Exhibit 10.5
Loan No.: 0012744-001
PROMISSORY NOTE
(FIXED RATE)
(▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇)
$10,150,000.00 September 29, 2005
FOR VALUE RECEIVED, WESTERN EXPRESS, INC., a Tennessee
corporation ("Borrower"), promises to pay to the order of GE COMMERCIAL FINANCE
BUSINESS PROPERTY CORPORATION, a Delaware corporation ("Payee"; Payee and any
subsequent holder of this Promissory Note (this "Note") being referred to herein
as "Holder"), at ▇▇▇▇▇'s office at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇: Middle Market Risk, or at such other
address as Holder may from time to time designate in writing, the principal sum
of Ten Million One Hundred Fifty Thousand and no hundredths Dollars
($10,150,000.00) together with interest from the date the proceeds of the loan
(the "Loan") evidenced by this Note are initially disbursed (including, without
limitation, disbursement into an escrow for the benefit of Borrower) until
Maturity (as defined below) on the principal balance from time to time remaining
unpaid hereon at the rate of six and ninety-five hundredths percent (6.95%) per
annum (computed on the basis of a 360-day year consisting of twelve (12)
consecutive thirty (30)-day months) in installments as follows: (i) interest
only in advance at the rate of $1,959.51 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 for the period from the date of such disbursement to and including the
last day of the month during which such disbursement occurs, and (ii) two
hundred thirty-nine (239) installments of principal and interest in the amount
of $78,388.50 each shall be payable commencing on November 1, 2005, and
continuing on the first day of each and every succeeding month until October 1,
2025 ("Maturity"), at which time all then unpaid principal and interest hereon
shall be due and payable.
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.
Borrower shall authorize and make such arrangements as may be
necessary to enable Holder to obtain payments due under this Note and the other
Loan Documents through the automated clearing house system ("ACH System"). Such
authorizations and arrangements shall include, without limitation, establishing
and maintaining an account with a commercial bank that is a member of the ACH
System and entering into an ACH System agreement with Holder.
If any payment (other than the final, balloon payment, if any)
shall not be received by Holder within fifteen (15) days after its due date,
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. A late charge of $1,000.00 will be assessed with respect to any
delinquent balloon payment.
Upon payment of a "Prepayment Fee" (as described below),
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 Fee shall be equal to the greater of one
percent (1.0%) of the outstanding principal balance, or the positive difference,
if any, between (i) the present value as of the date of prepayment of all
scheduled future installments of principal and interest due under this Note and
(ii) the outstanding principal balance of this Note on the date of prepayment.
All present values shall be calculated using a discount rate equal to the weekly
average yield reported by the Federal Reserve Board in Federal Reserve
Statistical Release H.15 [519] as of the Friday immediately preceding the week
in which the prepayment is made for U.S. Treasury Constant Maturities having a
maturity equal to the remaining average life (rounded to the nearest published
maturity) of the Loan. If the Federal
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Reserve Board ceases to publish Statistical Release H.15 [519], then the weekly
average yield for U.S. Treasury Constant Maturities will be determined from
another source designated by Holder in its sole discretion. For repayments made
during the last 90 days prior to Maturity, no Prepayment Fee shall apply, unless
an Event of Default shall have occurred and remains uncured.
If Holder at any time accelerates this Note after an Event of
Default (defined below), then Borrower shall be obligated to pay the Prepayment
Fee in accordance with the foregoing schedule. The Prepayment Fee shall not be
payable in the case of an assumption of the Loan (if permitted by Holder
pursuant to the terms of the Security Instrument (as hereinafter defined)), nor
with respect to condemnation awards or insurance proceeds from fire or other
casualty which Holder applies to prepayment, nor with respect to ▇▇▇▇▇▇▇▇'s
prepayment of the Note in full during the last 90 days of the term of this Note
unless an Event of Default has occurred and remains uncured. Borrower expressly
acknowledges that such Prepayment Fee is not a penalty but is intended solely to
compensate Holder for the loss of its bargain and the reimbursement of internal
expenses and administrative fees and expenses incurred by ▇▇▇▇▇▇.
The Loan is secured, in part, by a certain Commercial Deed of
Trust, Security Agreement, Assignment of Leases and Rents, Financing Statement,
and Fixture Filing (the "Security Instrument") covering the real property and
other assets (the "Property") described therein, and by certain other documents
executed and delivered in connection herewith (this Note, the Security
Instrument and such other documents are collectively called the "Loan
Documents").
Subject to the exceptions described below, Holder shall not
seek any deficiency judgment against ▇▇▇▇▇▇▇▇, it being understood and agreed
that ▇▇▇▇▇▇▇▇ shall not have any personal liability for the payment of the
indebtedness evidenced by the loan documents executed or delivered in connection
with this Note (the "Loan Documents"), and such indebtedness shall be considered
limited recourse to the Borrower.
The foregoing notwithstanding, Holder shall have full recourse
against Borrower for the full payment of (i) any Prepayment Fee due under this
Note; (ii) taxes, insurance premiums, and other amounts advanced by Holder to
protect the collateral described in the Security Instrument; and (iii) all
attorney's fees or other costs of collection incurred by Holder pursuant to any
of the Loan Documents. In addition, Holder shall have full recourse against
Borrower for the full payment of all indebtedness evidenced by the Loan
Documents in the event that any of the following occur: (i) ▇▇▇▇▇▇▇▇ has
committed fraud in any of the documents executed in connection with the
indebtedness evidenced by the Loan Documents or in any materials submitted to
Holder or any other party in connection therewith; or (ii) Borrower has
intentionally misrepresented material facts with respect to Borrower or with
respect to the nature, status or history of the Property.
