Secured Promissory Note - Build-A-Bear Workshop Inc. and Maxine Clark
SECURED PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned, Maxine Clark
("Borrower"), promises to pay to Build-A-Bear Workshop, Inc. , a Delaware
corporation ("Company"), or its order, the principal amount of One Million Two
Hundred Thirty Six Thousand Six Hundred Sixty Seven and 50/100 Dollars
($1,236,667.50) with interest from the date hereof on the unpaid principal
balance under this Note at the lower of (i) the rate equal to the semi-annual
applicable federal rate (as defined in the Internal Revenue Code of 1986, as
amended), and (ii) the highest rate per annum from time to time permitted by
applicable law. The principal amount of this Note shall be due and payable on
the earlier to occur of the following dates (the "Maturity Date"): (1) April 3,
2005 ; (2) the date on which the indebtedness under this Note is accelerated as
provided for under this Note or the Pledge Agreement (as defined below); (3) the
ninetieth day following the date of Borrower's termination of employment with
Company (or one year following the date of Borrower's termination of employment
if disabled); or (4) the first anniversary following the date of Borrower's
death while she's employed by the Company. All accrued and unpaid interest under
this Note shall be due and payable, concurrently with principal. On the Maturity
Date the entire remaining unpaid principal balance of this Note, together with
any and all accrued and unpaid interest and any and all costs and expenses
provided for under this Note and the Pledge Agreement, shall be due and payable.
All payments under this Note shall be made to Company or its
order, in lawful money of the United States of America and in immediately
available funds and delivered to Company by wire transfer to Company's account
as set forth in written instructions delivered by Company to Borrower prior to
the Maturity Date or at the offices of Company at its then principal place of
business or at such other place as Company or any holder hereof shall designate
in writing for such purpose from time to time. If a payment under this Note
otherwise would become due and payable on a Saturday, Sunday or legal holiday,
the due date thereof shall be extended to the next day which is not a Saturday,
Sunday or legal holiday, and interest shall be payable thereon during such
extension. All amounts due under this Note and the Pledge Agreement shall be
payable without defense, set off or counterclaim.
Each payment under this Note shall be applied in the following
order: (i) to the payment of costs and expenses provided for under this Note or
the Pledge Agreement; (ii) to the payment of accrued and unpaid interest; and
(iii) to the payment of outstanding principal. Company and each holder hereof
shall have the continuing and exclusive right to apply or reverse and reapply
any and all payments under this Note.
This Note may be prepaid in whole or in part at any time,
without penalty except that interest shall be paid to the date of payment on the
principal amount prepaid.
This Note shall be not assignable by either of Company or
Borrower without the written consent of the other.
Upon the occurrence of a default under this Note or the Pledge
Agreement, including, without limitation, failure to make any principal or
interest payment by the stated
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maturity (whether by acceleration, notice of prepayment or otherwise) for such
payment, interest shall thereafter accrue on the entire unpaid principal balance
under this Note, including, without limitation, any delinquent interest which
has been added to the principal amount due under this Note pursuant to the terms
hereof, at the rate set forth herein plus [5 PERCENT] per annum (on the basis of
a 360-day year and the actual number of days elapsed) or, if lower, the maximum
rate from time to time permitted by applicable law. In addition, upon the
occurrence of a default under this Note or the Pledge Agreement, the holder of
this Note may, at its option, without notice to or demand upon Borrower or any
other party, declare immediately due and payable the entire principal balance
hereof together with all accrued and unpaid interest thereon, plus any other
amounts then owing pursuant to this Note or the Pledge Agreement, whereupon the
same shall be immediately due and payable. On each anniversary of the date of
any default under this Note and while such default is continuing, all interest
which has become payable and is then delinquent shall, without curing the
default under this Note by reason of such delinquency, be added to the principal
amount due under this Note, and shall thereafter bear interest at the same rate
as is applicable to principal, with interest on overdue interest to bear
interest, in each case to the fullest extent permitted by applicable law, both
before and after default, maturity, foreclosure, judgment and the filing of any
petition in a bankruptcy proceeding. In no event shall interest be charged under
this Note which would violate any applicable law.
This Note is secured under that certain Repayment and Stock
Pledge Agreement, dated as of even date herewith, by and between Borrower and
Company (as amended from time to time, the "Pledge Agreement"). Reference is
hereby made to the Pledge Agreement for a description of the nature and extent
of the security for this Note and the rights with respect to such security of
the holder of this Note. Nothing herein shall be deemed to limit the rights of
Company under this Note or the Pledge Agreement, all of which rights and
remedies are cumulative.
No waiver or modification of any of the terms of this Note
shall be valid or binding unless set forth in a writing specifically referring
to this Note and signed by a dully authorized officer of Company or any holder
of this Note, and then only to the extent specifically set forth therein.
If any default occurs in any payment due under this Note,
Borrower and all guarantors and endorsers hereof, and their successors and
assigns, promise to pay all costs and expenses, including attorney's fees,
incurred by each holder hereof in collecting or attempting to collect the
indebtedness under this Note, whether or not any action or proceeding is
commenced. None of the provisions hereof and none of the holder's rights or
remedies under this Note on account of any past or future defaults shall be
deemed to have been waived by the holder's acceptance of any past due
installments or by any indulgence granted by the holder to Borrower.
Borrower and all guarantors and endorsers hereof, and their
successors and assigns, hereby waive presentment, demand, diligence, protest and
notice of every kind (except such notices as may be required under the Pledge
Agreement), and agree that, subject to the limitations set forth in the Pledge
Agreement, they shall remain liable for amounts due under this Note
notwithstanding any extension of time or change in the terms of payment of this
Note
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granted by any holder hereof, any change, alteration or release of any property
now or hereinafter securing the payment hereof or any delay or failure by the
holder hereof to exercise any rights under this Note or the Pledge Agreement.
Borrower and all guarantors and endorsers hereof, and their successors and
assigns, hereby waive the right to plead any and all statutes of limitations as
a defense to a demand under this Note to the fullest extent permitted by law.
This Note shall inure to the benefit of Company, its
successors and assigns and shall bind the heirs, executors, administrators,
successors and assigns of Borrower. Each reference herein to powers or rights of
Company shall also be deemed a reference to the same power or right of such
assignee, to the extent of the interest assigned to them.
In the event any one or more provisions of this Note shall be
held to be illegal, invalid or otherwise unenforceable, the same shall not
affect any other provision of this Note and the remaining provisions of this
Note shall remain in full force and effect.
This Note shall be governed by and construed in accordance
with the laws of the State of Missouri, without giving affect to the principles
thereof relating to conflicts of law; provided, that Company and each holder
hereof reserves any and all rights it may have under federal law, including
without limitation those relating to the charging of interest.
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IN WITNESS WHEREOF, Borrower has caused this Note to be duly
executed the day and year first above written.
/s/ Maxine Clark
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Maxine Clark
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