EXHIBIT 10.14
FIRST AMENDED AND RESTATED REVOLVING CREDIT NOTE
$15,000,000 Cincinnati, Ohio
Dated as of February _, 2002
FOR VALUE RECEIVED BUILD-A-BEAR WORKSHOP, INC., successor by merger to
BUILD-A-BEAR WORKSHOP, LLC, and SHIRTS ILLUSTRATED, LLC, jointly and severally
(individually and collectively, the "Borrower") promises to pay to the order of
U.S. BANK NATIONAL ASSOCIATION, formerly known as FIRSTAR BANK, NATIONAL
ASSOCIATION ("Lender"), at its offices located at 425 Walnut Street, Cincinnati,
Ohio 45202, or at such other location as Lender may designate from time to time,
the principal sum of FIFTEEN MILLION DOLLARS (the "Total Facility") or such
lesser amount as may be advanced and outstanding hereunder, together with
interest thereon as provided below from the date of disbursement thereof until
paid, all in lawful money of the United States of America and in immediately
available funds.
1. RATE OF INTEREST. The outstanding principal balance of this Note will
bear interest at a rate per annum of the Prime Rate minus 0.5% per
annum, subject to the applicability of the Default Rate. All interest
calculations under this Note will be made based on a year of 360 days
for the actual number of days in each interest period. In no event will
the rate of interest hereunder exceed 25% per annum, or the equivalent
rate for a shorter or longer period.
2. SECURITY. This Note amends and restates the Revolving Credit Note of
Borrower to Lender dated as of June 1, 2001. This Note is issued in
connection with the Second Amended and Restated Loan Agreement between
Borrower and Lender of even date herewith (the "Loan Agreement") and is
secured by the property covered by the Security Documents as that term
is defined in the Loan Agreement. All references to the Loan Agreement
and the Security Documents will include all amendments thereto as made
from time to time. The terms, covenants, conditions, stipulations and
agreements contained in the Loan Agreement hereby are incorporated
herein by reference. Capitalized terms used in this Note and not
otherwise defined herein will have the meanings given such terms in the
Loan Agreement.
3. PAYMENTS. This Note will be payable as follows: Accrued interest will
be due and payable monthly, commencing on March 1, 2002 and on the
first day of each month thereafter until May 31, 2003, on which date
the entire outstanding principal balance hereunder and all accrued and
unpaid interest will be due and payable (the "Maturity Date").
4. LATE PAYMENTS. If Borrower fails to make any payment of principal,
interest or other amount coming due pursuant to the provisions of this
Note within 5 calendar days of the date due and payable, Borrower also
shall pay to Lender a late charge equal to five percent (5.00%) of the
amount of such payment (but not less than $50.00) (the "Late Charge").
5. REVOLVING NATURE OF NOTE AND RECORDATION OF ADVANCES. Borrower may
borrow, repay, and reborrow under this Note subject to the terms,
conditions, and limits set forth herein and in the Loan Agreement,
including without limitation, the Maximum Amount restriction set forth
therein. Lender is authorized to record in its books and records the
date and amount of each advance and payment hereunder, and other
information related thereto, which books and records will constitute
prima facie evidence of the accuracy of the information so recorded;
provided, however, that failure of Lender to record, or any error in
recording, any such information will not relieve Borrower of any of its
obligations under this Note or any of the other Security Documents.
Notwithstanding the foregoing, Lender will not make any Advance under
this Note which would cause the outstanding principal balance under
this Note to exceed the Maximum Amount.
6. ADVANCES.
6.1 Any request by Borrower for an advance hereunder must be made
(i) in writing received by Lender prior to 3:00 p.m., Eastern
Standard Time, on the proposed borrowing date or (ii) by
telephonic request made prior to 3:00 p.m., Eastern Standard
Time, on the proposed borrowing date. Each proposed borrowing
date must be a Business Day prior to the Maturity Date. Upon
the making of any request for an advance, Borrower will be
deemed to have made all of the representations and warranties
set forth in the Loan Agreement on and as of the date of such
request.
