PROMISSORY NOTE
SALT LAKE CITY, UTAH
$20,000,000.00 SEPTEMBER 22, 2000
For value received, MOTOR CARGO INDUSTRIES, INC. AND MOTOR CARGO (referred
to as "Borrower") jointly and severally, promises to pay to the order of ZIONS
FIRST NATIONAL BANK, a national banking association (hereinafter referred to as
"Zions" or "Lender") at its office in Salt Lake City, Utah, the sum of Twenty
Million and 00/100 Dollars ($20,000,000.00) or such other principal balance as
may be outstanding hereunder in lawful money of the United States with interest
thereon at an interest rate hereinafter described. The principal amount
available shall be reduced by 1/20 of the original balance at each quarter-end.
PAYMENTS. Commencing October l5,2000, and continuing on the same day of
each month thereafter, accrued interest shall be due and payable. In any event,
the unpaid balance of principal and any accrued but unpaid interest shall be due
and payable no later than April 15, 2002. When the interest rate hereon is
adjusted, the monthly payment shall be adjusted by Zions to provide for an
amortization schedule which will pay this Promissory Note in full by April 15,
2002.
INTEREST RATE. Prime Rate means an index which is determined daily by the
published commercial loan variable rate index held by any two of the following
banks: Chase Manhattan Bank, Wells Fargo Bank N.A., and Bank of America N.T. &
S.A. In the event no two of the above banks have the same published rate, the
bank having the median rate will establish the Prime Rate. If, for any reason
beyond the control of Zions, any of the aforementioned banks becomes
unacceptable as a reference for the purpose of determining the Prime Rate used
herein, Zions may, five days after posting notice, substitute another comparable
bank for the one determined unacceptable. As used in this paragraph, "comparable
bank" shall mean one of the ten largest commercial banks headquartered in the
United States of America. This definition of Prime Rate is to be strictly
interpreted and is not intended to serve any purpose other than providing an
index to determine the variable interest rate used herein. It is not the lowest
rate at which Zions may make loans to any of its customers, either now or in the
future.
Unless Borrower elects a fixed rate of interest, as provided below, this
Promissory Note will bear interest at a variable rate equal to the Prime Rate
less 0.25% per annum. The variable interest rate will change immediately and
automatically with each change in the Prime Rate.
At such times and in such amounts as Borrower may elect, all or a portion
of the outstanding balance may be converted to a fixed rate of interest equal to
the thirty (30), sixty (60), ninety (90), one hundred eighty (180) or three
hundred sixty five (365) day London Interbank Offered Rate (LIBOR) for a period
corresponding to the LIBOR term chosen plus 2.35%per annum. Borrower may not
choose a period which extends past the maturity date of this Promissory Note.
Upon expiration of the applicable fixed rate period, Borrower may elect to have
such portion of the Promissory Note accrue interest at an elected LIBOR Rate or
the variable rate. If no election is made, such portion of the Promissory Note
will bear interest at the variable rate equal to the Prime Rate less 0.25% per
annum. Borrower shall not prepay any amounts which accrue interest at a fixed
rate, nor may a fixed rate be converted to a variable rate until the expiration
of the fixed rate option. ln the event that a LIBOR Rate is not available on
such dates, the interest rate shall be the applicable variable rate. Zions will
maintain records, which may be computerized, which will specify the interest
rates payable hereon. Borrower will promptly notify Zions of any possible error
contained in any records which are provided to Borrower.
PREPAYMENT. The Borrower shall pay to the Bank a fee with respect to the
prepayment of any or all of the remaining principal balance of the term loan in
an amount equal to the prepaid principal amount times the difference between: a)
the "Current LIBOR" and; b) the Original LIBOR: times the number of years and
fractional years remaining until the earlier of maturity or the next repricing,
except that: (I) No prepayment fee shall be required if the "Current LIBOR" is
greater than the "Original LIBOR"; and, (II) up to five percent (5%), non-
cumulative, of the original Principal Indebtedness may be prepaid in any year
without payment of any prepayment fee.
LIBOR is defined as the dollar London Interbank Offered Rate as quoted by
the British Bankers Association on the Telerate System, or the offered side
as quoted by Lasser, Marshall, Inc., or another New York based broker.
"Current LIBOR" is defined to be the LIBOR in effect on the date of the
prepayment for a term equal to the time to the earlier of maturity or the
next repricing date.
"Original LIBOR" is defined to be the LIBOR in effect on the more recent of
the date the loan was made or most recent repricing for a term equal to the
time to the earlier of maturity or the next repricing date.
