EXHIBIT 10.10
PROMISSORY NOTE
(Revolving Mortgage Line of Credit)
(LIBOR Rate)
$100,000,000.00 Charlotte, North Carolina
June 23, 2000
FOR VALUE RECEIVED, SRE GEORGIA - 1, L.P., a Georgia limited
partnership, SRE GEORGIA - 2, L.P., a Georgia limited partnership, SRE GEORGIA -
3, L.P., a Georgia limited partnership, SRE TEXAS - 1, L.P., a Texas limited
partnership, SRE TEXAS - 2, L.P., a Texas limited partnership, SRE TEXAS - 3,
L.P., a Texas limited partnership, SRE ALABAMA - 1, LLC, an Alabama limited
liability company, SRE ALABAMA - 2, LLC, an Alabama limited liability company,
SRE ALABAMA - 3, LLC, an Alabama limited liability company, SREALESTATE ARIZONA
- - 1, LLC, an Arizona limited liability company, SREALESTATE ARIZONA - 2, LLC, an
Arizona limited liability company, SREALESTATE ARIZONA - 3, LLC, an Arizona
limited liability company, SREALESTATE ARIZONA - 4, LLC, an Arizona limited
liability company, SRE FLORIDA - 1, LLC, a Florida limited liability company,
SRE FLORIDA - 2, LLC, a Florida limited liability company, SRE FLORIDA - 3, LLC,
a Florida limited liability company, SRE NEVADA - 1, LLC, a Nevada limited
liability company, SRE NEVADA - 2, LLC, a Nevada limited liability company, SRE
NEVADA - 3, LLC, a Nevada limited liability company, SRE SOUTH CAROLINA - 1,
LLC, a South Carolina limited liability company, SRE SOUTH CAROLINA - 2, LLC, a
South Carolina limited liability company, SRE TENNESSEE - 1, LLC, a Tennessee
limited liability company, SRE TENNESSEE - 2, LLC, a Tennessee limited liability
company, SRE TENNESSEE - 3, LLC, a Tennessee limited liability company, SRE
VIRGINIA - 1, LLC, a Virginia limited liability company, and SRE HOLDING, LLC, a
North Carolina limited liability company (Collectively, "Borrowers"), whose
address is 6415 Idlewild Road, Suite 109, Charlotte, North Carolina 28212,
promises to pay to FORD MOTOR CREDIT COMPANY, a Delaware corporation ("Lender"),
or order, at 6302 Fairview Road, Suite 500, Charlotte, North Carolina 28210, or
at such other place as Lender may from time to time in writing designate, in
lawful money of the United States of America, the principal sum of ONE HUNDRED
MILLION AND 00/100 DOLLARS ($100,000,000.00), or so much thereof as may be
advanced from time to time pursuant to the terms of the Loan Agreement (as
defined herein), together with interest on the principal balance outstanding
from time to time, in like money, from the date of the first advance of
principal by Lender under this Promissory Note (this "Note"), to and including
the Maturity Date (as defined herein), at the rate of two percent (2.00%) per
annum above the LIBOR Rate (as defined herein) in effect from time to time (the
"Applicable Interest Rate"):
This Note is issued by Borrowers pursuant to a Permanent Loan Agreement
among Lender and Borrowers dated as of even date, which is incorporated herein
by reference. Unless otherwise defined herein or unless otherwise required by
the context of this Note, capitalized terms used in this Note will have the
meanings ascribed to those terms in the Loan Agreement.
For purposes of computing interest during the term of this Note, the
Applicable Interest Rate for each calendar month shall be based on the LIBOR
Rate in effect on the last day of the prior calendar month. All changes in the
Applicable Interest Rate shall become effective on the first day of a calendar
month following a change in the LIBOR Rate and shall be deemed in effect
throughout such calendar month.
The Principal Balance and interest thereon at the Applicable Interest
Rate shall be due and payable as hereinafter set forth.
Prior to the Advance Maturity Date, the outstanding Principal Balance
hereunder may fluctuate up and down from time to time as Advances (as defined in
the Loan Agreement) are made and Borrowers repay the Principal Balance, or any
portion thereof; provided, however, that the outstanding Principal Balance of
this Note plus the outstanding Principal Balance of the Construction Note does
not exceed $100,000,000.00. The Advances shall be made subject to the terms of
the Loan Agreement.
Lender shall, and is hereby authorized by Borrowers to, endorse on
Schedule A attached hereto and made a part hereof (or on a continuation of such
schedule) an appropriate notation evidencing the date and amount of each
Advance, the applicable Advance Rate, monthly payment amount, and the Property
being funded with the Advance; provided, however, that the failure of Lender to
make such a notation on this Note shall not affect any obligation of Borrowers
under this Note. Any such notation shall be prima facie evidence as to the date,
amount, Advance Rate and monthly payment of such Advance.
