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EXHIBIT 10.7
AMENDED AND RESTATED SECURED PROMISSORY NOTE
(Equipment Loan)
$15,000,000 Greeneville, Tennessee September 10, 1998
FOR VALUE RECEIVED, the undersigned, FORWARD AIR 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"), without grace, at the office of Payee at 2841 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
FIFTEEN MILLION DOLLARS ($15,000,000), with interest on the disbursed and unpaid
principal balance from the date of disbursement, until paid, at the rate of
interest hereinafter specified. The principal amount hereof, other than the
amount originally outstanding hereunder on the date hereof (the "Original
Amount"), shall be disbursed in one or more disbursements each made pursuant to
a Certificate of Draw Against Equipment Loan, in the form attached hereto,
executed by Maker and delivered to Payee with regard to such disbursement (each
a "Certificate"). Subject to the limitations hereinafter set forth, the unpaid
principal balance of each disbursement of indebtedness evidenced hereby shall be
due and payable in accordance with the Certificate with regard to such
disbursement and as provided in the Loan Agreement, as herein defined.
Capitalized terms used herein but not otherwise defined shall have the meaning
ascribed to them in that certain Amended and Restated Loan and Security
Agreement of even date herewith, by and between Maker and Payee (the "Loan
Agreement"), except that the terms "Principal Draw Amount", "First Payment
Date", and "Maturity Date" as used herein shall have the meanings ascribed to
them in the applicable Certificate.
The outstanding Principal Draw Amount of each disbursement hereunder,
including the Original Amount, shall bear interest from date of disbursement at
a rate per annum equal to LIBOR plus the Applicable Rate, as calculated and
adjusted from time to time in accordance with the Loan Agreement.
The Original Amount outstanding hereunder shall be payable in equal
monthly installments of combined principal and interest in the amount of
$314,590 each beginning on October 20, 1998 and continuing on the twentieth day
of each month thereafter until September 20, 2003 at which time the entire
Original Amount and all accrued but unpaid interest thereon shall be due and
payable. Such payments are based on an assumed rate of interest as provided in
Section 2.1(c) of the Loan Agreement, and Maker recognizes that such payments
may be adjusted by Holder as provided in Section 2.1(c) of the Loan Agreement.
The Principal Draw Amount of each disbursement and accrued interest
thereon, other than the Original Amount, shall be due and payable with interest
thereon in monthly installments as set forth in the Certificate for such
Principal Draw Amount and in Section 2.1(c) of the Loan
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Agreement beginning on the First Payment Date with respect to such disbursement,
with subsequent installments being payable on the same day of each succeeding
month thereafter until the Maturity Date with respect to such disbursement, at
which time the entire outstanding Principal Amount of such disbursement,
together with all accrued and unpaid interest, shall be due and payable in full.
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 only in accordance
with the provisions of the Loan Agreement.
Any advance by Payee to Maker that is not evidenced by another
instrument or agreement between the parties shall be conclusively presumed to
have been made hereunder when such advance is either (1) deposited or credited
to an account of Maker with Payee, notwithstanding that such advance was
requested, orally or in writing, by someone other than Maker or that someone
other than Maker is authorized to draw on such account and may or does withdraw
the whole or part of such advance, or (2) made in accordance with the oral or
written instructions of Maker. The entire balance of all advances hereunder that
may be outstanding from time to time shall constitute a single indebtedness, and
no single advance increasing the outstanding balance hereof shall itself be
considered a separate loan, but rather an increase in the aggregate outstanding
balance of the indebtedness evidenced hereby.
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 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 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, at the option of Holder 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
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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 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 Loan Agreement, (2) the Guaranty Agreement dated as of the
dated hereof executed by Forward Air, Inc., FAF, Inc. and Transportation
Properties, Inc. (the "Guarantors"), (3) the Security Agreement dated as of the
date hereof executed by the Guarantors, (4) a Pledge and Security Agreement
dated as of the date hereof executed by the Maker, and (5) certain other
instruments and documents, as more particularly described in the Loan Agreement.
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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.
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:
FORWARD AIR CORPORATION
By: /s/ Bruce A. Campbell
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Title: President
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