EXHIBIT 10.2
NOTE
$125,000,000 September 29, 2004
FOR VALUE RECEIVED, the undersigned, The Bombay Company, Inc., a
Delaware corporation ("Parent"), each of Parent's Subsidiaries identified on
the signature pages hereof (each Subsidiary, together with Parent, individually
a "Borrower" and collectively the "Borrowers"), hereby promises to pay to the
order of XXXXX FARGO RETAIL FINANCE, LLC ("Lender") at the Agent's (as defined
below) office at Xxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx, 02108;
(a) Prior to or on the Maturity Date the principal amount of ONE
HUNDRED TWENTY FIVE MILLION DOLLARS ($125,000,000) or, if less, the aggregate
unpaid principal amount of Advances made by the Lender to the Borrowers
pursuant to that certain Loan and Security Agreement, dated as of September 29,
2004 (as amended, amended and restated or otherwise modified and in effect from
time to time, the "Loan Agreement"), among the Borrowers, Lender and the other
financial institutions from time to time party thereto (collectively, the
"Lenders") and Xxxxx Fargo Retail Finance, LLC, as agent for the Lenders (the
"Agent");
(b) The principal outstanding hereunder from time to time at the times
provided in the Loan Agreement; and
(c) Interest on the principal balance hereof from time to time
outstanding from the date hereof through and including the Maturity Date (as
defined in the Loan Agreement) at the times and at the rate provided in the
Loan Agreement.
All capitalized terms used in this Note and not otherwise defined herein
shall have the same meanings herein as in the Loan Agreement. This Note
evidences borrowings under and has been issued by the Borrowers in accordance
with the terms of the Loan Agreement. The Lender and any holder hereof is
entitled to the benefits of the Loan Agreement and the other Loan Documents,
and may enforce the agreements of the Borrowers contained therein, and any
holder hereof may exercise the respective remedies provided for thereby or
otherwise available in respect thereof, all in accordance with the respective
terms thereof.
The Borrowers irrevocably authorize the Lender to make or cause to be
made, at or about the time of each Advance or at the time of receipt of any
payment of principal of this Note, an appropriate notation on the grid attached
to this Note, or the continuation of such grid, or any other similar record,
including computer records, reflecting the making of such Advances or (as the
case may be) the receipt of such payment. The outstanding amount of the
Advances set forth on the grid attached to this Note, or the continuation of
such grid, or any other similar record, including computer records, maintained
by the Lender with respect to any Advances shall be prima facie evidence of the
principal amount thereof owing and unpaid to the Lender, but the failure to
record, or any error in so recording, any such amount on any such grid,
continuation or other record shall not limit or otherwise affect the obligation
of the Lender hereunder or under the Loan Agreement to make payments of
principal of and interest on this Note when due.
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The Borrowers have the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Note on the terms and conditions specified in the Loan Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Loan Agreement.
No delay or omission on the part of the Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of
any other rights of the Lender or such holder, nor shall any delay, omission or
waiver on any one occasion be deemed a bar or waiver of the same or any other
right on any further occasion.
The Borrowers and every endorser and guarantor of this Note or the
obligation represented hereby waive presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWERS HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW OTHER
THAN GENERAL OBLIGATIONS LAW {section}5-1401 AND {section}5-1402). THE
BORROWERS AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS NOTE MAY BE BROUGHT
IN ANY FEDERAL COURT IN THE STATE OF NEW YORK AND THE CONSENT TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH
SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN
{section}12 OF THE LOAN AGREEMENT. THE BORROWERS HEREBY WAIVE ANY OBJECTION
THAT THEY MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH
COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned has caused this Note to be signed in
its corporate name by its duly authorized officer as of the day and year first
above written.
THE BOMBAY COMPANY, INC.
By: /S/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: SVP, CFO & Treasurer
BBA HOLDINGS, INC.
By: /S/ XXXXXXX X. XXXXXXX
Name: Xxxxxxx X. Xxxxxxx
Title: President
XXXXXX STREET TRADING COMPANY
By: /S/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BOMBAY INTERNATIONAL, INC.
By: /S/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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Date Amount of Amount of Principal Balance of Principal Notation Made
Advance Paid or Prepaid Unpaid By:
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