EXHIBIT 10.69
Form of Swing Line Note
Promissory Note
(Swing Line Loan)
$10,000,000 _________, ______________
March 11, 1998
FOR VALUE RECEIVED, TEXAS BOTTLING GROUP, INC., a Nevada corporation
having its principal place of business located in Dallas, Texas (the
"Borrower"), hereby promises to pay to the order of NATIONSBANK, NATIONAL
ASSOCIATION (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 Revolving Credit Termination
Date 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 TEN MILLION DOLLARS ($10,000,000)
or, if less than such principal amount, the aggregate unpaid principal amount
of all Swing Line Loans made by the Lender to the Borrower pursuant to the
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 SECTION 2.14 of the Agreement. All or any portion of the
principal amount of Swing Line Loans may be paid, reborrowed, 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 and
accrued but unpaid interest shall bear interest which shall be payable on
demand at the rates per annum set forth in the proviso to SECTION 2.2(a) of
the Agreement. Further, in the event of such acceleration, this Swing Line
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 Swing Line Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the
principal and interest, all costs of collection, including reasonable
attorneys' fees, and interest due thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This Swing Line Note is the Swing Line Note 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 Swing Line Loans evidenced hereby
were or are made and are to be repaid. This Swing Line 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 Swing Line 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 Swing Line 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 the 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 Swing Line 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.
TEXAS BOTTLING GROUP, INC.
WITNESS:
By:
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Name:
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Title:
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