EXHIBIT 10.7.1
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAWS
AND ACCORDINGLY MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT OR LAWS OR PURSUANT TO AN EXEMPTION
THEREFROM. THIS NOTE AND THE INDEBTEDNESS EVIDENCED HEREBY
ARE SUBORDINATE, IN THE MANNER AND TO THE EXTENT SET FORTH
IN THAT AMENDED AND RESTATED INTERCREDITOR AND SUBORDINATION
AGREEMENT (ASA MENDED, SUPPLEMENTED OR OTHERWISE MODIFIED
FROM TIME TO TIME, THE "SUBORDINATION AGREEMENT") DATED AS
OF April 8, 2003, BETWEEN AND AMONG BAKERS
FOOTWEAR GROUP, INC., F/K/A XXXXX & XXXXXX SHOE CO., AS THE
COMPANY, MISSISSIPPI VALLEY CAPITAL, LLC, AS THE
SUBORDINATED CREDITOR, AND THE SENIOR LENDER NAMED THEREIN,
TO ALL INDEBTEDNESS OWNED BY THE MAKER OF THIS NOTE TO THE
SENIOR LENDER, AND THE HOLDER OF THIS NOTE, BY ITS
ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THE
SUBORDINATION AGREEMENT.
BAKERS FOOTWEAR GROUP, INC., F/K/A
XXXXX AND XXXXXX SHOE CO.
AMENDED AND RESTATED SUBORDINATED NOTE
$500,000.00 St. Louis, Missouri
as of January 31, 2003
FOR VALUE RECEIVED, the undersigned, BAKERS FOOTWEAR GROUP, INC., F/K/A
XXXXX AND XXXXXX SHOE CO., a Missouri corporation (the "Company"), hereby
promises to pay to the order of Mississippi Valley Capital, LLC, a Missouri
limited liability company (the "Holder"), at the Holder's office at c/o Bush
X'Xxxxxxx and Company, 000 X. Xxxxxx Xxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx
00000, Attention Xxxxx X. Xxxxxx, or such other place as shall be designated in
writing by the Holder, the aggregate principal amount of Five Hundred Thousand
and No/100 Dollars ($500,000.00) on March 1, 2004 (the "Maturity Date") subject
to Section 1.2 hereof. Attached hereto and made a part hereof is a warrant (the
"WARRANT") to purchase shares of Class A Common Stock of the Company. Such
Warrant is not detachable or separately transferable from this Note, except as
set forth in Section 1(e) of the Warrant. Certain capitalized terms used in
this Note are defined in Section 5.
Section 1. Payment
1.1 Interest. The outstanding principal amount of this Note shall bear
interest (computed on the basis of a 365 or 366 day year, as the case may be)
at a rate equal to ten percent (10%) per annum from the date hereof to (and
including) the Maturity Date. Following the occurrence of any Event of Default,
the outstanding principal amount of this Note shall bear interest payable on
demand at a default rate per annum equal to sixteen percent (16%). Accrued
interest shall be paid on the last day of each calendar quarter ("Payment
Dates").
1.2 Redemption Payments.
Subject to the consent of Fleet Retail Finance, Inc. (the "Senior
Creditor"), on the Maturity Date, the Company shall pay to Holder in cash or
other immediately available funds the then outstanding principal amount of the
Note together with the accrued but unpaid interest thereon. By acceptance of
this Note, Holder acknowledges and agrees that payment of the principal balance
of this Note on or before the Maturity Date is subject to the consent of the
Senior Creditor pursuant to the terms of the Subordination Agreement. In the
event that Senior Creditor, in accordance with the provisions of the
Subordination Agreement, does not consent to the Company's payment in full of
the principal balance of this Note on or before the Maturity Date, the Maturity
Date hereof shall be automatically extended to the Senior Indebtedness Maturity
Date without any action by Company or Holder with respect thereto.
1.3 Business Days. Whenever payment on this Note shall be due on a date
that is not a Business Day, the date for payment thereof shall be the next
succeeding Business Day and interest due on the unpaid principal and any other
Amounts Payable hereunder shall accrue during such extension and shall be
payable on such succeeding Business Day.