As used herein, Lender's thirty (30), sixty (60), ninety (90), one hundred
eighty (180) or three hundred sixty five (365) day LIBOR Rate shall mean the
rates per annum quoted by Lender as Lender's thirty (30), sixty (60), ninety
(90), one hundred eighty (180) or three hundred sixty five (365) day LIBOR Rate
based upon quotes for the London Interbank Offered Rate from the British Bankers
Association Interest Settlement Rates, Lasser Marshall Inc., or other comparable
services. This definition of Lender's thirty (30), sixty (60), ninety (90), one
hundred eighty (180) or three hundred sixty five (365) day LIBOR Rate is to be
strictly interpreted and is not intended to serve any purpose other than
providing an index to determine the interest rate used herein. Lender's thirty
(30), sixty (60), ninety (90), one hundred eighty (180) or three hundred sixty
five (365) LIBOR Rate may not necessarily be the same as the quoted offer side
in the eurodollar time deposit market by any particular institution or service
applicable to any interest period.
Not withstanding any other provision in this Promissory Note, if the
adoption of any applicable law, rule, or regulation, or any change therein, or
any change in the interpretation or administration thereof by any governmental
authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by Lender with any request or directive
(whether or not having the force of law) of any such authority, central bank, or
comparable agency shall make it unlawful or impossible for Lender to maintain or
fund advances based on Lender's thirty (30), sixty (60), ninety (90), one
hundred eighty (180) or three hundred sixty five (365) day LIBOR Rate, then upon
notice to Borrower by Lender, interest accruing on the outstanding principal
balance under this Promissory Note, together with interest already accrued
thereon, shall, at the election of Lender, be immediately converted to the
applicable variable rate.
Notwithstanding anything to the contrary herein, if Lender determines
(which determination shall be conclusive) that quotations of interest rates
referred to in the definition of Lender's thirty (30), sixty (60), ninety (90),
one hundred eighty (180) or three hundred sixty five (365) day LIBOR Rate are
not being provided in the relevant amounts or for the relevant maturities for
purposes of Lender's determining Lender's thirty (30), sixty (60), ninety (90),
one hundred eighty (180) or three hundred sixty five (365) day, or if Lender
determines (which determination shall be conclusive) that Lender's thirty (30),
sixty (60), ninety (90), one hundred eighty (180) or three hundred sixty five
(365) day LIBOR Rate does not accurately cover the cost to Lender of making or
maintaining advances based on Lender's thirty (30), sixty (60), ninety (90), one
hundred eighty (180) or three hundred sixty five (365) day LIBOR Rate, then
Lender shall give notice thereof to Borrower, whereupon, until Lender notifies
Borrower that the circumstances giving rise to such suspension no longer exist,
the interest rate hereunder shall be converted to the applicable variable rate.
Any advance under this Promissory Note which accrues interest at the
variable rate may be
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prepaid in whole or in part without penalty provided that any partial prepayment
will not defer any monthly installments.
Interest on this Promissory Note is computed on a 365/365 simple interest
basis; that is, interest is computed by applying the ratio of the annual
interest rate over a year of 365 days, multiplied by the outstanding principal
balance, multiplied by the actual number of days the principal balance is
outstanding. Borrower will pay Lender at lender's address located at #1 South
Main, Salt Lake City, Utah 84111, or at such other place as Lender maintains
Banking Centers.
APPLICATION OF PAYMENTS. Any and all payments by Borrower under this
Promissory Note shall be applied as follows: first, to the repayment of any
Lender Expenditures advanced by Lender hereunder or pursuant to the loan
documents relating to the Promissory Note; second, to the payment of any late
charges; third, to the payment of accrued interest on the principal
indebtedness; and fourth, to the payment of the principal indebtedness
hereunder.
LENDER'S EXPENDITURES. Borrower agrees to pay on demand any expenditures
made by Lender in accordance with the loan documents relating to this Promissory
Note, including, but not limited to, the payment of taxes, insurance premiums,
costs of maintenance and preservation of the collateral, common expense and
other assessments relating to the collateral, and attorney fees and costs
incurred in connection with any matter pertaining hereto or to the security
pledged to secure the principal indebtedness under this Promissory Note or any
portion thereof (collectively the "Lender Expenditures"). At the election of
Lender, all Lender Expenditures may be added to the unpaid balance of this
Promissory Note and become a part of and on a parity with the indebtedness
secured by the collateral and shall accrue interest at such rate as may be
computed from time to time in the manner prescribed in this Promissory Note.
Zions shall maintain appropriate records of advances, repayments and the
interest rates applicable to the advances. Such records may consist of computer
records and shall be deemed correct.
