Exhibit 10.1
CONFORMED COPY THROUGH FOURTH
AMENDMENT,
AS OF DECEMBER 19, 2007
LOAN
AGREEMENT
(Revolving Line of
Credit)
THIS SECURED LOAN
AGREEMENT (“Agreement”) is entered into as of
December 27, 1999, by and between BIBP COMMODITIES,
INC. , a Delaware corporation (the “Borrower”)
, and CAPITAL DELIVERY, LTD. , a Kentucky corporation
(the “Lender”).
RECITAL
:
Borrower desires to establish a line of credit
with Lender to finance its working capital needs in operating its
business of purchasing cheese in accordance with product
specifications for Papa John’s Pizza restaurants and selling
cheese to PJ Food Service, Inc., the wholly owned distribution
subsidiary of Papa John’s International, Inc.
(“PJI”), and Lender is willing to make such loan on the
terms and conditions set forth herein.
AGREEMENT
:
NOW, THEREFORE, Borrower and Lender have agreed as
follows:
1 .
Loan .
(a)
Loan; Promissory Note . Lender agrees to make
“Advances” to Borrower from time to time during the
period commencing on the date hereof and ending on the day
immediately prior to the Maturity Date, as defined below, in an
aggregate principal amount not to exceed the Maximum Amount, as
defined below (the “Loan”). The Loan shall be
evidenced by a Promissory Note (the “Note”) of even
date herewith.
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(b)
Extension of Term . Effective December 31, 2000, and
continuing effective each December 31 thereafter, the Maturity
Date shall be extended for a period of one (1) year, provided
that on the effective of each such extension there exists then no
Event of Default, as defined below, and provided further that
Lender has not given notice to Borrower of nonextension prior to
such effective date.
(c)
Maximum Principal Balance . The aggregate outstanding principal
balance of the Loan shall not exceed $30,000,000 (“Maximum
Amount”).
(d)
Loan Account . Lender shall maintain a loan account on
its books in which shall be recorded all advances made by Lender to
Borrower pursuant to this Agreement, and all payments made by
Borrower with respect to the Loan; provided, however, that failure
to maintain such account or record any advances therein shall not
relieve Borrower of its obligations to repay the outstanding
principal amount of the Loan, all accrued interest thereon, and any
amounts payable with respect thereto in accordance with the terms
of this Agreement and the Note.
(e)
Interest Rate and Payment .
(i)
Interest shall accrue daily on the aggregate outstanding principal
balance of the Loan, for the period commencing on the date an
initial Advance under the Loan is made until the Loan is paid in
full, at a variable rate per annum equal to the “Prime
Rate” less one (1) percentage point, in respect of such
principal amount until such unpaid amount has been paid in full,
adjusted monthly on the first day of each calendar month.
“Prime Rate,” as used in this Note, shall mean the
interest rate published in The Wall Street Journal in the
“Money Rates” column as the prevailing “Prime
Rate,” it being understood and agreed that the Prime Rate is
not necessarily the lowest or best rate of interest available on
commercial loans of the nature evidenced by this Note.
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(ii)
Interest on the outstanding principal balance of the Loan shall be
calculated daily for each day on which there is an outstanding
balance on the Loan. Interest shall be due and payable as
provided in the Note.
(iii)
Interest shall be computed
on the basis of a 360-day year and the actual number of days
elapsed.
(iv)
Any principal or interest
payment due under the Note not paid at stated maturity, by
acceleration, conversion or otherwise, shall, to the extent
permitted by applicable law, thereafter bear interest (compounded
monthly and payable upon demand) at a rate which is 2% per annum in
excess of the rate of interest otherwise payable under this
Agreement in respect of such principal amount until such unpaid
amount has been paid in full (whether before or after
judgment). The charging or collection of any such additional
interest shall not be deemed a waiver of any of the Lender’s
rights arising thereby or hereunder, including the right to declare
an “Event of Default” hereunder.
(f)
Repayment of the Loan . If not earlier paid, or if not
accelerated for payment, the outstanding principal amount of the
Loan and all accrued and unpaid interest shall, at the close of
business on December 31, 2002 (the “Maturity
Date”), be paid in full.
(g)
One Obligation . All Advances made hereunder, and all
interest accrued thereon, shall constitute one obligation of
Borrower secured by all security interests, liens, claims, and
encumbrances from time to time hereafter granted to Lender by
Borrower.