1.4 Additional Agreements of the Company.
(a) All agreements and proceedings in connection with the Closing
under the Asset Purchase Agreement with Edison Stores, Inc. shall
have been completed;
(b) While this Note or the Warrant remains outstanding, Xxxxx Xxxxxx
shall remain as the Chief Executive Officer of the Company unless
a successor reasonably satisfactory to the Holder is appointed
within thirty (30) days of Xx. Xxxxxx'x cessation of such duties;
(c) Company shall deliver to the Holder:
(i) Within ninety (90) days after the end of each fiscal year
of the Company beginning with the fiscal year ending
December 31, 1999, an annual income statement for such
fiscal year, a balance sheet for the Company as of the end
of such year and a statement of cash flows for such year,
together with such notes thereto as are appropriate,
prepared in accordance with generally accepted accounting
principles consistently applied and setting forth in each
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case in comparative form the figures for the previous
year, in reasonable detail and audited by an independent
public accountant;
(ii) Within thirty (30) days after the end of each fiscal
quarter, an unaudited income statement and cash flow
statement for the Company for such quarter and the
current fiscal year to date and an unaudited balance
sheet as of the end of such fiscal quarter, setting
forth in comparative form the correspondent figures for
the prior fiscal quarter in such reasonable detail as
shall be requested by the Holder;
(iii) From time to time upon Holder's request, such other
information regarding the business, affairs and
prospects and financial condition of the Company as the
Holder shall reasonably request.
Section 2. PREPAYMENT.
2.1 Prepayment. This Note may not be prepaid and the Warrant may not
be redeemed prior to the Maturity Date without the written consent of the
holder and the Consent of the holders of outstanding Senior Indebtedness.
Section 3. DEFAULTS.
3.1 Events of Default. If one or more of the following events ("Events
of Default") shall have occurred and be continuing:
(a) the Company shall fail to pay within five (5) Business
Days of the due date thereof any principal of this Note
or shall fail to pay within five (5) Business Days of the
due date thereof any interest or any other Amounts
Payable hereunder and the same shall not have been cured
within ten (10) days after written notice thereof has
been given by the Holder to the Company;
(b) the Company shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official, or shall consent to any such relief or to the
appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced
against it, or shall make a general assignment for the
benefit of creditors;
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(c) an involuntary case or other proceeding shall be commenced
against the Company seeking liquidation, reorganization or
other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official, and such
involuntary case or other proceeding shall remain
undismissed and unstayed for a period of sixty (60) days; or
an order for relief shall be entered against the Company
under the Federal bankruptcy laws as now or hereafter in
effect;
(d) if the Company shall fail in any material respect to perform
or preserve any covenant, agreement or provision set forth
in this Note or any covenant, agreement or provision to be
performed by it under the Warrant, and such failure shall
not be cured to the Holder's satisfaction within thirty (30)
days after written notice from the Holder to the Company, or
(e) The occurrence of any default under or pursuant to the
Senior Indebtedness;
then, and in every such event, subject to the provisions of Section 4, the
Holder may, by notice to the Company and to the holders of Senior Indebtedness,
declare the principal amount of this Note together with accrued interest
thereon, and the Warrant Redemption Price (as defined in the Warrant and
provided the Warrant has not been exercised pursuant to its terms), to be, and
such portions of the principal amount of this Note (and accrued interest
thereon) and the Warrant Redemption Price shall thereupon become, due and
payable without presentment, demand, protest or further notice of any kind, all
of which are hereby waived by the Company.
Section 4. Security and Subordination.
4.1 Security. This Note shall be secured by the collateral further
described in the Security Agreement.
4.2 Note Subordinated to Senior Indebtedness. The Holder acknowledges
and agrees that all of its right, title and interest in and to this Note,
including but not limited to its right to receive payments in respect of
principal and interest as provided herein, shall be subordinate to any and all
Senior Indebtedness of the Company. The Holder agrees to execute any and all
agreements, including but not limited to an intercreditor and subordination
agreement, which the holder of Senior Indebtedness may require. The Holder
covenants and agrees for the benefit of the holders of Senior Indebtedness that
it will not take any security interest, lien or other encumbrance on the assets
of the Company as collateral security for the Company's obligations under this
Note without such holders' prior written consent. The Holder acknowledges that
the Company shall not make, and the Holder shall not accept any payments of
principal or interest on this Note after the Holder's receipt of written notice
of the occurrence of and during the continuation of a default under any Senior
Indebtedness agreement. If the Holder shall at any
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time receive any payment which is prohibited by any Senior Indebtedness
agreement, and receive notice of same from any holder of Senior Indebtedness,
the Holder will hold such payment in trust and immediately turn it (or an
amount of money equal to it) over to the holder of Senior Indebtedness for
application in payment of the outstanding Senior Indebtedness.
