connection with post-judgment collection efforts, including, without limitation,
attorneys' fees, witness fees (expert and otherwise), deposition costs, copying
charges and other expenses.
This Note shall be governed and construed in accordance with the laws of
the State of New Jersey applicable to contracts made and to be performed therein
(excluding choice-of-law principles). BORROWER hereby irrevocably submits to the
jurisdiction of any state or federal court sitting in New Jersey in any action
or proceeding brought to enforce or otherwise arising out of or relating to this
Note, and hereby waives any objection to venue in any such court and any claim
that such forum is an inconvenient forum.
This Note is given in a commercial transaction for business purposes.
This Note may be declared due prior to its expressed maturity date, all in
the events, on the terms, and in the manner provided for in the Mortgage.
BORROWER and all sureties, endorsers, guarantors and other parties now or
hereafter liable for the payment of this Note, in whole or
5.
in part, hereby severally (i) waive demand, notice of demand, presentment for
payment, notice of nonpayment, notice of default, protest, notice of protest,
notice of intent to accelerate, notice of acceleration and all other notices,
and further waive diligence in collecting this Note or in enforcing any of the
security for this Note; (ii) agree to any substitution, subordination, exchange
or release of any security for this Note or the release of any party primarily
or secondarily liable for the payment of this Note; (iii) agree that METLIFE
shall not be required to first institute suit or exhaust its remedies hereon
against BORROWER or others liable or to become liable for the payment of this
Note or to enforce its rights against any security for the payment of this Note;
and (iv) consent to any extension of time for the payment of this Note, or any
installment hereof, made by agreement by METLIFE with any person now or
hereafter liable for the payment of this Note, even if BORROWER is not a party
to such agreement.
All agreements between BORROWER and METLIFE, whether now existing or
hereafter arising and whether written or oral, are hereby limited so that in no
contingency, whether by reason of demand or acceleration of the final maturity
of this Note or otherwise, shall the interest contracted for, charged, received,
paid or agreed to be paid to METLIFE exceed the maximum amount permissible under
the applicable law. If, from any circumstance whatsoever, interest would
otherwise be payable to METLIFE in excess of the maximum amount permissible
under applicable law, the interest payable to METLIFE shall be reduced to the
maximum amount permissible under applicable law; and if from any circumstance
METLIFE shall ever receive anything of value deemed interest by applicable law
in excess of the maximum amount permissible under applicable law, an amount
equal to the excessive interest shall be applied to the outstanding principal
balance hereof, or if such excessive amount of interest exceeds the unpaid
balance of principal hereof, such excess shall be refunded to BORROWER. All
interest paid or agreed to be paid to METLIFE shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full period (including any renewal or extension) until payment in full of the
principal so that the interest hereon for such full period shall not exceed the
maximum amount permissible under applicable law. METLIFE expressly disavows any
intent to contract for, charge or receive interest in an amount which exceeds
the maximum amount permissible under applicable law. This paragraph shall
control all agreements between BORROWER and METLIFE.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT
SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING
ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED
IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY
CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN
AGREEMENT.
6.
IN WITNESS WHEREOF, XXXXXXXX has executed or caused this Note to be
executed by its duly authorized officers under seal as of the year and day first
written above.
JEVIC TRANSPORTATION, INC.,
a New Jersey corporation
By: /s/ Xxxxx X. Xxxxxxxxxxx
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Title: SVP & CFO
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Attest: Xxxxxxx X. Xxxxxxxx
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Title: TREASURER
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[CORPORATE SEAL]
7.