DEFAULT. Borrower will be in default if any of the following happens:
(a) Borrower fails to make payment when due; (b) Borrower breaks any promise
Borrower has made to Lender, or Borrower fails to comply with or to perform
when due any other term, obligation, covenant, or condition contained in this
Promissory Note or any agreement related to this Promissory Note, or in any
other agreement or loan Borrower has with Lender; (c) Borrower defaults under
any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement in favor of any other creditor or person
that may materially affect any of Borrower's property of Borrower's ability
to repay this Promissory Note or perform Borrower's obligations under this
Promissory Note or any document or agreement related to this Promissory Note
and the transaction evidenced thereby; (d) Any representation or statement
made or furnished to Lender by Borrower or on Borrower's behalf is false or
misleading in any material respect either now or at the time made or
furnished; (e) Borrower dissolves (regardless of whether election to continue
is made), any member withdraws from Borrower, any member dies, or any of the
members or Borrower becomes insolvent, a receiver is appointed for any part
of Borrower's property, Borrower makes an assignment for the benefit of
creditors, or any proceeding is commenced either by Borrower or against
Borrower under any bankruptcy or insolvency laws; (f) Any creditor tries to
take any of Borrower's property on or in which Lender has a lien or security
interest (this includes a garnishment of any of Borrower's accounts with
Lender); (g) Any guarantor dies or any of the other events described in this
default section occurs with respect to any guarantor of this Note; (h) A
material adverse change occurs in Borrower's financial condition, or Lender
believes the prospect of payment or performance of the Indebtedness is
impaired; (i) Lender in good faith deems itself insecure.
If any default, other than a default in payment, is curable and if Borrower
has not been given a notice of a breach of the same provision of this Note
within the preceding twelve (12) months, it may be cured (and no event of
default will have occurred) if Borrower, after receiving written notice from
Lender demanding cure of such default: (a) cures the default within fifteen (15)
days; or (b) if the cure requires more than fifteen (15) days, immediately
initiates steps which Lender deems in Lender's sole discretion to be sufficient
to cure the default and
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thereafter continues and completes all reasonable and necessary steps sufficient
to produce compliance as soon as reasonably practical.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid
principal balance on this Promissory Note and all accrued unpaid interest
immediately due, without notice, and then Borrower will pay that amount. Upon
default, including failure to pay upon final maturity, Lender, at it option, may
also, if permitted under applicable law, increase the variable interest rate on
this Promissory Note 3.000 percentage points. The interest rate will not exceed
the maximum rate permitted by applicable law. Lender may hire or pay someone
else to help collect this Promissory Note if Borrower does not pay. Borrower
also will pay Lender that amount. This includes, subject to any limits under
applicable law, Lender's reasonable attorney's fees and Lender's legal expenses
whether or not there is a lawsuit, including reasonable attorneys' fees and
legal expenses for bankruptcy proceedings (including efforts to modify or vacate
any automatic stay or injunction), appeals, and any anticipated post-judgment
collection services. If not prohibited by applicable law, Borrower also will pay
any court costs, in addition to all other sums provided by law.
RIGHT OF SETOFF. Borrower grants to Lender a contractual possessory
security interest in, and hereby assigns, conveys, delivers, pledges, and
transfers to Lender all Borrower's right, title and interest in and to,
Borrower's accounts with Lender (whether checking, savings, or some other
account), including without limitation all accounts held jointly with someone
else and all accounts Borrower may open in the future, excluding however all IRA
and Keogh accounts, and all trust accounts for which the grant of a security
interest would be prohibited by law. Borrower authorizes Lender, to the extent
permitted by applicable law, to charge or setoff all sums owing on this Note
against any and all such accounts.
If any payment of this Promissory Note becomes due and payable on a
Saturday, Sunday or legal holiday for commercial banks under applicable banking
laws, the maturity thereof shall be extended to the next succeeding business day
and interest thereon shall be payable at the then applicable rate during such
extension.
Borrower and all endorsers, sureties, and guarantors hereof hereby jointly
and severally waive presentment for payment, demand, protest, notice of protest
and of non-payment and of dishonor, and consent to extensions of time, renewal,
waivers, or modifications without notice and further consent to the release of
any collateral or any part thereof, with or without substitution.
This Note has been delivered to Lender and accepted by Lender in the State
of Utah. If there is a lawsuit, Borrower agrees upon Lender's request to submit
to the jurisdiction and venue of the courts of SALT LAKE County, the State of
Utah. This Promissory Note shall be governed by and construed in accordance with
the laws of the State of Utah except as modified by the arbitration provisions.
ARBITRATION DISCLOSURES:
1. Arbitration is usually final and binding on the parties and subject to only
very limited review by a court.