Section 5. Extension Fee. In consideration of Holder extending the maturity of
this Note to the Maturity Date, the Company shall pay to the Holder an
extension fee in the amount of Ten Thousand and No/100 Dollars ($10,000.00),
which shall be due and payable on or before April 11, 2003.
Section 6. Definitions.
For purposes of this Note, the following terms have the meanings set forth
below.
"Amounts Payable" means all principal of, interest on, premium, if any,
fees, costs, expenses, indemnities, Warrant Redemption Price, or any other
amounts due from the Company under this Note, and all claims against or
liabilities of the Company in respect of this Note and the attached Warrant.
"Business Day" means any day except a Saturday, Sunday or other days on
which commercial banks in St. Louis, Missouri or New York City are required or
authorized by law to close.
"Default" means any condition or event that constitutes an Event of
Default or that with notice or lapse of time or both would, unless cured or
waived, become an Event of Default.
"EBITDA" means the Company's earnings before income taxes, depreciation
and amortization determined in accordance with generally accepted accounting
principles, consistently applied.
"Indebtedness" means any indebtedness (including, without limitation,
Senior Indebtedness), whether or not contingent, in respect of borrowed money
or evidenced by bonds, notes, debentures, guarantees or similar instruments or
letters of credit (or reimbursement agreements in respect thereof) or
representing the deferred and unpaid balance of the purchase price of any
property (including pursuant to capital leases), and any financial hedging
obligations, if and to the extent such indebtedness (other than a financial
hedging obligation) would appear as a liability upon a balance sheet of such
person prepared on a consolidated basis in accordance with generally accepted
accounting principles, other than a trade payable or accrued expense.
"Note" means this Amended and Restated Subordinated Note due on the
Maturity Date.
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"Security Agreement" means that certain Security Agreement dated as of
even date herewith, executed by the Company and granting to the Holder a
security interest in certain collateral further described therein.
"Senior Indebtedness" shall mean the principal, interest (including any
interest accruing subsequent to an event specified in Sections 3.1(b) and
3.1(c)), premium, if any, fees (including, without limitation, any commitment,
agency, facility, structuring, restructuring or other fee), costs, expenses,
indemnities, and other amounts due on or in connection with any Indebtedness of
the Company to Senior Creditor, individually or as an agent for itself for other
lenders, now or herewith incurred, or any documents executed under or in
connection therewith, and any amendments, modifications, deferrals, renewals or
extensions of such Indebtedness, and any amounts owed in respect of any
Indebtedness incurred in refinancing, replacing or refunding the foregoing
(including any refinancing, replacing or refunding with new lenders), unless the
terms of such Indebtedness expressly provide that such Indebtedness is not
Senior Indebtedness with respect to this Note. Nothing in this Note shall
restrict an Affiliate of the Company from being a holder of Senior Indebtedness.
Indebtedness owed to Affiliates of the Company will be Senior Indebtedness for
purposes of this Note. Notwithstanding anything herein to the contrary, Senior
Indebtedness shall include any payables, accrued expenses, fees or other amounts
due to an Affiliate of the Company.
"Senior Indebtedness Maturity Date" shall mean December 31, 2004.
Section 7. Miscellaneous.
7.1 Notices. All notices, requests and other communications to any
party hereunder shall be in writing and shall be delivered personally, sent by
facsimile transmission or sent by certified, registered or express mail, postage
prepaid and shall be deemed given when so delivered personally, or sent by
facsimile transmission, or if mailed or sent by overnight courier, upon receipt
thereof, as follows:
If to the Company, to:
Bakers Footwear Group, Inc.
