EXHIBIT B
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FORM OF NOTES
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REVOLVING LOAN NOTE
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$____________ New York, New York
________ __, 1997
FOR VALUE RECEIVED, AFC ENTERPRISES, INC., a Minnesota corporation, having
an office at Six Concourse Parkway, Suite 1700, Atlanta, Georgia 30328-
5352("Borrower"), promises to pay to the order of BANCO POPULAR DE PUERTO RICO,
with an office at 0 Xxxx 00/xx/ Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and its
sucessors and assigns ("Lender"), or at such place as the holder hereof may from
time to time designate in writing, in lawful money of the United States of
America and in immediately available funds, the principal amount of ___________
DOLLARS ($_________) on the Maturity Date (as hereinafter defined). The
undersigned further agrees to pay interest at said office, in like money, from
the date hereof on the unpaid principal amount hereof from time to time
outstanding (the "Principal Amount") at the rates and on the dates specified in
Sections 2.7 and 2.9 of the Credit Agreement (hereinafter defined). The holder
of this Note is hereby authorized to record the date and amount of each payment
or prepayment of principal of the Loan on the schedule annexed hereto and made a
part hereof and any such recordation shall constitute prima facie evidence of
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the accuracy of the information so recorded in the absence of manifest error.
This Note is one of the Notes referred to in the Credit Agreement dated as
of August __, 1997 (as the same may from time to time be amended, modified or
supplemented, the "Credit Agreement") between Borrower and Lender, to which
reference is made for a statement of the rights, obligations and security of
Lender and the duties and obligations of Borrower in relation thereto; but
neither this reference to the Credit Agreement nor any provision thereof shall
affect or impair the absolute and
unconditional obligation of Borrower to pay the principal sum of and interest on
this Note when due.
All defined terms used but not specifically defined herein shall have the
meanings set forth in the Credit Agreement.
The unpaid principal balance of this Note, together with accrued interest
thereon, unless earlier paid, shall be due and payable in full on the Maturity
Date. All payments shall be applied to the payment of accrued interest hereon
and thereafter to the payment of principal, and shall otherwise be applied as
set forth in the Credit Agreement.
As used in this Note, the term "Maturity Date" shall mean the earlier to
occur of (a) the acceleration of the maturity of the Loan pursuant to the terms
of the Credit Agreement or (b) February __, 1999; provided however, in the event
the Conversion Requirement shall have been satisfied, the term of this Note
shall be extended for the Term Loan Period, but in no event shall the Maturity
Date occur later than February __, 2003.
This Note is secured by, among other things, the Mortgage, which encumbers
property situated in the City of ___________ and State of ________, more
particularly described in the Mortgage. This Note shall evidence, and the
Mortgage shall secure, the indebtedness described herein, and any future loans,
advances, payments and disbursements pursuant to the Mortgage shall be added to
the principal indebtedness hereunder.
This Note is subject to the express condition that at no time shall
Borrower be obligated or required to pay interest on the Debt at a rate which
could subject Lender to either civil or criminal liability as a result of being
in excess of the maximum interest rate which Borrower is permitted by applicable
law to contract or agree to pay. If by the terms of this Note, Borrower is at
any time required or obligated to pay interest on the Debt at a rate in excess
of such maximum rate, the rate of interest due under this Note shall be deemed
to be immediately reduced to such maximum rate and all previous payments in
excess of the maximum rate shall be deemed to have been payments in reduction of
principal and not on account of the interest due hereunder.
This Note may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Borrower or Lender, but only by an
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agreement in writing signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is
sought.
Borrower and all others who are or who may become liable for the payment of
all or any part of the Debt do hereby severally waive presentment and demand for
payment, notice of dishonor, protest, notice of protest, and non)payment, and
notice of intent to accelerate the maturity hereof (and of such acceleration).
No release of any security for the Debt or extension of time for payment of this
Note or any installment hereof, and no alteration, amendment or waiver of any
provision of this Note, the Credit Agreement, the Mortgage or the other Loan
Documents made by agreement between Lender and any other person or party shall
release, modify, amend, waive, extend, change, discharge, terminate or affect
the liability of Borrower, and any other who may become liable for the payment
of all or any part of the Debt, under this Note, the Credit Agreement, the
Mortgage or the other Loan Documents.
Borrower (and the undersigned representative of Borrower, if any)
represents that Borrower has full power, authority and legal right to execute,
deliver and perform its obligations pursuant to this Note, the Credit Agreement,
the Mortgage and the other Loan Documents and that this Note, the Credit
Agreement, the Mortgage and the other Loan Documents constitute valid and
binding obligations of Borrower.
This Note shall be governed and construed in accordance with the laws of
the State of New York without regard to principles of conflict of laws.
If any provision of this Note is held to be invalid or unenforceable by a
court of competent jurisdiction, the other provisions of this Note shall remain
in full force and effect.
Any failure by Lender to insist upon strict performance by Borrower of any
of the provisions of this Note, the Credit Agreement, the Mortgage or the other
Loan Documents shall not be deemed to be a waiver of any of the terms or
provisions of this Note, the Credit Agreement, the Mortgage or the other Loan
Documents, and Lender shall have the right thereafter to insist upon strict
performance by Borrower of any and all of them.
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All times, wherever stated herein, shall be of the essence of this Note.
Subject to the provisions of Section 9.8 of the Credit Agreement, Lender
shall have the right, exercisable at any time and from time to time, to sell,
transfer or assign this Note, the Credit Agreement, the Mortgage and the other
Loan Documents, or grant participations therein, or issue certificates or
securities evidencing a beneficial interest therein in a rated or unrated public
offering or private placement, and Lender may forward to any purchaser,
transferee, assignee, servicer, participant, investor or credit rating agency
rating such securities (collectively, an "Investor") or prospective Investor all
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documents and information in Lender's possession with respect to Borrower, the
Mortgaged Property (as defined in the Mortgage) and the Loan Documents as such
Investor or prospective Investor may request.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWER AND LENDER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THE LOAN EVIDENCED BY THIS
NOTE OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE CREDIT
AGREEMENT, THE MORTGAGE OR ANY OF THE OTHER LOAN DOCUMENTS, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF
BORROWER OR LENDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER'S MAKING
OF THE LOAN SECURED BY THE MORTGAGE AND THE OTHER LOAN DOCUMENTS.
IN WITNESS WHEREOF, Borrower has caused this Note to be executed by its
duly authorized officer as of the date first above written.
AFC ENTERPRISES, INC.,
a Minnesota corporation
By:_________________________
Name:_______________________
Title:______________________
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PAYMENTS AND PREPAYMENTS OF PRINCIPAL
Amount of
Amount of Principal Notations
Date Loan Payment made By
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