EXHIBIT(b)(4)
SECURED PROMISSORY NOTE
(ACQUISITION LOAN)
$25,000,000 January 14, 2003
Greeneville, Tennessee
FOR VALUE RECEIVED, the undersigned, LANDAIR ACQUISITION
CORPORATION, a Tennessee corporation (referred to herein as "Maker"), promises
to pay to the order of FIRST TENNESSEE BANK NATIONAL ASSOCIATION, a national
banking association organized under the laws of the United States of America
("Payee"; Payee and any subsequent holder[s] hereof are hereinafter referred to
collectively as "Holder"), at the office of Payee at 2841 E. Andrew Johnson
Highway, Greeneville, Tennessee 37745, or at such other place as Holder may
designate to Maker in writing from time to time, the principal sum of up to
TWENTY FIVE MILLION DOLLARS ($25,000,000), payable in full on the earlier of (i)
March 5, 2003, or (ii) the effective time of the merger of Maker with Landair
Corporation, together with interest on the aggregate unpaid principal balance of
the Acquisition Loan evidenced hereby at the LIBOR Rate (as hereinafter
defined), determined as of the date hereof, plus two hundred seventy five (275)
basis points, pursuant to the terms of that certain Loan and Security Agreement
dated as of January 14, 2003, by and among Maker and the Payee (as the same may
be amended, restated, supplemented, extended, renewed, replaced or otherwise
modified from time to time, the "Acquisition Loan Agreement," capitalized terms
used but not otherwise defined herein shall have the same meanings as in the
Acquisition Loan Agreement).
The "LIBOR Rate" shall mean the London InterBank Offered Rate
of interest for an interest period of one (1) month, as reported in The Wall
Street Journal published on January 23, 2003. Each change in the rate which
results from a change in the LIBOR Rate shall become effective, without notice
to the undersigned, on the same day following any change in the LIBOR Rate;
provided, however, that if The Wall Street Journal is not published on such
date, the LIBOR Rate shall be determined by reference to The Wall Street Journal
last published immediately preceding such date.
Notwithstanding any other provision hereof, in no event shall
the rate of interest payable in respect of the indebtedness evidenced hereby
exceed the maximum rate of interest from time to time allowed to be charged by
applicable law (the "Maximum Rate"). Interest shall be calculated on the basis
of a 360-day year for each day that all or any part of the indebtedness
evidenced hereby shall be outstanding, to the extent permitted by applicable
law.
All payments in respect of the indebtedness evidenced hereby
shall be made in collected funds, and shall be applied to principal, accrued
interest and charges and expenses owing under or in connection with this Note in
such order as Holder elects, except that payments shall be applied to accrued
interest before principal.
The indebtedness evidenced hereby may be prepaid at any time
without penalty.
Time is of the essence of this Note. It is hereby expressly
agreed that in the event that any Event of Default, as defined in the
Acquisition Loan Agreement, shall occur; or should any default or event of
default occur under any other instrument or document now or hereafter
evidencing, securing or otherwise relating to the indebtedness evidenced hereby,
subject to applicable cure periods; then, and in such event, the entire
outstanding principal balance of the indebtedness evidenced hereby, together
with any other sums advanced hereunder, under the Acquisition Loan Agreement or
under any other instrument, document or agreement now or hereafter evidencing,
securing or in any way relating to the indebtedness evidenced hereby, together
with all unpaid interest accrued thereon, shall, in accordance with the terms of
the Acquisition Loan Agreement and without notice to Maker, at once become due
and payable and may be collected forthwith, regardless of the stipulated date of
maturity. Upon the occurrence of any default as set forth herein, at the option
of Holder and without notice to Maker, all accrued and unpaid interest, if any,
shall be added to the outstanding principal balance hereof, and the entire
outstanding principal balance, as so adjusted, shall bear interest thereafter
until paid at a rate (the "Default Rate") equal to the lesser of (i) the rate
that is four percentage points (4%) in excess of the interest rate designated
from time to time by Payee as its "Base Rate," which rate shall be adjusted on
each day that said "Base Rate" changes, or (ii) the Maximum Rate, regardless of
whether there has been an acceleration of the payment of principal as set forth
herein. All such interest shall be paid at the time of and as a condition
precedent to the curing of any such default.