6.2 Each request for an advance, whether telephonic or written,
will be binding upon and irrevocable by Borrower. Lender will
have no liability in acting upon any request that Lender
believes in good faith to have been given on behalf of
Borrower and will have no duty to verify the authenticity of
the signature(s) appearing on any written request and no duty
to verify the identity of any person making any telephonic
request. Any disbursement of funds pursuant to a telephonic or
written request for an advance under this Note will be subject
to all of the terms and conditions of the Loan Agreement.
6.3 Lender hereby is authorized at any time and from time to time,
in its discretion, to make an advance under this Note for the
payment on behalf of Borrower of any interest, principal or
other sums due under any of the Obligations, and each such
advance will constitute an advance hereunder and part of the
Obligations. Notwithstanding the foregoing, Lender is not
obligated to take such action.
7. PREPAYMENT AND APPLICATION OF PAYMENTS. Borrower may prepay all or any
portion of this Note at any time without premium or penalty. Payments
received will be applied in the following order: (i) to repayment of
any amounts owed to Lender for charges, fees and expenses (including
reasonable Attorneys' Fees), (ii) to accrued interest, and (iii) to
principal. Additional payments may be made under this Note at any time
without premium or penalty but each such payment will be applied in the
foregoing order.
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8. EVENTS OF DEFAULT. Immediately and automatically upon the filing by or
against Borrower or any Guarantor of a petition in bankruptcy, for a
reorganization, arrangement or debt adjustment, or for a receiver,
trustee, or similar creditors' representative for its, his or her
property or any part thereof, or of any other proceeding under any
federal or state insolvency or similar law (and if such petition or
proceeding is an involuntary petition or proceeding filed against
Borrower or such Guarantor without his, her or its acquiescence therein
or thereto at any time, the same is not promptly contested and, within
60 days of the filing of such involuntary petition or proceeding,
dismissed or discharged), or the making of any general assignment by
Borrower or any Guarantor for the benefit of creditors, or Borrower or
any Guarantor dissolves or is the subject of any dissolution, winding
up or liquidation or, at the option of Lender, immediately upon the
occurrence of any other Event of Default, in any case without demand or
notice of any kind (which are hereby expressly waived): (i) the
outstanding principal balance hereunder, together with all accrued and
unpaid interest thereon, and any additional amounts secured by the
Security Documents, will be accelerated and become immediately due and
payable, (ii) Borrower will pay to Lender all reasonable costs and
expenses (including but not limited to reasonable Attorneys' Fees)
incurred by Lender in connection with Lender's efforts to collect the
indebtedness evidenced hereby, and (iii) Lender may exercise from time
to time any of the rights and remedies available to Lender under the
Security Documents or applicable law. Upon and after the occurrence of
any Event of Default or the maturity of this Note (by acceleration or
otherwise), the principal balance under this Note, together with any
arrearage of interest, will bear interest at the Default Rate until
paid in full, whether before or after judgment and Lender will have no
further obligation to make advances under this Note or any of the
Security Documents. Borrower, all other makers, co-signers and
indorsers waive presentment, demand, protest, and notice of demand,
protest, non-payment and dishonor. Borrower also waives all defenses
based on suretyship or impairment of collateral.
9. MISCELLANEOUS.
9.1 Both the Late Charge and the Default Rate are imposed as
liquidated damages for the purpose of defraying Lender's
expenses incident to the handling of delinquent payments, but
are in addition to, and not in lieu of, Lender's exercise of
any rights and remedies hereunder, under the other Security
Documents or under applicable law, and any fees and expenses
of any agents or any reasonable fees and expenses of any
attorneys which Lender may employ. In addition, the Default
Rate reflects the increased credit risk to Lender of carrying
a loan that is in default. Borrower agrees that the Late
Charge and Default Rate are reasonable forecasts of just
compensation for anticipated and actual harm incurred by
Lender, and that the actual harm incurred by Lender cannot be
estimated with certainty and without difficulty.
9.2 Nothing contained in this Note regarding late charges or the
Default Rate will be construed in any way to extend the due
date of any payment or waive any payment default, and each
such right is in addition to, and not in lieu of, the other
and any other rights and remedies of Lender hereunder, under
any of the Security
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Documents or under applicable law (including, without
limitation, the right to interest, reasonable Attorneys' Fees
and other expenses).
