EXHIBIT 10.9
GUARANTY
(The Right Start, Inc.)
This GUARANTY, dated as of January 6, 2002, is made by The Right Start,
Inc., a California corporation ("GUARANTOR"), in favor of the holders from time
to time (collectively, the "SUBORDINATED NOTE HOLDERS") of certain subordinated
notes (the "SUBORDINATED NOTES") issued by Toy Soldier, Inc., a Delaware
corporation ("ISSUER") and wholly-owned subsidiary of Guarantor:
RECITALS
A. Pursuant to that certain Asset Purchase Agreement dated November 19,
2001 entered into by and among Guarantor, Issuer, Royal Vendex KBB N.V., a
Netherlands corporation, F.A.O. ▇▇▇▇▇▇▇, a New York corporation, and Quality
Fulfillment Services, Inc., a Virginia corporation (the "PURCHASE AGREEMENT"),
Issuer issued to the Subordinated Note Holders the Subordinated Notes in partial
payment of the Initial Purchase Price (as defined by the Purchase Agreement).
B. As a condition to acceptance of the Subordinated Notes by the
Subordinated Note Holders in partial payment of the Initial Purchase Price,
Guarantor is required to enter into this Guaranty and to guaranty the Guarantied
Obligations as hereinafter provided.
AGREEMENT
NOW, THEREFORE, in order to induce the Subordinated Note Holders to accept
the Subordinated Notes in partial payment of the Initial Purchase Price, and for
other good and valuable consideration, the receipt and adequacy of which hereby
are acknowledged, Guarantor hereby represents, warrants, covenants, agrees and
guaranties as follows:
1. DEFINITIONS. Guarantor is The Right Start, Inc. Terms defined in
the Subordinated Notes and not otherwise defined in this Guaranty shall have the
meanings given those terms in the Subordinated Notes when used herein and such
definitions are incorporated herein as though set forth in full. In addition, as
used herein, the following terms shall have the meanings respectively set forth
after each:
"GUARANTIED OBLIGATIONS" means any and all present and future obligations
of Issuer to Subordinated Note Holders arising under or related to the
Subordinated Notes and/or any one or more of them, whether due or to become due,
matured or unmatured, or liquidated or unliquidated, INCLUDING interest that
accrues after the commencement of any bankruptcy or insolvency proceeding by or
against any Subordinated Note Holder, Issuer or any other person.
"GUARANTY" means this Guaranty, and any extensions, modifications,
renewals, restatements, reaffirmations, supplements or amendments hereof.
2. SUBORDINATION AGREEMENT. This instrument and the rights and
obligations evidenced hereby are subordinate in the manner and to the extent set
forth in that certain Subordination and Intercreditor Agreement dated as of
January 6, 2002 (as amended, supplemented or otherwise modified from time to
time, the "SUBORDINATION AGREEMENT") among Royal Vendex KBB, N.V., a Netherlands
corporation, F.A.O. ▇▇▇▇▇▇▇, a New York corporation, Quality Fulfillment
Services, Inc., a Virginia corporation, Issuer and ▇▇▇▇▇ Fargo Retail Finance,
LLC, to the indebtedness (including interest) owed by Guarantor pursuant to the
loan and security agreement between Guarantor, Issuer and ▇▇▇▇▇
Fargo Retail Finance, LLC, dated as of January 23, 2001 (as amended,
supplemented or otherwise modified from time to time, the "▇▇▇▇▇ LOAN
AGREEMENT") and to indebtedness refinancing the indebtedness under the ▇▇▇▇▇
Loan Agreement (the "▇▇▇▇▇ INDEBTEDNESS") as contemplated by the Subordination
Agreement, and to any other secured indebtedness of Guarantor for borrowed money
permitted by the ▇▇▇▇▇ Loan Agreement, and each holder of the Subordinated
Notes, by acceptance thereof, has agreed to be bound by the provisions of the
Subordination Agreement. In the event that any provisions of this Guaranty are
deemed to conflict with the Subordination Agreement, the provisions of the
Subordination Agreement shall govern.