In addition, Holder shall have full recourse against Borrower
for any losses, damages, costs and expenses arising out of or in connection with
the occurrence of any of the following: (i) Borrower misapplies or fails to
remit to Holder in accordance with the terms of the Loan Documents any insurance
proceeds or any condemnation proceeds involving the Property; (ii) Borrower
fails to remit to Holder after an Event of Default (as hereinafter defined) an
amount equal to rents, issues, profits, revenues, income or proceeds of the
Property which either are in Borrower's possession or control as of the date of
an Event of Default or are thereafter received by Borrower or by any third party
on behalf of ▇▇▇▇▇▇▇▇; (iii) Borrower collects advance rents in violation of any
provision of the Loan Documents; (iv) Borrower misapplies any security deposit;
or (v) Borrower breaches its obligations under any lease of the Property (or any
part thereof).
In addition, nothing contained herein shall: (i) be deemed to
be a release or impairment of any part of the indebtedness evidenced by this
Note or of the lien created by the Security Instrument; (ii) limit or otherwise
prejudice in any way the rights of Holder to enforce any of its rights and
remedies under this Note or under the Security Instrument, including, if
necessary, naming Borrower as a defendant in any suit, action or proceeding;
(iii) limit the right of Holder to proceed against Borrower for the Prepayment
Fee; (iv) limit the right of Holder to proceed and recover a personal judgment
against any
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person or entity receiving funds from Borrower in connection with acts specified
in the preceding paragraph of this Note; (v) limit the liability of Borrower (or
any other party) under the Environmental Indemnity Agreement Regarding Hazardous
Substances executed in favor of Holder; or (vi) limit the liability of any
guarantor of the Borrower's obligations owing to Holder.
Each of the following shall constitute an Event of Default
("Event of Default") hereunder and under the Security Instrument:
(a) Failure of Holder to receive any payment of principal,
interest, or Prepayment Fee upon this Note when due, and such failure shall
continue for ten (10) days after written notice is given by ▇▇▇▇▇▇ to Borrower
of the same; or
(b) The occurrence of an "Event of Default" as defined in any
Loan Document (other than this Note).
Upon the occurrence of any Event of Default, Holder 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 Holder 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 fifteen percent
(15.00%) per annum or the maximum interest rate permitted by law, whichever is
less (the "Default Rate").
If this Note is placed in the hands of an attorney for
collection, Borrower shall pay reasonable attorneys' fees and costs incurred by
Holder 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, reasonable 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 Tennessee 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
Tennessee 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,
all in the events, on the terms, and in the manner provided for in the Security
Instrument.
Borrower and all sureties, endorsers, guarantors and other
parties now or hereafter liable for the payment of this Note, in whole or 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
except those for which the Loan Documents expressly provide, 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 Holder 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 Holder with any person now or hereafter liable for
the payment of this Note, even if Borrower is not a party to such agreement.
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All agreements between Borrower and Holder, 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 Holder exceed the maximum amount
permissible under the applicable law. If, from any circumstance whatsoever,
interest would otherwise be payable to Holder in excess of the maximum amount
permissible under applicable law, the interest payable to Holder shall be
reduced to the maximum amount permissible under applicable law; and if from any
circumstance Holder 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 Holder 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. Holder 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 Holder.
WAIVER OF JURY TRIAL. ▇▇▇▇▇▇▇▇ AND PAYEE HEREBY KNOWINGLY,
VOLUNTARILY AND INTELLIGENTLY WAIVE ANY AND ALL RIGHTS THAT EACH PARTY TO THIS
NOTE MAY NOW OR HEREAFTER HAVE UNDER THE LAWS OF THE UNITED STATES OF AMERICA OR
THE STATE OF TENNESSEE, TO A TRIAL BY JURY OF ANY AND ALL ISSUES ARISING
DIRECTLY OR INDIRECTLY IN ANY ACTION OR PROCEEDING RELATING TO THIS NOTE, THE
LOAN DOCUMENTS OR ANY TRANSACTIONS CONTEMPLATED THEREBY OR RELATED THERETO. IT
IS INTENDED THAT THIS WAIVER SHALL APPLY TO ANY AND ALL DEFENSES, RIGHTS, CLAIMS
AND/OR COUNTERCLAIMS IN ANY SUCH ACTION OR PROCEEDING. BORROWER UNDERSTANDS THAT
THIS WAIVER IS A WAIVER OF A CONSTITUTIONAL SAFEGUARD, AND EACH PARTY
INDIVIDUALLY BELIEVES THAT THERE ARE SUFFICIENT ALTERNATE PROCEDURAL AND
SUBSTANTIVE SAFEGUARDS, INCLUDING, A TRIAL BY AN IMPARTIAL JUDGE, THAT
ADEQUATELY OFFSET THE WAIVER CONTAINED HEREIN.
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.
TIME IS OF THE ESSENCE HEREUNDER.
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇ has executed or caused this Note
to be executed by its duly authorized officer under seal as of the year and day
first written above.
BORROWER:
WESTERN EXPRESS, INC.,
a Tennessee corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.,
Chief Financial Officer
[SEAL]
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