9.3 If this Note is executed by more than one person or entity as
"Borrower", the obligations of such parties hereunder will be
joint and several and, unless otherwise specified herein, each
reference to "Borrower" will mean each of such parties
individually and all of such parties collectively.
9.4 This Note will bind Borrower and the heirs, executors,
administrators, successors and assigns of Borrower, and the
benefits hereof will inure to the benefit of Lender and its
successors and assigns. All references herein to the
"Borrower" and "Lender" will include the respective heirs,
administrators, successors and assigns thereof; provided,
however, that Borrower may not assign this Note in whole or in
part without the prior written consent of Lender and Lender at
any time may assign this Note in whole or in part (but no
assignment by the Lender of less than all of this Note will
operate to relieve Borrower from any duty to Lender with
respect to the unassigned portion of this Note).
9.5 If any provision of this Note is prohibited by or invalid
under applicable law, such provision will be ineffective only
to the extent of such prohibition or invalidity without
invalidating the remainder of such provision and without
invalidating any other provision in this Note; provided,
however, that if the provision that is the subject of such
prohibition or invalidity pertains to repayment of this Note,
then, at the option of Lender, all of the obligations
hereunder will become immediately due and payable.
9.6 Without limiting the generality of the foregoing, if from any
circumstances whatsoever the fulfillment of any provision of
this Note involves transcending the limit of validity
prescribed by any applicable usury statute or any other
applicable law with regard to obligations of like character
and amount, then the obligation to be fulfilled will be
reduced to the limit of such validity as provided in such
statute or law, so that in no event will any exaction of
interest be possible under this Note in excess of the limit of
such validity and the right to demand any such excess is
hereby expressly waived by Lender. As used in this paragraph,
"applicable usury statute" and "applicable law" mean such
statute and law in effect on the date hereof, subject to any
change therein that result in a higher permissible rate of
interest.
9.7 No delay or failure on the part of Lender to exercise any
right, remedy or power hereunder, under any of the other
Security Documents or under applicable law will impair or
waive any such right, remedy or power (or any other right,
remedy or power), be considered a waiver of or an acquiescence
in any breach, Default or Event of Default or affect any other
or subsequent breach, Default or Event of Default of the same
or a different nature. No waiver of any breach, Default or
Event of Default, nor any modification, waiver, discharge or
termination of any provision of this Note, nor consent to any
departure by Borrower therefrom, will
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be established by conduct, custom or course of dealing; and no
modification, waiver, discharge, termination or consent will
in any event be effective unless the same is in writing,
signed by Lender and specifically refers to this Note, and
then such modification, waiver, discharge or termination or
consent will be effective only in the specific instance and
for the specific purpose for which given. No notice to or
demand on Borrower in any case will entitle Borrower to any
other or further notice or demand in the same or any similar
or other circumstance.
9.8 No single or partial exercise of any right or remedy by Lender
will preclude any other or further exercise thereof or the
exercise of any other right or remedy. All remedies hereunder,
under any of the other Security Documents or now or hereafter
existing at law or in equity are cumulative and none of them
will be exclusive of the others or of any other right or
remedy. All such rights and remedies may be exercised
separately, successively, concurrently, independently or
cumulatively from time to time and as often and in such order
as Lender may deem appropriate.
9.9 If at any time all or any part of any payment or transfer of
any kind received by Lender with respect to all or any part of
this Note is repaid, set aside or invalidated by reason of any
judgment, decree or order of any court or administrative body,
or by reason of any agreement, settlement or compromise of any
claim made at any time with respect to the repayment,
recovery, setting aside or invalidation of all or any part of
such payment or transfer, Borrower's obligations under this
Note will continue (and/or be reinstated) and Borrower will be
and remain liable, and will indemnify, defend and hold
harmless Lender for, the amount or amounts so repaid,
recovered, set aside or invalidated and all other claims,
demands, liabilities, judgments, losses, damages, costs and
expenses incurred in connection therewith. The provisions of
this Section will be and remain effective notwithstanding any
contrary action which may have been taken by Borrower in
reliance upon such payment or transfer, and any such contrary
action so taken will be without prejudice to Lender's rights
hereunder and will be deemed to have been conditioned upon
such payment or transfer having become final and irrevocable.
