Exhibit 10.2
SECOND AMENDED AND RESTATED REVOLVING CREDIT NOTE
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$15,000,000
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Cincinnati, Ohio
Dated as of May 31, 2005
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FOR VALUE RECEIVED, BUILD-A-BEAR
WORKSHOP, INC. (“BABWI”), successor by merger to
BUILD-A-BEAR WORKSHOP, LLC, SHIRTS ILLUSTRATED, LLC
(“SHIRTS”), 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") promises
to pay to the order of U.S. BANK NATIONAL ASSOCIATION,
formerly known as FIRSTAR 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 FIFTEEN MILLION
DOLLARS ("Total Facility") or such lesser amount as may be
outstanding hereunder, together with interest from the date of
disbursement of funds hereunder at the interest rate per annum set
forth below.
Capitalized terms used in this Note
and not otherwise defined herein will have the same meanings given
such terms in the Third Amended and Restated Loan Agreement of even
date herewith (the “Loan Agreement”) between Borrower
and Lender. This Note amends and restates the First Amended and
Restated Revolving Credit Note issued by Borrower to Lender dated
as of February 13, 2002.
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1.
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Rate of
Interest . Interest on each advance (each, a "Prime Rate
Loan") hereunder shall accrue at the prime rate announced by Lender
from time to time, as and when such rate changes, minus
0.50% per annum, subject to the applicability of the Default Rate.
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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2.
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Loan Documents
. This Note is issued in connection with the Loan
Agreement. 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 monthly on the last day of each calendar month, and at
maturity.
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3.2
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The entire outstanding principal
balance of all Prime Rate Loans, all accrued and unpaid interest
thereon, and all other amounts due under the Loan Documents will be
due and payable in full on September 30, 2007 (the "Maturity
Date").
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3.3
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Borrower may prepay all or any
portion of this Note at any time without premium or penalty.
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, 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 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
Maximum Amount.
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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). 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 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. 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 except for those representations and warranties which
were made specific to the effective date of the Loan
Agreement.
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5.3
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Lender hereby is authorized, at any
time and from time to time, to make an advance under this Note for
the payment on behalf of Borrower of any principal, interest or
other sums due under this Note or any of the other Loan Documents,
and each such advance will constitute a Prime Rate Loan hereunder.
Notwithstanding the foregoing, Lender is not obligated to make any
such advance.
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5.4
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Each request for an advance under
this Note will be subject to all of the terms and conditions of
this Note and the Loan Agreement. Without limiting the generality
of the foregoing, Lender will have no duty to make any advance
hereunder if insufficient funds remain available pursuant to the
Total Facility or any other maximum amount limitations set forth
herein or in any of the Loan Documents.
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6.
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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 p
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