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Exhibit 10.5
Loan No.: 0012744-001
PROMISSORY NOTE
(FIXED RATE)
(7135 Centennial Place, Nashville, Davidson County,
Tennessee)
$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 Payee's office at 10900 Northeast Fourth
Street, Suite 500,
Bellevue, Washington 98004, attention: 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
Borrower'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
Holder.
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 Borrower, it being
understood and agreed
that Borrower 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
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