The provisions of this Section will survive any termination,
cancellation or discharge of this Note.
9.10 Time is of the essence in the performance of this Note.
9.11 This Note has been delivered and accepted at and will be
deemed to have been made at Cincinnati, Ohio and will be
interpreted and the rights and liabilities of the parties
hereto determined in accordance with the laws of the State of
Ohio, without regard to conflicts of law principles.
9.12 BORROWER HEREBY IRREVOCABLY AGREES AND SUBMITS TO THE
EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
WITHIN HAMILTON COUNTY, OHIO, OR, AT THE OPTION OF LENDER IN
ITS SOLE DISCRETION, OF ANY STATE OR FEDERAL COURT(S) LOCATED
WITHIN ANY OTHER COUNTY, STATE OR JURISDICTION IN WHICH LENDER
AT ANY TIME OR
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FROM TIME TO TIME CHOOSES IN ITS SOLE DISCRETION TO BRING AN
ACTION OR OTHERWISE EXERCISE A RIGHT OR REMEDY, AND BORROWER
WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY
OBJECTION TO VENUE OF ANY SUCH ACTION OR PROCEEDING. BORROWER
HEREBY IRREVOCABLY CONSENTS THAT ALL SERVICE OF PROCESS BE
MADE BY CERTIFIED MAIL DIRECTED TO BORROWER AT ITS ADDRESS SET
FORTH IN THE LOAN AGREEMENT FOR NOTICES AND SERVICE SO MADE
WILL BE DEEMED TO BE COMPLETED THE EARLIER OF BORROWER'S
ACTUAL RECEIPT THEREOF OR FIVE (5) BUSINESS DAYS AFTER THE
SAME HAS BEEN DEPOSITED IN U.S. MAILS, POSTAGE PREPAID.
NOTHING CONTAINED HEREIN WILL PREVENT LENDER FROM SERVING
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
9.13 BORROWER AND LENDER EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN
ANY ACTION OR PROCEEDING RELATING TO THIS NOTE, THE SECURITY
DOCUMENTS, THE COLLATERAL DESCRIBED THEREIN, OR ANY ACTUAL OR
PROPOSED TRANSACTION OR OTHER MATTER CONTEMPLATED IN OR
RELATING TO ANY OF THE FOREGOING.
BUILD-A-BEAR WORKSHOP, INC.
BY: /s/ Maxine Clark
---------------------------------
PRINT NAME: Maxine Clark
TITLE: President
SHIRTS ILLUSTRATED, LLC
BY: Build-A-Bear Workshop, Inc.
Its Managing Member
BY: /s/ Maxine Clark
---------------------------------
PRINT NAME: Maxine Clark
TITLE: Manager
STATE OF__________)
) SS.
COUNTY OF_________)
The foregoing instrument was acknowledged before me this February, 2002
by Maxine Clark, the duly authorized Officer of BUILD-A-BEAR WORKSHOP, INC., a
Delaware corporation, on behalf of the corporation.
/s/ Marie A. Powers
-------------------------------------
Notary Public
My commission expires: May 24, 2003
MARIE A. POWERS
NOTARY PUBLIC - NOTARY SEAL
STATE OF MISSOURI
ST. CHARLES COUNTY
MY COMMISSION EXPIRES: MAY 24, 2003
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STATE OF___________)
) SS.
COUNTY OF__________)
The foregoing instrument was acknowledged before me this February, 2002
by Maxine Clark, the duly authorized Officer of BUILD-A-BEAR WORKSHOP, INC., a
Delaware corporation, the managing member of SHIRTS ILLUSTRATED, LLC, a Missouri
limited liability company, on behalf of the company.
/s/ Marie A. Powers
-------------------------------------
Notary Public
My commission expires: May 24, 2003
MARIE A. POWERS
NOTARY PUBLIC - NOTARY SEAL
STATE OF MISSOURI
ST. CHARLES COUNTY
MY COMMISSION EXPIRES: MAY 24, 2003
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