EXHIBIT 10.2
Published on May 10, 2000
EXHIBIT 10.2
PROMISSORY NOTE
(REVOLVING LINE OF CREDIT)
$17,600,000.00 Louisville, Kentucky
December 27, 1999
FOR VALUE RECEIVED, BIBP COMMODITIES, INC., a Delaware corporation with
its principal offices at 2002 Papa John's Boulevard, Louisville, Kentucky 40299
(the "Maker"), hereby promises and agrees to pay to the order of CAPITAL
DELIVERY, LTD., a Kentucky corporation with its principal office and place of
business in Louisville, Kentucky (the "Lender"), the principal sum of SEVENTEEN
MILLION SIX HUNDRED THOUSAND AND 00/100 DOLLARS ($17,600,000.00), or, if less,
the aggregate unpaid balance as may be outstanding from time to time, in legal
tender of the United States of America, together with interest thereon, all in
accordance with the provisions of the Loan Agreement (as defined below) and this
Note.
The outstanding principal balance of this Note, as the same shall exist
from time to time, shall bear interest daily at a rate per annum equal to the
"Prime Rate," as hereinafter defined, less one (1) percentage point. The
interest rate this Note bears shall be 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. In each month in which there is an
outstanding balance on this Note, interest shall be calculated throughout such
month at the rate in effect on the first day of such month and shall be paid in
arrears in legal tender of the United States of America on or before the tenth
(10th) day of the following month. Interest shall continue to accrue as provided
herein so long as any portion of the principal of, or interest on, this Note
shall remain unpaid. The entire outstanding principal balance of this Note and
all accrued and unpaid interest shall be paid on or before Decdmber 31, 2000
(the "Maturity Date"). All interest on this Note shall be computed on the basis
of the actual number of days elapsed over an assumed year consisting of Three
Hundred Sixty (360) calendar days.
Any principal or interest payment due under this 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 Note 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 a "Default" or an "Event of Default" hereunder.
This Note is a revolving note and is governed by that certain Loan
Agreement of even date herewith between Lender and the Maker (the "Loan
Agreement"). The Lender may make disbursements of principal to the Maker, from
time to time, commencing on the date of this Note and ending on the day
preceding the Maturity Date, in the form of "Advances" in the manner and subject
to the terms and conditions respecting such "Advances" as are set forth in the
Loan Agreement; provided, however, the aggregate outstanding principal balance
of this Note shall never exceed $17,600,000.00 (the "Maximum Committed Amount").
The amount of principal disbursed for each such "Advance" together with the date
of payments of principal on this Note shall be recorded by the Lender. The
amount of principal outstanding shown on the records of the Lender shall be
PRIMA FACIE correct.
Failure of Maker to pay principal or interest, or both, on the date and
in the amounts required by this Note shall constitute an "Event of Default," and
Lender may exercise any or all its rights and remedies, as provided in the Loan
Agreement. The occurrence of any Event of Default under the Loan Agreement or
the Ownership Pledge Agreement shall also constitute an Event of Default under
this Note whereupon the holder of this Note may, at its sole option, exercise
any or all its remedies as set forth in the Loan Agreement.
Failure of the holder of this Note to exercise any of its rights,
powers and/or remedies shall not constitute a waiver of the right to exercise
the same at that or any other time. All rights and remedies of the holder hereof
for default hereunder or under any of the instruments referred
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to herein shall be cumulative to the greatest extent permitted by law. Time
shall be of the essence in the payment of all installments of interest and
principal on this Note and the performance of the Maker's other obligations
hereunder.
If an Event of Default shall occur under this Note or the Loan
Agreement, and this Note is placed in the hands of an attorney for collection,
or is collected through any court, including any bankruptcy court, the Maker
promises to pay to the holder hereof its attorneys' fees and costs incurred in
collecting or attempting to collect or securing or attempting to secure this
Note or enforcing its rights in any collateral securing this Note, provided the
same is legally allowed by the laws of the Commonwealth of Kentucky or any other
state or country where the subject collateral or any part thereof is situated.
The Maker may prepay the outstanding principal of this Note without
penalty in whole or in minimum increments of $10,000.
The Maker hereby agrees that all prepayments under this Note (whether
voluntary, involuntary or mandatory, and from whatever source derived) shall be
applied, in such order as the Lender shall determine in its sole discretion, to
unpaid fees, costs or expenses of the Maker under this Note, to accrued and
unpaid interest on this Note and to the outstanding principal balance of this
Note, in inverse order of maturity.
This Note has been delivered in, shall be performed in, governed by and
construed in accordance with the laws of, the Commonwealth of Kentucky.
Any legal action, suit or proceeding involving this Note shall be
subject to the provisions of Sections 11(e), (f), (g) and (h) of the Loan
Agreement.
The Maker hereby waives presentment, demand, notice of dishonor,
protest, notice of protest and nonpayment, and further waives all exemptions to
which it may now or hereafter be entitled under the laws of this or any other
state or of the United States or any foreign country,
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and further agrees that the holder hereof shall have the right without
notice, to deal in any way, at any time with any party, and to grant to any
party any extension of time for payment of this Note or any other indulgence
or forbearance whatsoever, and may release any security for the payment of
this Note and/or modify the terms of any of the instruments referred to
herein or otherwise securing or pertaining to this Note, and may release any
guarantor of this Note from liability for payment hereof, in every instance
without the consent of the Maker and without in any way affecting the
liability of any Maker, surety, guarantor, endorser, accommodation party, or
other party to this Note, and without waiving any rights the holder of this
Note may have hereunder or by virtue of the law of this or any other state or
of the United States or any foreign country.
IN WITNESS WHEREOF, the Maker has caused its authorized representative
to execute and deliver this Note as of the date first written above.
BIBP COMMODITIES, INC.
By: /s/ Patrick W. Gaunce
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Patrick W. Gaunce
President and Director
(the "Maker")