Exhibit 10.2
FOURTH AMENDED AND RESTATED
REVOLVING CREDIT NOTE
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$50,000,000
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Cincinnati, Ohio
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Dated as of August 11,
2008
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FOR VALUE RECEIVED, BUILD-A-BEAR
WORKSHOP, INC. (“BABWI”), successor by merger to
BUILD-A-BEAR WORKSHOP, LLC, BUILD-A-BEAR WORKSHOP FRANCHISE
HOLDINGS, INC. (“BABWF”), BUILD-A-BEAR
ENTERTAINMENT, LLC (“BABE”), and BUILD-A-BEAR
RETAIL MANAGEMENT, INC. (“BABRM”), jointly and
severally (individually and collectively, the
“Borrower”) promise to pay to the order of U.S. BANK
NATIONAL ASSOCIATION (“Lender”), in lawful money of
the United States of America in immediately available funds at its
offices located at 425 Walnut Street, Cincinnati, Ohio 45202, the
principal sum of FIFTY MILLION DOLLARS or such lesser amount as may
be outstanding hereunder, together with interest from the date of
disbursement of funds hereunder at the interest rates per annum set
forth below and selected by Borrower from time to time.
Capitalized terms used in this Note
and not otherwise defined herein will have the same meanings given
such terms in the Fourth Amended and Restated Loan Agreement dated
as of the date hereof (as amended, restated or modified from time,
the “Loan Agreement”) between Borrower and Lender. This
Note amends and restates the Third Amended and Restated Revolving
Credit Note issued by Borrower to Lender dated as of June 30,
2006.
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1.
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Rates of
Interest . Interest on each advance hereunder shall accrue
at one of the following per annum rates selected by Borrower:
(i) upon notice to Lender, the prime rate announced by Lender
from time to time, as and when such rate changes, minus
1.00% per annum (a “Prime Rate Loan”); or
(ii) upon a minimum of two New York Banking Days prior notice,
the 1-, 2- or 3- month LIBOR rate quoted by Lender from Reuters
Screen LIBOR01 Page or any successor thereto (which shall be the
LIBOR rate in effect two New York Banking Days prior to
commencement of the advance, and which rate may be rounded up by
Lender to the nearest whole multiple of 1/16 of 1%) plus
1.30% per annum, adjusted for any reserve requirement and any
subsequent costs arising from a change in government regulation (a
“LIBOR Rate Loan”). The term “New York Banking
Day” means any day (other than a Saturday or Sunday) on which
commercial banks are open for business in New York, New York. The
term “Money Markets” refers to one or more wholesale
funding markets available to and selected by Lender, including
negotiable certificates of deposit, commercial paper, eurodollar
deposits, bank notes, federal funds, interest rate swaps or others.
Interest calculations under this Note will be computed on the basis
of 360 days per year for the actual number of days in each interest
period.
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In the event Borrower does not
timely select another interest rate option at least two New York
Banking Days before the end of the Loan Period for a LIBOR Rate
Loan, Lender may at any time after the end of the Loan Period
convert the LIBOR Rate Loan to a Prime Rate Loan, but until such
conversion, the funds advanced under the LIBOR Rate Loan shall
continue to accrue interest at the same rate as the interest rate
in effect for such LIBOR Rate Loan prior to the end of the Loan
Period. The term “Loan Period” means the period
commencing on the advance date of the applicable LIBOR Rate
Loan
and ending on the numerically
corresponding day 1-, 2- or 3- month thereafter matching the
interest rate term selected by Borrower; provided, however,
(a) if any Loan Period would otherwise end on a day which is
not a New York Banking Day, then the Loan Period shall end on the
next succeeding New York Banking Day unless the next succeeding New
York Banking Day falls in another calendar month, in which case the
Loan Period shall end on the immediately preceding New York Banking
Day; or (b) if any Loan Period begins on the last New York
Banking Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of
the Loan Period), then the Loan Period shall end on the last New
York Banking Day of the calendar month at the end of such Loan
Period.
No LIBOR Rate Loan may extend beyond
the maturity of this Note. In any event, if the Loan Period for a
LIBOR Rate Loan should happen to extend beyond the maturity of this
Note, such loan must be prepaid at the time this Note matures.
Lender’s internal records of applicable interest rates shall
be determinative in the absence of manifest error. Each LIBOR Rate
Loan shall be in a minimum principal amount of $500,000.
The aggregate number of loans in
effect at any one time may not exceed five (5) LIBOR Rate
Loans and one (1) Prime Rate Loan.
If a LIBOR Rate Loan is prepaid
prior to the end of the Loan Period, as defined above, for such
loan, whether voluntarily or because prepayment is required due to
this Note maturing or due to acceleration of this Note upon default
or otherwise, Borrower agrees to pay all of Lender’s costs,
expenses and Interest Differential (as determined by Lender)
incurred as a result of such prepayment. The term “Interest
Differential” shall mean that sum equal to the greater of
zero or the financial loss incurred by Lender resulting from
prepayment, calculated as the difference between the amount of
interest Lender would have earned (from like investments in the
Money Markets as of the first day of the LIBOR Rate Loan) had
prepayment not occurred and the interest Lender will actually earn
(from like investments in the Money Markets as of the date of
prepayment) as a result of the redeployment of funds from the
prepayment. Because of the short-term nature of this facility,
Borrower agrees that the Interest Differential shall not be
discounted to its present value. Any prepayment of a LIBOR Rate
Loan shall be in an amount equal to the remaining entire principal
balance of such loan.
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2.
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Loan
Documents . This
Note is issued in connection with the Loan Agreement and is secured
by the Collateral. All references to the Loan Agreement will
include all amendments thereto as made from time to time. The
terms, covenants, conditions, stipulations and agreements contained
in the Loan Agreement are hereby made a part hereof to the same
extent and effect as if they were fully set forth herein. This
Note, any Guarantee, the Loan Agreement, and all related loan and
security documents are referred to herein as the “Loan
Documents”.
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3.
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Payments
and Application of Payments .
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3.1
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Accrued
interest will be due and payable as follows:
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3.1.1
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with respect to
each Prime Rate Loan, monthly on the last day of each calendar
month, and at maturity; and
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- 2 -
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3.1.2
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with respect to
each LIBOR Rate Loan, on the last day of the Loan Period, and at
maturity.
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3.2
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The entire
outstanding principal balance, all accrued and unpaid interest
thereon, and all other amounts due under the Loan Documents will be
due and payable in full on December 31, 2009 (the
“Maturity Date”).
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3.3
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Borrower may
prepay all or any portion of Prime Rate Loans at any time without
penalty.
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3.4
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Payments
received will be applied in such order as Lender may
elect.
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4.
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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”).
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5.1
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Borrower may
borrow, repay, and reborrow under this Note subject to the terms,
conditions, and limits set forth herein and in the Loan Agreement.
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 Loan 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
Total Facility.
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5.2
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Any request by Borrower for a
Prime Rate Loan must be received by Lender not later than 3:00 p.m.
(Cincinnati time) on the proposed borrowing date (which must be a
Business Day). Any request by Borrower for a LIBOR Rate Loan must
be received by Lender not later than 11:00 a.m. (Cincinnati time)
on a day that is at least two (2) New York Banking Days prior
to the proposed borrowing date (which must be a Business Day). Each
request for an advance under this Note will be irrevocable by
Borrower. Lender will have no liability in acting upon any request
that Lender bel
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