(h)
Credit Resources . Borrower acknowledges that Lender has
informed it that Lender may not from time to time in the future
have cash, cash equivalents, and credit resources sufficient to
permit Lender to make all requested advances under this Agreement
and other agreements with developers and franchisees of PJI while
maintaining sufficient working capital for Lender’s expansion
and operating needs, and Borrower agrees that in the event Lender
shall fail to fund the Loan as and to the extent required hereby
and such failure shall constitute a
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breach of this
Agreement (a “Funding Default”), such Funding Default
shall not (v) constitute fraud (by any person or entity,
including Lender and its Successors and Assignees) or
(vi) give rise to any liability of any person or entity,
including Lender and its Successors and Assignees, in any other
tort, and Borrower further agrees that it shall be limited to its
remedies in contract solely against Lender.
(i)
Payment Method . All payments to be made by Borrower
hereunder shall be made in lawful money of the United States
(vii) by check delivered to Lender, (viii) in immediately
available funds, or (ix) via electronic funds transfer,
without set off, counterclaims, deduction or withholding of any
type.
2 .
Conditions on Advances . Advances under the Note shall be subject
to the following:
(a)
Lender shall have received, at least five (5) business days
prior to the day an Advance is to be made hereunder, (i) a
written request from an authorized officer of Borrower for an
Advance in a specific amount, (ii) a Certificate of Borrower
in the form attached hereto as Exhibit A, which shall be
signed by the president or chief financial officer of Borrower and
which shall certify that Borrower meets all conditions for receipt
of the Advance and is in compliance with this Agreement, and
(iii) copies of all other documents reasonably requested by
Lender.
(b)
No material adverse change, as determined by Lender in its sole
discretion, in the financial condition, results of operations,
assets, or business of Borrower, shall have occurred at any time or
times subsequent to the date hereof.
(c)
No Event of Default or any event that, through the passage of time
or the service of notice or both, would mature into an Event of
Default shall have occurred and be continuing under this Agreement
or the Note.
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(d)
The representations and warranties contained in Section 6
hereof shall be true and correct as of the date such Advance is
made.
(e)
Advances may be used solely to finance Borrower’s working
capital needs in operating its business of purchasing cheese in
accordance with product specifications for Papa John’s Pizza
restaurants and selling cheese to PJ Food Service, Inc.
(“PJFS”).
(f)
Advances will be permitted
only to the extent of Borrower’s deficit cash position, if
any, resulting from its business and the application of the Pricing
Formula in effect as of the date of this Agreement, or as amended
from time to time with the consent of Lender, and employed to
establish the price of cheese under the Cheese Purchase Agreement
between Borrower and PJFS.
(g)
No Advances will be made if any agreement between Lender (or any
affiliate of Lender) and Borrower (or any affiliate of Borrower) is
in default or has been terminated.
(h)
Advances will be made in increments of $100,000.
(i)
Advances shall be made by wire transfer from Lender to the account
of Borrower or by regular check of Lender payable to Borrower and
forwarded to Borrower by overnight courier to its address as set
forth herein for delivery on the next regular business
day.
3 .
Representations, Agreements and Warranties .
To induce the
Lender to enter into this Agreement, Borrower represents, warrants
and agrees as follows:
(a)
Borrower has full power and authority to enter into and perform
this Agreement; this Agreement has been duly entered into and
delivered and constitutes a legal, valid and binding obligation of
the Borrower enforceable in accordance with its terms.
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(b)
Borrower has no debt other than ordinary trade accounts payable,
except for the debt evidenced by the Note.
(c)
Borrower is a corporation duly organized and validly existing in
good standing under the laws of the state of Delaware and is
qualified to do business and is in good standing in every
jurisdiction where the nature of its business and the ownership of
its properties requires it to be so qualified and where failure so
to qualify might materially affect its business or property, and
has all requisite power and authority, corporate and otherwise, to
conduct its business, to own its property, and to execute, deliver
and perform all of its Obligations under this Agreement and the
Note.
(d)
Borrower’s registered office, chief executive office and
principal place of business, are at the addresses set forth in
Section 10.
(e)
The execution, delivery and performance of this Agreement and the
Note are within Borrower’s powers, have been duly authorized
by all necessary or proper action on the part of Borrower including
the consent of its members where required, are not in contravention
of any provision of law or of any agreement or indenture by which
Borrower is bound or of the organizational or charter documents of
Borrower and do not require the consent or approval of any
governmental body, agency, authority or other person that has not
been obtained and a copy thereof furnished to Lender.
(f)
Borrower is, and after giving effect to the transactions
contemplated hereby, will be solvent, and will remain solvent
throughout the Term.
(g)
No action or proceeding is
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