The term "Advance Rate" shall mean, as to each Advance, the rate which
is two percentage points above the LIBOR Rate in effect on the day such Advance
is made.
The term "Advance Termination Date" shall mean the date five (5) years
from the date hereof.
The term "Loan Agreement" shall mean the Permanent Loan Agreement dated
as of even date herewith between Borrowers and Lender.
The term "Construction Note" shall mean the Promissory Note dated as of
even date herewith from Borrowers to the order of Lender in the principal amount
of $50,000,000.00.
The term "LIBOR Rate" shall mean the monthly arithmetic average of the
per annum interest rate announced from time to time as the one month London
Interbank Offered Rates quoted each Monday for the previous Friday under the
Money Rates Column of the Wall Street Journal, or as published in such other
publication as Lender may designate. In the event such rate is not quoted on
Monday for the previous Friday, the rate quoted on the first business day of the
week for the last business day of the previous week shall be utilized.
The term "Deeds of Trust" shall mean those certain instruments entitled
Deeds of Trust and Assignment of Leases and Rents and Security Agreement (and
Financing Statement and Fixture Filing), from Borrowers to the Trustee specified
therein, in trust for Lender, and entitled Mortgages and Assignment of Leases
and Rents and Security Agreement (and Financing Statement and Fixture Filing)
from Borrowers to Lender, dated as of even date with this Note and any other
mortgages or deeds of trust granted by Borrowers to Lender executed
-2-
hereafter, securing payment of this Note, and covering certain real and personal
property described therein (collectively, the "Properties").
The term "Loan Maturity Date" shall mean, as to each Advance, the date
ten (10) years less one day after the Date hereof.
-3-
The term "Other Security Documents" shall mean any and all of the
documents other than this Note and the Deeds of Trust, now or hereafter executed
by Borrower and/or Sonic Automotive, Inc., by or in favor of Lender, which
wholly or partially guarantee or secure this Note or are executed in connection
with this Note.
The term "Principal Balance" shall mean the aggregate unpaid principal
balance of all Advances outstanding from time to time.
The term "Quarter" shall mean each three-month period commencing
January 1, April 1, July 1 and October 1 during the term of this Note.
From the date hereof to and including the Loan Maturity Date, the
Principal Balance and interest thereon shall be due and shall be payable, as to
each Advance, as follows:
(a) equal consecutive monthly payments in an amount to be determined on
the date such Advance is made, sufficient to amortize the Advance over: (i) a
300-month period if the Property being funded with the Advance is less than five
(5) years old as of the date of the Advance or (ii) a 240-month period if the
Property being funded with the Advance is five (5) or more years old as of the
date of the Advance, (including interest at the applicable Advance Rate on the
unpaid Principal Balance outstanding), commencing on the first day of the first
month following funding of the first Advance hereunder, and continuing monthly
thereafter on the first day of each month. The amount of each of such payments
in respect of the outstanding Advances shall be aggregated by Lender each month
and shall be due as one monthly installment. Each installment shall be applied
first to interest at the Advance Rate and the balance to reduction of the
Principal Balance.
(b) on the Loan Maturity Date, a final installment which shall include
all unpaid amount of the Principal Balance and interest accrued and unpaid
thereon and any and all other payments due under this Note, the Agreement, the
Deeds of Trust, and the Other Security Documents; and
In the event that, because of a change in the LIBOR Rate the Applicable
Interest Rate shall be greater or less than the Advance Rate for any Advance for
any calendar month during a Quarter, the scheduled monthly installment
determined in accordance with the foregoing paragraph (a) will not change, but
Borrower and Lender shall make an adjustment as hereinafter provided. If
interest due at the Applicable Interest Rate shall be higher than interest paid
at the Advance Rate during any such Quarter, Borrower shall pay to Lender,
within 30 days following the end of such Quarter, an amount equal to the
difference between (i) the sum of the interest payments that would have been
paid hereunder during such Quarter if interest payable during such Quarter had
been calculated at the Applicable Interest Rate(s) in effect, and (ii) the sum
of the interest payments actually made during such Quarter, computed at the
Advance Rate. If interest due at the Applicable Interest Rate shall be less than
interest paid at the Advance Rate during a Quarter, Lender shall credit to the
installments hereof then remaining unpaid, in the inverse order of their
maturity, an amount equal to the difference (calculated as provided in the
preceding sentence) on the last day of such Quarter.
