Exhibit (b)(5)
TERM NOTE
$3,500,000.00 Dated: September 13, 2004
Chicago, Illinois Due Date: March 13, 2006
FOR VALUE RECEIVED, XXXX BROS. TRANSPORTATION INC., a Delaware
corporation (the "Borrower"), whose address is 0000 Xxxxxxx 00, Xxxxxxx, XX
00000, xxxxxxxx to pay to the order of LASALLE BANK NATIONAL ASSOCIATION, a
national banking association (hereinafter, together with any holder hereof, the
"Bank"), whose address is 000 Xxxxx Xx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, on
or before March 13, 2006 (the "Term Loan Maturity Date"), the principal sum of
THREE MILLION FIVE HUNDRED THOUSAND and 00/100 DOLLARS ($3,500,000.00), which
amount is the principal amount of the Term Loan made by the Bank to the Borrower
under and pursuant to that certain Loan and Security Agreement dated as of
September 13, 2004, executed by and between the Borrower and the Bank, as
amended from time to time (as amended, supplemented or modified from time to
time, the "Loan Agreement"), together with interest (computed on the actual
number of days elapsed on the basis of a 360 day year) on the principal amount
of the Term Loan outstanding from time to time as provided in the Loan
Agreement. Capitalized words and phrases not otherwise defined herein shall have
the meanings assigned thereto in the Loan Agreement.
The outstanding principal of this Term Note, and all accrued interest
thereon, shall be payable as provided in the Loan Agreement, and the outstanding
principal balance of this Term Note, and all accrued and unpaid interest
thereon, shall be due and payable in full on the Term Loan Maturity Date, unless
payable sooner pursuant to the provisions of the Loan Agreement.
This Note evidences the Term Loan incurred by the Borrower under and
pursuant to the Loan Agreement, to which reference is hereby made for a
statement of the terms and conditions under which the Term Loan Maturity Date or
any payment hereon may be accelerated. The holder of this Term Note is entitled
to all of the benefits and security provided for in the Loan Agreement.
Principal and interest shall be paid to the Bank at its address set
forth above, or at such other place as the holder of this Term Note shall
designate in writing to the Borrower. The Term Loan made by the Bank, and all
payments on account of the principal and interest thereof shall be recorded on
the books and records of the Bank and the principal balance as shown on such
books and records, or any copy thereof certified by an officer of the Bank,
shall be rebuttably presumptive evidence of the principal amount owing
hereunder.
Except for such notices as may be required under the terms of the Loan
Agreement, the Borrower waives presentment, demand, notice, protest, and all
other demands, or notices, in connection with the delivery, acceptance,
performance, default, or enforcement of this Term Note, and assents to any
extension or postponement of the time of payment or any other indulgence.
The Term Loan evidenced hereby has been made and this Term Note has
been delivered at the Bank's main office set forth above. This Term Note shall
be governed and construed in accordance with the laws of the State of Illinois,
in which state it shall be performed, and shall be binding upon the Borrower,
and its legal representatives, successors, and assigns. Wherever possible, each
provision of the Loan Agreement and this Term Note shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of the Loan Agreement or this Term Note shall be prohibited by or be invalid
under such law, such provision shall be severable, and be ineffective to the
extent of such prohibition or invalidity, without invalidating the remaining
provisions of the Loan Agreement or this Term Note. The term "Borrower" as used
herein shall mean all parties signing this Term Note, and each one of them, and
all such parties, their respective successors and assigns, shall be jointly and
severally obligated hereunder.
IN WITNESS WHEREOF, the Borrower has executed this Term Note as of the
date set forth above.
XXXX BROS. TRANSPORTATION INC.,
a Delaware corporation
By: /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
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Title: President
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