To the extent permitted by applicable law, Maker shall pay to
Holder a late charge equal to four percent (4%) of any payment hereunder that is
not received by Holder within fifteen (15) days of the date on which it is due,
in order to cover the additional expense incident to the handling and processing
of delinquent payments; provided, however, that nothing in this provision shall
be deemed to waive any other right or remedy of the Holder hereof by reason of
Maker's failure to make payments when due hereunder.
In the event this Note is placed in the hands of an attorney
for collection or for enforcement or protection of the security, or if Holder
incurs any costs incident to the collection of the indebtedness evidenced hereby
or the enforcement or protection of the security, Maker and any indorsers hereof
agree to pay a reasonable attorney's fee, all court and other costs and the
reasonable costs of any other collection efforts.
Presentment for payment, demand, protest and notice of demand,
protest and nonpayment are hereby waived by Maker and all other parties hereto.
No failure to accelerate the indebtedness evidenced hereby by reason of default
hereunder, acceptance of a past-due installment or other indulgences granted
from time to time, shall be construed as a novation of this Note or as a waiver
of such right of acceleration or of the right of Holder thereafter to insist
upon strict compliance with the terms of this Note or to prevent the exercise of
such right of acceleration or any other right granted hereunder or by applicable
laws. Unless otherwise specifically agreed by Holder in writing, the liability
of Maker and all other persons now or hereafter liable for payment of the
indebtedness evidenced hereby, or any portion thereof, shall not be affected by
(1) any renewal hereof or other extension of the time for payment of the
indebtedness evidenced hereby or any amount due in respect thereof, (2) the
release of all or any part of any collateral now or hereafter securing the
payment of the indebtedness evidenced
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hereby or any portion thereof, or (3) the release of or resort to any person now
or hereafter liable for payment of the indebtedness evidenced hereby or any
portion thereof. This Note may not be changed orally, but only by an agreement
in writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
The indebtedness and other obligations evidenced by this Note
are secured by (1) the Acquisition Loan Agreement, (2) the Guaranty Agreement
dated as of the date hereof executed by Scott M. Niswonger and John A. Tweed
(the "Guarantors"), guaranteeing the payment of accrued interest only, (3) the
Pledge Agreement dated as of the date hereof executed by the Maker, and the
Guarantor, and (4) certain other instruments and documents, as more particularly
described in the Loan Agreement.
All agreements herein made are expressly limited so that in no
event whatsoever, whether by reason of advancement of proceeds hereof,
acceleration of maturity of the unpaid balance hereof or otherwise, shall the
interest and loan charges agreed to be paid to Holder for the use of the money
advanced or to be advanced hereunder exceed the maximum amounts collectible
under applicable laws in effect from time to time. If for any reason whatsoever
the interest or loan charges paid or contracted to be paid in respect of the
indebtedness evidenced hereby shall exceed the maximum amounts collectible under
applicable laws in effect from time to time, then, ipso facto, the obligation to
pay such interest and/or loan charges shall be reduced to the maximum amounts
collectible under applicable laws in effect from time to time, and any amounts
collected by Holder that exceed such maximum amounts shall be applied to the
reduction of the principal balance remaining unpaid hereunder and/or refunded to
Maker so that at no time shall the interest or loan charges paid or payable in
respect of the indebtedness evidenced hereby exceed the maximum amounts
permitted from time to time by applicable law. This provision shall control
every other provision in any and all other agreements and instruments now
existing or hereafter arising between Maker and Holder with respect to the
indebtedness evidenced hereby.
This Note has been negotiated, executed and delivered in the
State of Tennessee, and is intended as a contract under and shall be construed
and enforceable in accordance with the laws of said state, except to the extent
that Federal law may be applicable to the determination of the Maximum Rate.
As used herein, the terms "Maker" and "Holder" shall be deemed
to include their respective successors, legal representatives and assigns,
whether by voluntary action of the parties or by operation of law. In the event
that more than one person, firm or entity is a maker hereunder, then all
references to "Maker" shall be deemed to refer equally to each of said persons,
firms, or entities, all of whom shall be jointly and severally liable for all of
the obligations of Maker hereunder.
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IN WITNESS WHEREOF, the undersigned Maker has caused this Note
to be executed by its duly authorized officer as of the date first above
written.
MAKER:
LANDAIR ACQUISITION CORPORATION
By: /s/ Scott M. Niswonger
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Title: Secretary
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