EXHIBIT 10.1
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TERM LOAN NOTE XXXXX FARGO RETAIL FINANCE II, LLC
$3,000,000
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Boston, Massachusetts Date: August 31, 2005
FOR VALUE RECEIVED, the undersigned Big Dog USA, Inc. and The
Walking Company (collectively, the "Borrowers"), jointly and severally
promise to pay to the order of XXXXX FARGO RETAIL FINANCE II, LLC, a
Delaware limited liability company with its principal office at Xxx Xxxxxx
Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter, with any subsequent
holder, the "Agent") the principal sum of THREE MILLION and 00/100 DOLLARS
($3,000,000.00) in lawful money of the United States of America and in
immediately available funds, in forty-four (44) consecutive monthly
installments of principal payments in the amount of FIFTY-FIVE THOUSAND
FIVE HUNDRED FIFTY-FIVE and 00/100 DOLLARS ($55,555.00), on the first day
of each month, with the such payment due and payable on the first day
March, 2006, and any unpaid balance due and payable on the Maturity Date
(as defined in the Loan Agreement, defined herein) (the "Term Loan
Obligations"). Interest shall accrue and be due and payable on the unpaid
principal balance of the Term Loan Obligations in the manner set forth in
the Loan Agreement (defined below).
This is a "Term Note" evidencing the Term Loan to which reference
is made in that certain Amended, Restated and Consolidated Loan and
Security Agreement, dated as of July 7, 2005, by and among the Borrowers,
Big Dog Holdings USA, Inc., as Guarantor, the lenders party thereto (the
"Lenders"), and Xxxxx Fargo Retail Finance II, LLC, as Agent for the
Lenders (the Agent and the Lenders, collectively the "Lender Group") (as
such may be amended hereafter, the "Loan Agreement"), and is subject to all
terms and provisions thereof. Capitalized terms, unless defined herein,
have the same meaning as in the Loan Agreement. The principal of, and
interest on, this Term Note shall be payable as provided in the Loan
Agreement and shall be subject to acceleration as provided therein.
The Agent's books and records concerning the Term Loan, the
accrual of interest thereon, and the repayment of such loan, shall be prima
facie evidence of the indebtedness to the Lenders hereunder.
No delay or omission by the Lenders or the Agent in exercising or
enforcing any of its powers, rights, privileges, remedies, or discretions
hereunder shall operate as a waiver thereof on that occasion nor on any
other occasion. No waiver of any default hereunder shall operate as a
waiver of any other default hereunder, nor as a continuing waiver.
The Borrowers, and each endorser and guarantor of this Term Note,
each respectively waive presentment, demand, notice, protest, notice of
intention to accelerate, and notice of acceleration and also waive any
delay on the part of the holder hereof. Each assents to any extension or
other indulgence (including, without limitation, the release or
substitution of collateral) permitted by the Agent with respect to this
Term Note and/or any collateral given to secure this Term Note or any
extension or other indulgence with respect to any other liability or any
collateral given to secure any other liability of the Borrowers or any
other person obligated on account of this Term Note.
This Term Note shall be binding upon the Borrowers, and each
endorser and guarantor hereof, and upon their respective heirs, successors,
assigns, and representatives, and shall inure to the benefit of the Lenders
and its successors, endorsees, and assigns.
The liabilities of the Borrowers, and of any endorser or guarantor
of this Term Note, are joint and several; provided, however, the release by
Agent of any one or more such persons, endorsers or guarantors shall not
release any other person obligated on account of this Term Note. Each
reference in this Term Note to the Borrowers, any endorser, and any
guarantor, is to such person individually and also to all such persons
jointly. No person obligated on account of this Term Note may seek
contribution from any other person also obligated unless and until all
liabilities, obligations and indebtedness to the Lenders of the person from
whom contribution is sought have been satisfied in full.
The Borrowers and each endorser and guarantor hereof each
authorize Agent to complete this Term Note if delivered incomplete in any
respect.
This Term Note is delivered to the Agent, for the benefit of the
Lender Group, at the principal offices of the Agent in Boston,
Massachusetts, shall be governed by the laws of the Commonwealth of
Massachusetts, and shall take effect as a sealed instrument.
The Borrowers make the following waiver knowingly, voluntarily,
and intentionally, and understand that the Lenders, in the establishment
and maintenance of the Lenders' relationship with the Borrowers
contemplated by this Term Note, are relying thereon. THE BORROWERS, TO THE
EXTENT ENTITLED THERETO, WAIVE ANY PRESENT OR FUTURE RIGHT OF THE
BORROWERS, OR OF ANY GUARANTOR OR ENDORSER OF THE BORROWERS OR OF ANY OTHER
PERSON LIABLE TO THE LENDER ON ACCOUNT OF OR IN RESPECT TO THE TERM LOAN
OBLIGATIONS, TO A TRIAL BY JURY IN ANY CASE OR CONTROVERSY IN WHICH THE
ADMINISTRATIVE AGENT OR LENDER IS OR BECOMES A PARTY (WHETHER SUCH CASE OR
CONTROVERSY IS INITIATED BY OR AGAINST THE LENDERS OR AGENT OR IN WHICH THE
LENDERS OR AGENT ARE JOINED AS PARTY LITIGANTS), WHICH CASE OR CONTROVERSY
ARISES OUT OF, OR IS IN RESPECT TO, ANY RELATIONSHIP AMONGST OR BETWEEN THE
BORROWERS, ANY SUCH PERSON, AND THE LENDERS.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Executed under seal as of this 31st day of August, 2005.
THE WALKING COMPANY
(a "Borrower")
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By:_______________________
Title:____________________
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BIG DOG USA, INC.
(a "Borrower")
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By:_______________________
Title:____________________