3. GUARANTY OF GUARANTIED OBLIGATIONS. Guarantor hereby irrevocably
and unconditionally guaranties and promises to pay on demand the Guarantied
Obligations and each and every one of them, INCLUDING all amendments,
modifications, supplements, renewals or extensions of any of them, whether such
amendments, modifications, supplements, renewals or extensions are evidenced by
new or additional instruments, documents or agreements or change the rate of
interest on any Guarantied Obligation or the security therefor, or otherwise.
4. NATURE OF GUARANTY. This Guaranty is irrevocable and continuing
in nature and relates to any Guarantied Obligations now existing or hereafter
arising. This Guaranty is a guaranty of prompt and punctual payment and is not
merely a guaranty of collection.
5. PREPAYMENT TRIGGERED BY SECURITIES OFFERING. In the event that
Guarantor shall receive net cash proceeds from the closing of a sale of debt or
equity securities of Guarantor or Issuer ("CASH PROCEEDS") in excess of
$5,000,000, not more than 30 calendar days after such receipt, Guarantor shall
contribute to Issuer cash in an amount sufficient to permit Issuer to fulfill
its obligation under Section 3.3 of the Subordinated Notes to prepay an
aggregate principal amount of the Subordinated Notes equal to the Cash Proceeds.
Notwithstanding the foregoing, Guarantor shall not be required to contribute to
Issuer any proceeds from the closing of a sale of debt or equity securities of
Guarantor or Issuer to the extent that the issuance resulting in such Cash
Proceeds was effected solely to fund a merger, consolidation or asset
acquisition and the Cash Proceeds of such issuance are so used within 30 days of
receipt.
6. RELATIONSHIP TO OTHER AGREEMENTS. Nothing herein shall in any way
modify or limit the effect of terms or conditions set forth in any other
document, instrument or agreement executed by Guarantor in connection with the
Guarantied Obligations, but each and every term and condition hereof shall be in
addition thereto. All provisions contained in the Subordinated Notes are fully
applicable to this Guaranty and are incorporated herein by this reference.
7. WAIVERS AND CONSENTS. Guarantor acknowledges that the obligations
undertaken herein involve the guaranty of obligations of persons other than
Guarantor and, in full recognition of that fact, consents and agrees that
Subordinated Note Holders, together with Issuer, may, at any time and from time
to time, without notice or demand, and without affecting the enforceability or
continuing effectiveness hereof (a) supplement, modify, amend, extend, renew,
accelerate or otherwise change the time for payment or the terms of the
Guarantied Obligations or any part thereof, INCLUDING any increase or decrease
of the rate of interest thereon; (b) supplement, modify, amend or waive, or
enter into or give any agreement, approval or consent with respect to, the
Guarantied Obligations or any part thereof, or any of the Subordinated Notes to
which Guarantor is not a party or any additional security or guaranties, or any
condition, covenant, default, remedy, right, representation or term thereof or
thereunder; (c) accept new or additional instruments, documents or agreements in
exchange for or relative to any of the Subordinated Notes or the Guarantied
Obligations or any part thereof; (d) accept partial payments on the Guarantied
Obligations; (e) receive and hold additional security or guaranties for the
Guarantied Obligations or any part thereof; (f) release, reconvey, terminate,
waive, abandon, fail to perfect, subordinate, exchange,
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substitute, transfer and/or enforce any security or guaranties, and apply any
security and direct the order or manner of sale thereof as Subordinated Note
Holders in conjunction with Issuer may determine; (g) release any person from
any personal liability with respect to the Guarantied Obligations or any part
thereof; (h) settle, release on terms satisfactory to Subordinated Note Holders
or by operation of applicable laws or otherwise liquidate or enforce any
Guarantied Obligations and any security or guaranty therefor in any manner,
consent to the transfer of any security and bid and purchase at any sale; and/or
(i) consent to the merger, change or any other restructuring or termination of
the corporate or other existence of Issuer and correspondingly restructure the
Guarantied Obligations, and any such merger, change, restructuring or
termination shall not affect the liability of Guarantor or the continuing
effectiveness hereof, or the enforceability hereof with respect to all or any
part of the Guarantied Obligations.
