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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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