2. The parties are waiving their right to litigate in court, including their
right to a jury trial.
3. Pre-arbitration discovery is generally more limited and different from
court proceedings.
4. Arbitrators' awards are not required to include factual findings or legal
reasoning and any party's right to appeal or to seek modification of
rulings by arbitrators is strictly limited.
5. A panel of arbitrators might include an arbitrator who is or was affiliated
with the banking industry.
6. If you have questions about arbitration, consult your attorney or the
American Arbitration Association.
ARBITRATION PROVISIONS:
(a) Any controversy or claim between or among the parties, including but
not limited to those arising out of or relating to this Promissory Note or any
agreements or instruments relating hereto or delivered in connection herewith,
and including but not limited to a claim based on or arising from an alleged
tort, shall at the request of any
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party be determined by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. The arbitration proceedings shall
be conducted in Salt Lake City, Utah. The arbitrator(s) shall have the
qualifications set forth in subparagraph (c) hereto. All statutes of limitations
which would otherwise be applicable in a judicial action brought by a party
shall apply to any arbitration or reference proceeding hereunder.
(b) In any judicial action or proceeding arising out of or relating to
this Agreement or any agreements or instruments relating hereto or delivered in
connection herewith, including but not limited to a claim based on or arising
from an alleged tort, if the controversy or claim is not submitted to
arbitration as provided and limited in subparagraph (a) hereto, all decisions of
fact and law shall be determined by a reference in accordance with Rule 53 of
the Federal Rules of Civil Procedure or Rule 53 of the Utah Rules of Civil
Procedures or other comparable, applicable reference procedure. The parties
shall designate to the court the referee(s) selected under the auspices of the
American Arbitration Association in the same manner as arbitrators are selected
in Association-sponsored arbitration proceedings. The referee(s) shall have the
qualifications set forth in subparagraph (c) hereto.
(c) The arbitrator(s) or referee(s) shall be selected in accordance with
the rules of the American Arbitration Association from panels maintained by the
Association. A single arbitrator or referee shall be knowledgeable in the
subject matter of the dispute. Where three arbitrators or referees conduct an
arbitration or reference proceeding, the claim shall be decided by a majority
vote of the three arbitrators or referees, at least one of whom must be
knowledgeable in the subject matter of the dispute and at least one of whom must
be a practicing attorney. The arbitrator(s) or referee(s) shall award recovery
of all costs and fees (including reasonable attorneys' fees, administrative
fees, arbitrators' fees, and court costs). The arbitrator(s) or referee(s) also
may grant provisional or ancillary remedies such as, for example, injunctive
relief, attachment, or the appointment of a receiver, either during the pendency
of the arbitration or reference proceeding or as part of the arbitration or
reference award.
(d) Judgment upon an arbitration or reference award may be entered in any
court having jurisdiction, subject to the following limitation: the arbitration
or reference award is binding upon the parties only if the amount does not
exceed Four Million Dollars ($4,000,000); if the award exceeds that limit,
either party may commence legal action for a court trial de novo. Such legal
action must be filed within thirty (30) days following the date of the
arbitration or reference award; if such legal action is not filed within that
time period, the amount of the arbitration or reference award shall be binding.
The computation of the total amount of an arbitration or reference award shall
include amounts awarded for arbitration fees, attorneys' fees, interest, and all
other related costs.
(e) At Zions option, foreclosure under a deed of trust or mortgage may be
accomplished either by exercise of a power of sale under the deed of trust or by
judicial foreclosure. The institution and maintenance of an action for judicial
relief or pursuit of a provisional or ancillary remedy shall not constitute a
waiver of the right of any party, including the plaintiff, to submit the
controversy or claim to arbitration if any other party contests such action for
judicial relief.
(f) Notwithstanding the applicability of other law to any other provision
of this Promissory Note, the Federal Arbitration Act, 9 U.S.C. Section 1 ET
SEQ., shall apply to the construction and interpretation of this arbitration
section.
This Promissory Note evidences a revolving line of credit under which
Borrower may repeatedly borrower and repay provided an event of default has not
occurred.
This Promissory Note is secured by a Commercial Security Agreement dated
September 14, 1999.
This is a renewal of a Promissory Note from Borrower to lender dated
September 14, 1999, as amended in the original principal amount of
$20,000,000.00.
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MOTOR CARGO INDUSTRIES, INC.
By: /s/ Lynn H. Wheeler
-----------------------------------
Lynn H. Wheeler, Vice President/CFO
MOTOR CARGO, CO-BORROWER
By: /s/ Lynn H. Wheeler
-----------------------------------
Lynn H. Wheeler, Vice President/CFO
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