Upon the occurrence and during the continuance of any Event of Default,
Subordinated Note Holders may enforce this Guaranty independently of any other
remedy or security Subordinated Note Holders at any time may have or hold in
connection with the Guarantied Obligations. Guarantor expressly waives any right
to require the Subordinated Note Holders to marshal assets in favor of Issuer,
or to proceed against Issuer, or upon or against any security or remedy, before
proceeding to enforce this Guaranty. Guarantor agrees that the Subordinated Note
Holders may proceed against Issuer, or upon or against any security or remedy,
in such order as they shall determine in their sole and absolute discretion.
Subordinated Note Holders may file a separate action or actions against Issuer
and/or Guarantor without respect to whether action is brought or prosecuted with
respect to any security or against any other person, or whether any other person
is joined in any such action or actions. Guarantor agrees that Subordinated Note
Holders, Issuer, any other obligors and any affiliates of Issuer or such
obligors may deal with each other in connection with the Guarantied Obligations
or otherwise, or alter any contracts or agreements now or hereafter existing
between any of them, in any manner whatsoever, all without in any way altering
or affecting the security of this Guaranty. Subordinated Note Holders' rights
hereunder shall be reinstated and revived, and the enforceability of this
Guaranty shall continue, with respect to any amount at any time paid on account
of the Guarantied Obligations which thereafter shall be required to be
disgorged, restored or returned by Subordinated Note Holders upon the
bankruptcy, insolvency or reorganization of Issuer or any other person, or
otherwise, all as though such amount had not been paid. The rights of
Subordinated Note Holders created or granted herein and the enforceability of
this Guaranty with respect to Guarantor at all times shall remain effective to
guaranty the full amount of all the Guarantied Obligations even though the
Guarantied Obligations, or any part thereof, or any security or guaranty
therefor, may be or hereafter may become invalid or otherwise unenforceable as
against Issuer or any other guarantor or surety or any other person and whether
or not Issuer or any other person shall have any personal liability with respect
thereto. Guarantor expressly waives any and all defenses now or hereafter
arising or asserted by reason of (a) any disability or other defense of Issuer
or any other obligor with respect to the Guarantied Obligations, (b) the
unenforceability or invalidity of any security or guaranty for the Guarantied
Obligations or the lack of perfection or continuing perfection or failure of
priority of any security for the Guarantied Obligations, (c) the cessation for
any cause whatsoever of the liability of Issuer or any other obligor (other than
by reason of the full payment and performance of all Guarantied Obligations),
(d) any failure of Subordinated Note Holders to marshal assets in favor of
Issuer or any other person, (e) except as otherwise provided in this Guaranty,
any failure of Subordinated Note Holders to give notice of sale or other
disposition of Collateral to Guarantor or any other person or any defect in any
notice that may be given in connection with any sale or disposition of
Collateral, (f) except as otherwise provided in this Guaranty, any failure of
Subordinated Note Holders to comply with applicable laws in connection with the
sale or other disposition of any Collateral or other security for any Guarantied
obligations, including without limitation, any failure of Subordinated Note
Holders to conduct a commercially reasonable sale or other disposition of any
Collateral or other security for any Guarantied Obligation, (g) any act or
omission of Subordinated Note Holders or others that directly or indirectly
results in or aids the discharge or release of Issuer or any other obligor or
the Guarantied Obligations or any security or guaranty therefor by operation of
law or otherwise, (h) any law which provides that the
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obligation of a surety or guarantor must neither be larger in amount nor in
other respects more burdensome than that of the principal or which reduces a
surety's or guarantor's obligation in proportion to the principal obligation,
(i) any failure of Subordinated Note Holders to file or enforce a claim in any
bankruptcy or other proceeding with respect to any person, (j) the election by
Subordinated Note Holders, in any bankruptcy proceeding of any person, of the
application or non-application of Section 1111(b)(2) of the United States
Bankruptcy Code, (k) any extension of credit or the grant of any lien under
▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code, (1) any use of cash collateral
under Section 363 of the United States Bankruptcy Code, (m) any agreement or
stipulation with respect to the provision of adequate protection in any
bankruptcy proceeding of any person, (n) the avoidance of any lien in favor of
Subordinated Note Holders for any reason, (o) any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, liquidation or dissolution
proceeding commenced by or against any person, INCLUDING any discharge of, or
bar or stay against collecting, all or any of the Guarantied Obligations (or any
interest thereon) in or as a result of any such proceeding, (p) to the extent
permitted, the benefits of any form of one-action rule under any applicable law,
or (q) any action taken by Subordinated Note Holders that is authorized by this
Section or any other provision of the Subordinated Notes. Guarantor expressly
waives demands for payment or performance, notices of nonpayment or
nonperformance, protests, notices of protest, notices of dishonor and all other
notices or demands of any kind or nature whatsoever with respect to the
Guarantied Obligations, and all notices of acceptance of this Guaranty or of the
existence, creation or incurrence of new or additional Guarantied Obligations.
