SECOND AMENDED AND RESTATED NOTE
Exhibit
10 (b)
SECOND
AMENDED AND RESTATED NOTE
$65,000,000 August
31, 2006
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 SIXTY-FIVE
MILLION DOLLARS
($65,000,000) 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.
This
second amended and restated note (this “Note”)
constitutes the amendment and restatement in its entirety of the amended and
restated note, dated as of November 24, 2004, issued by the Borrowers in favor
of the Lender (the “Prior
Note”),
and
this Note is in substitution therefor and an amendment and replacement thereof.
Nothing herein or in any other document shall be construed to constitute payment
of the Prior Note or to release or terminate any guaranty, lien, pledge or
other
security interest in favor of the Lender. 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 §5-1401 AND §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 §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: Senior Vice President, Chief Financial Officer and Treasurer
BBA
HOLDINGS, INC.
By:
/s/XXXXXXX X. XXXXXX
Name:
Xxxxxxx X. Xxxxxx
Title:
President
BOMBAY
INTERNATIONAL, INC.
By:
/s/XXXXXX X. XXXXXXX
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President
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Date
|
Amount
of Advance
|
Amount
of Principal Paid or Prepaid
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Balance
of Principal Unpaid
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Notation
Made By:
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