Borrowers may prepay the unpaid Principal Balance in whole or from time
to time in part, at any time, upon payment of interest accrued on the unpaid
Principal Balance outstanding
-4-
through the day of prepayment and all other charges due hereunder and under the
Deeds of trust and the Other Security Documents, without premium. All payments
and prepayments received by Lender prior to an Event of Default, including,
without limitation, any condemnation awards or insurance proceeds received under
the Deeds of Trust which Lender is permitted to apply on the indebtedness
evidenced hereby will be applied first to accrued unpaid interest at the
Applicable Rate and then: (a) in the case where such prepayment is not made in
connection with the release of a Property pursuant to Section 7 of the Loan
Agreement, to the outstanding principal balance of Advances then remaining
unpaid in the order in which the Advances were made, and (b) in the case where
such prepayment is made in connection with the release of a Property pursuant to
Section 7 of the Agreement, to the outstanding principal balance of the Advance
used to fund the Property being released.
Any prepayments made in connection with the release of any Property
shall be noted on Schedule B attached hereto and made a part hereof. Lender
shall, and is hereby authorized by Borrowers to endorse on Schedule B an
appropriate notation evidencing the date and amount of each such prepayment.
Notwithstanding any provision in this Note, the total liability for
payments of interest and payments in the nature of interest, including without
limitation, all charges, fees or any sums which may at any time be deemed to be
interest, shall not exceed the amount which Lender may lawfully collect. In the
event the total liability for payments of interest and payments in the nature of
interest, including without limitation, all charges, fees or other sums which
may at any time be deemed to be interest, shall, for any reason whatsoever,
result in an effective rate of interest, which for any month or other interest
payment period exceeds the amount which Lender may lawfully collect, all sums in
excess of those lawfully collectible as interest for the period in question
shall, without further notice to any party hereto, be applied as a premium-free
reduction of the Principal Balance immediately upon receipt of such sums by
Lender, with the same force and effect as though Borrowers had specifically
designated such excess sums to be so applied to the reduction of the Principal
Balance; provided, however, that Lender may, at any time, and from time to time,
elect, by notice in writing to Borrowers, to waive, reduce or limit the
collection of any sums (or refund to Borrowers any sums collected) in excess of
those lawfully collectible as interest rather than accept such sums as
prepayment of the Principal Balance.
Payment of this Note is secured by the Deeds of Trust and the Other
Security Documents. All of the agreements, conditions, covenants, provisions and
stipulations contained in the Deeds of Trust and the Other Security Documents
which are to be kept and performed by Borrowers are hereby made a part of this
Note to the same extent and with the same force and effect as if they were fully
set forth herein, and Borrowers covenant and agree to keep and perform them, or
cause them to be kept and performed, strictly in accordance with their terms.
Time is of the essence hereof and if any of the Principal Balance or
interest on this Note or other sum due hereunder is not paid within fifteen (15)
days of when due, Borrowers shall pay to Lender a late charge payment equal to
four percent (4%) of the amount of such installment or the maximum rate
permitted by law, whichever is less. If any "Event of Default" (as such term is
defined in the Deeds of Trust) shall occur, then Lender, at its option and
without further notice, demand or presentment for payment to Borrowers or
others, may declare immediately due and payable the unpaid Principal Balance and
interest accrued thereon to the date of such Event of Default and thereafter at
the rate of three percent (3%) per annum over
-5-
the Applicable Interest Rate, together with any reasonable attorneys' fees and
costs (through and including any appellate fees and other reasonable costs and
any fees and costs incurred in enforcing this Note, the Agreement, the Deeds of
Trust or the Other Security Documents in any bankruptcy or insolvency
proceeding) incurred by Lender in collecting or enforcing payment thereof to the
extent allowed by law and all other sums owed by Borrowers under this Note, the
Agreement and the Deeds of Trust and the Other Security Documents, anything in
this Note, the Agreement, the Deeds of Trust and the Other Security Documents to
the contrary notwithstanding, all without any relief whatever from any valuation
or appraisement laws, and payment thereof may be enforced and recovered in whole
or in part at any time by one or more of the remedies provided to Lender in this
Note, the Agreement and the Deeds of Trust and the Other Security Documents.
The remedies of Lender, as provided in this Note, the Agreement, the
Deeds of Trust and the Other Security Documents, shall be cumulative and
concurrent and may be pursued singularly, successively or together, at the sole
discretion of Lender, and may be exercised as often as occasion therefor shall
occur; and the failure to exercise any such right or remedy shall in no event be
construed as a waiver or release thereof.
Borrower waivess waive presentment for payment, demand, notice of
demand, notice of nonpayment or dishonor, protest and notice of protest of this
Note, and all other notices except as provided in this Note, the Loan Agreement,
the Deeds of Trust or any Other Security Documents in connection with the
delivery, acceptance, performance, default, or enforcement of the payment of
this Note.