8. UNDERSTANDINGS WITH RESPECT TO WAIVERS AND CONSENTS. Guarantor
warrants and agrees that each of the waivers and consents set forth herein are
made with full knowledge of their significance and consequences, with the
understanding that events giving rise to any defense or right waived may
diminish, destroy or otherwise adversely affect rights which Guarantor otherwise
may have against Issuer, Subordinated Note Holders or others, or against any
collateral. Guarantor acknowledges that it has either consulted with legal
counsel regarding the effect of this Guaranty and the waivers and consents set
forth herein, or has made an informed decision not to do so. If this Guaranty or
any of the waivers or consents herein are determined to be unenforceable under
or in violation of applicable law, this Guaranty and such waivers and consents
shall be effective to the maximum extent permitted by law.
9. CORPORATE EXISTENCE. Except as set forth in this SECTION 9,
Guarantor will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence in accordance with its
organizational documents, rights (charter and statutory), licenses and
franchises; PROVIDED HOWEVER, that Guarantor shall not be required to preserve
any such right, license or franchise, if the Board of Directors of Guarantor
shall determine in good faith, which determination shall be evidenced by a board
resolution, that the preservation thereof is no longer desirable in the conduct
of the business of Guarantor and that the loss thereof is not adverse in any
material respect to Subordinated Note Holders. Notwithstanding the other
provisions of this Guaranty, Guarantor shall be permitted to merge with or into
any other entity if either (a) Guarantor shall be the continuing corporation or
(b) the merger is with and into a wholly-owned subsidiary of Guarantor and the
surviving corporation of such merger expressly assumes the performance of the
obligations of Guarantor under this Guaranty.
10. INVESTMENT COMPANY ACT. Guarantor shall not become an investment
company subject to registration under the Investment Company Act of 1940, as
amended.
11. SEC REPORTS, FINANCIAL REPORTS. If the following information and
documents are not available through the internet, Guarantor shall provide
Subordinated Note Holders within 15 days after it files them with the United
States Securities and Exchange Commission (the "SEC") copies of quarterly and
annual reports and the information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) that Guarantor files with the SEC pursuant to Sections 13(a) and
13(c) or 15(d) of the Securities Exchange Act of 1934, as amended
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(the "EXCHANGE ACT"). Guarantor will continue to file with the SEC and to
provide to the Subordinated Note Holders, on the same timely basis such reports,
information and other documents as Guarantor would be required to file with the
SEC as if Guarantor were subject to the requirements of such Sections 13(a) and
13(d) or 15(d) of the Exchange Act, notwithstanding that Guarantor may no longer
be subject to Section 13(a) and 13(d) or 15(d) of the Exchange Act and that
Guarantor would be entitled not to file such reports, information and other
documents with the SEC.
12. LIMITATIONS ON LIABILITY. Notwithstanding anything to the
contrary elsewhere contained herein or in the Subordinated Notes, the aggregate
liability of Guarantor hereunder for payment of the Guarantied Obligations shall
not exceed an amount which, in the aggregate, is $1.00 less than that amount
which if so paid or performed would constitute or result in a "fraudulent
transfer," "fraudulent conveyance" or terms of similar import, under applicable
state or federal law, including without limitation, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Bankruptcy Code.
13. THIS GUARANTY SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty by its duly
authorized officer as of the date first written above.
"Guarantor"
THE RIGHT START, INC.,
a California corporation
Address for Guarantor:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: Legal
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
By:____________________________
Title:___________________________