EXHIBIT 10.61
Form of Term Note
Promissory Note
(Term Loan)
$________________ ________, ________
March 11, 1998
FOR VALUE RECEIVED, THE COCA-COLA BOTTLING GROUP (SOUTHWEST), a Nevada
corporation having its principal place of business located in Dallas, Texas
(the "Borrower"), hereby promises to pay to the order of
___________________________________ (the "Lender"), in its individual capacity,
at the office of NATIONSBANK, NATIONAL ASSOCIATION, as agent for the Lenders
(the "Agent"), located at One Independence Center, 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (or at such other place or
places as the Agent may designate in writing) pursuant to the Credit
Agreement dated as of March 11, 1998 among the Borrower, the financial
institutions party thereto (collectively, the "Lenders") and the Agent (the
"Agreement" -- all capitalized terms not otherwise defined herein shall have
the respective meanings set forth in the Agreement), on the dates set forth
in the Credit Agreement or such earlier date as may be required pursuant to
the terms of the Agreement, in lawful money of the United States of America,
in immediately available funds, the principal amount of _____________________
DOLLARS ($______________) or such lesser amount as is advanced by the Lender
pursuant to SECTION 2.2 of the Credit Agreement, and to pay interest from the
date hereof on the unpaid principal amount hereof, in like money, at said
office, on the dates and at the rates provided in Article II of the
Agreement. All or any portion of the principal amount of Loans may be
prepaid or required to be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of the
Agreement or under the terms of the other Loan Documents executed in connection
with the Agreement, the then remaining unpaid principal amount hereof and
accrued but unpaid interest thereon shall bear interest which shall be payable
on demand at the rates per annum set forth in the proviso to SECTION 2.4 of the
Agreement. Further, in the event of such acceleration, this Term Note shall
become immediately due and payable, without presentation, demand, protest or
notice of any kind, all of which are hereby waived by the Borrower.
In the event this Term Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest due hereunder, all costs of collection, including reasonable
attorneys' fees, and interest thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This Term Note is one of the Term Notes referred to in the Agreement and is
issued pursuant to and entitled to the benefits and security of the Agreement to
which reference is hereby made for a more complete statement of the terms and
conditions upon which the Term Loan evidenced hereby was made and is to be
repaid. This Term Note is subject to certain restrictions on transfer or
assignment as provided in the Agreement.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law (a) the benefits of all provisions of law
for stay or delay of execution or sale of property or other satisfaction of
judgment against any of them on account of liability hereon until judgment be
obtained and execution issues against any other of them and returned satisfied
or until it can be shown that the maker or any other party hereto had no
property available for the satisfaction of the debt evidenced by this
instrument, or until any other proceedings can be had against any of them, and
(b) their right, if any, to require the holder hereof to hold as security for
this Term Note any collateral deposited by any of said Persons as security.
Except as otherwise expressly provided in the Loan Documents, protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
Notwithstanding any other provision herein, the aggregate interest rate
charged under this Term Note, including all charges or fees in connection
herewith deemed in the nature of interest under applicable law shall not exceed
the Highest Lawful Rate (as such term is defined below). If the rate of
interest (determined without regard to the preceding sentence) under this
Agreement at any time exceeds the Highest Lawful Rate (as defined below), the
outstanding amount of the Loans made hereunder shall bear interest at the
Highest Lawful Rate until the total amount of interest due hereunder equals the
amount of interest which would have been due hereunder if the stated rates of
interest set forth in the Agreement had at all times been in effect. In
addition, if, when the Loans made hereunder are repaid in full, the total
interest due hereunder (taking into account the increase provided for above) is
less than the total amount of interest which would have been due hereunder if
the stated rates of interest set forth in the Agreement had at all times been in
effect, then to the extent permitted by law, the Borrower shall pay to the Agent
an amount equal to the difference between the amount of interest paid and the
amount of interest which would have been paid if the Highest Lawful Rate had at
all times been in effect. Notwithstanding the foregoing, it is the intention of
the Lenders and the Borrower to conform strictly to any applicable usury laws.
Accordingly, if any Lender contracts for, charges, or receives any consideration
which constitutes interest in excess of the Highest Lawful Rate, then any such
excess shall be cancelled automatically and, if previously paid, shall at such
Lender's option be applied to the outstanding amount of the Loans made hereunder
or be refunded to the Borrower. As used in this paragraph, the term "Highest
Lawful Rate" means the maximum lawful interest rate, if any, that at any time or
from time to time may be contracted for, charged, or received under the laws
applicable to such Lender which are presently in effect or, to the extent
allowed by law, under such applicable laws which may hereafter be in effect and
which allow a higher maximum nonusurious interest rate than applicable laws now
allow.
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THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF TEXAS APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
IN WITNESS WHEREOF, the Borrower has caused this Term Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
THE COCA-COLA BOTTLING GROUP
(SOUTHWEST), INC.
WITNESS:
By:
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Name:
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Title:
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