Lender shall not be deemed, by any act of omission or commission, to
have waived any of its rights or remedies hereunder unless such waiver is in
writing and signed by Lender and, then, only to the extent specifically set
forth in the writing. A waiver with reference to one event shall not be
construed as continuing or as a bar to or waiver of any right or remedy as to a
subsequent event.
This instrument shall be governed by and construed according to the
laws of the State of North Carolina.
Whenever used, the singular shall include the plural, the plural shall
include the singular, and the words "Lender" and "Borrower" shall be deemed to
include their respective heirs, administrators, executors, successors and
assigns.
In the event any one or more of the provisions hereof shall be invalid,
illegal or unenforceable in any respect, the validity of the remaining
provisions hereof shall be in no way affected, prejudiced or disturbed thereby.
-6-
The laws of South Carolina provide that in any real estate foreclosure
proceeding, a defendant against whom a personal judgment is taken or asked may
within thirty (30) days after the sale of the Property apply to the court for an
order of appraisal. The statutory appraisal value as approved by the court would
be substituted for the high bid and may decrease the amount of any deficiency
owing in connection with the transaction. THE UNDERSIGNED HEREBY WAIVE AND
RELINQUISHE THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE
JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY
APPRAISED VALUE OF THE MORTGAGED PROPERTY.
IN WITNESS WHEREOF, Borrowers, intending to be legally bound hereby,
have duly executed this Note under seal on the day and year first above written.
SRE HOLDING, LLC, a North Carolina
limited liability company,
SREALESTATE ARIZONA - 1, LLC,
an Arizona limited liability company,
SREALESTATE ARIZONA - 2, LLC,
an Arizona limited liability company,
SREALESTATE ARIZONA - 3, LLC,
an Arizona limited liability company,
SREALESTATE ARIZONA - 4, LLC,
an Arizona limited liability company,
SRE ALABAMA - 1, LLC,
an Alabama limited liability company,
SRE ALABAMA - 2, LLC,
an Alabama limited liability company,
SRE ALABAMA - 3, LLC,
an Alabama limited liability company,
SRE SOUTH CAROLINA - 1, a South
Carolina limited liability company,
SRE SOUTH CAROLINA - 2, a South
Carolina limited liability company,
SRE VIRGINIA - 1, LLC, a Virginia
limited liability company,
SRE TENNESSEE - 1, LLC, a Tennessee
limited liability company,
SRE TENNESSEE - 2, LLC, a Tennessee
limited liability company, and
SRE TENNESSEE - 3, LLC, a Tennessee
limited liability company
By: /s/ B. Scott Smith (SEAL)
-----------------------
B. Scott Smith, Vice President
-7-
of each of the companies
Attest: /s/ Stephen K. Coss
----------------------
Stephen K. Coss, Secretary
of each of the companies
SRE FLORIDA - 1, LLC, a Florida
limited liability company,
SRE FLORIDA - 2, LLC, a Florida
limited liability company,
SRE FLORIDA - 3, LLC, a Florida
limited liability company,
SRE NEVADA - 1, LLC, a Nevada
limited liability company,
SRE NEVADA - 2, LLC, a Nevada
limited liability company, and
SRE NEVADA - 3, LLC, a Nevada
limited liability company
By: /s/ B. Scott Smith (SEAL)
-----------------------
B. Scott Smith,
President of each of the companies
Attest: /s/ Stephen K. Coss
----------------------
Stephen K. Coss,
Secretary of each of the companies
SRE GEORGIA - 1, L.P.,
a Georgia limited partnership,
SRE GEORGIA - 2, L.P.,
a Georgia limited partnership, and
SRE GEORGIA - 3, L.P.,
a Georgia limited partnership
By: SONIC AUTOMOTIVE OF
GEORGIA, INC., a Georgia
corporation, the General Partner of
each of the partnerships
By: /s/ B. Scott Smith (SEAL)
-----------------------
B. Scott Smith,
Vice President
-8-
Attest: /s/ Stephen K. Coss
----------------------
Stephen K. Coss,
Secretary
SRE TEXAS - 1, L.P.,
a Texas limited partnership,
SRE TEXAS - 2, L.P.,
a Texas limited partnership, and
SRE TEXAS - 3, L.P.,
a Texas limited partnership
By: SONIC OF TEXAS,
INC., a Texas corporation, the
General Partner of each of the
Partnerships
By: /s/ B. Scott Smith (SEAL)
-----------------------
B. Scott Smith,
Vice President
Attest: /s/ Stephen K. Coss
----------------------
Stephen K. Coss,
Secretary
-9-