0000 Xxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Chief Executive Officer
with a copy to:
Xxxxx Xxxx LLP
One Metropolitan Square
000 X. Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: J. Xxxx Xxxxxx
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If to the Holder, to:
Mississippi Valley Capital, LLC
c/o Bush X'Xxxxxxx and Company
000 Xxxxx Xxxxxx Xxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
with a copy to:
Xxxx X. Xxxxxxxx
Xxxxxxxxx Xxxxxxxx LLP
Xxx Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Each party may, by notice given in accordance with this Section to the other
party, designate another address or person for receipt of notices hereunder.
7.2 No Waivers. No failure or delay by the Holder in exercising any
right, power or privilege hereunder or under this Note shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law. No notice to or demand on the Company in
any case shall entitle the Company to any other or further notice or demand in
related or similar circumstances requiring such notice.
7.3 Amendments and Waivers. Any provision of this Note may be amended
or waived if, but only if, such amendment or waiver is in writing, signed by the
Company and the Holder.
7.4 Successors and Assigns. The provisions of this Note and the
attached Warrant shall be binding upon and inure to the benefit of the Holder
and its respective successors and permitted assigns. If requested by a holder of
Senior Indebtedness as part of any consent, the assignee or transferee of the
Holder shall agree in writing to be bound by all of the terms of this Note and
the attached Warrant. The Holder hereof hereby waives proof of reliance hereon
by the holders of Senior Indebtedness.
This Note is registered on the books of the Company and is
transferable only by surrender thereof at the chief executive office of the
Company duly endorsed or accompanied by a written instrument of transfer duly
executed by the registered holder of this Note or its attorney duly authorized
in writing. Payment of or on account of principal and interest on this Note
shall be made only to or upon the order in writing of the registered holder.
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7.5 LITIGATION. THIS NOTE SHALL BE GOVERNED BY, CONSTRUED, APPLIED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF MISSOURI, AND NO
DOCTRINE OF CHOICE OF LAW SHALL BE USED TO APPLY ANY LAW OTHER THAN THAT OF
MISSOURI, AND NO DEFENSE, COUNTERCLAIM OR RIGHT OF SET-OFF GIVEN OR ALLOWED BY
THE LAWS OF ANY OTHER STATE OR JURISDICTION, OR ARISING OUT OF THE ENACTMENT,
MODIFICATION OR REPEAL OF ANY LAW, REGULATION, ORDINANCE OR DECREE OF ANY
FOREIGN JURISDICTION, BE INTERPOSED IN ANY ACTION HEREON. THE PARTIES AGREE THAT
ANY ACTION OR PROCEEDING TO ENFORCE OR ARISING OUT OF THIS NOTE MAY BE COMMENCED
IN THAT STATE COURTS, OR IN THE UNITED STATES DISTRICT COURTS IN ST LOUIS,
MISSOURI. THE PARTIES CONSENT TO SUCH JURISDICTION, AGREE THAT VENUE WILL BE
PROPER IN SUCH COURTS AND WAIVE ANY OBJECTIONS BASED UPON FORUM NON CONVENIENS.
THE CHOICE OF FORUM SET FORTH IN THIS SECTION 7.5 SHALL NOT BE DEEMED TO
PRECLUDE THE ENFORCEMENT OF ANY ACTION UNDER THIS AGREEMENT IN ANY OTHER
JURISDICTION.
If any amounts due pursuant to this Note are not paid when due, and
this Note is placed in the hands of an attorney or attorneys for collection
(whether or not litigation is commenced) or for representation of the Holder
hereof in connection with bankruptcy or insolvency proceedings, the undersigned
promises to pay, in addition to all other amounts due hereon, the reasonable
costs and expenses of such collection representation, including reasonable
attorney's fees and expenses.
This Note is a restated and amended version of that certain
Subordinated Note dated June 22, 1999, executed by the Company and originally
payable to the order of Mississippi Valley Capital Company, a Missouri
corporation, in the original principal amount of Five Hundred Thousand and
No/100 Dollars ($500,000.00), and shall not constitute a cancellation of the
principal amount of such note evidenced thereby.
BAKERS FOOTWEAR GROUP, INC.,
f/k/a Xxxxx and Xxxxxx Shoe Co.
By: /s/ XXXXX XXXXXX
-------------------------------------
Xxxxx Xxxxxx, Chief Executive Officer
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