THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THIS NOTE
MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THE PROPOSED
TRANSACTION DOES NOT REQUIRE REGISTRATION OR QUALIFICATION UNDER FEDERAL OR
STATE SECURITIES LAWS, OR UNLESS THE PROPOSED TRANSACTION IS REGISTERED OR
QUALIFIED AS REQUIRED.
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 (as amended, supplemented or otherwise modified from
time to time, the "Subordination Agreement") dated as of January 6, 2002, among
F.A.O. Xxxxxxx, Quality Fulfillment Services, Inc., The Right Start, Inc. (the
"Parent"), Toy Soldier, Inc. (the "Company") (collectively with Parent, the
"Obligors") and Xxxxx Fargo Retail Finance, LLC (the "Senior Lender"), to the
indebtedness (including interest) owed by the Obligors pursuant to that certain
Loan and Security Agreement dated as of January 23, 2001, as amended, between
the Obligors and the Senior Lender, as such Loan and Security Agreement has been
and hereafter may be amended, supplemented or otherwise modified from time to
time (the "Xxxxx Loan Agreement") and to indebtedness refinancing the
indebtedness under that agreement as contemplated by the Subordination
Agreement; and each holder of this instrument, by its acceptance hereof,
irrevocably agrees to be bound by the provisions of the Subordination Agreement.
TOY SOLDIER, INC.
SUBORDINATED NOTE DUE JANUARY 6, 2005
$17,098,100 Calabasas, California
Note No. FAO-1 January 6, 2002
FOR VALUE RECEIVED, the undersigned, Toy Soldier, Inc., a Delaware
corporation (the "Company"), promises to pay to F.A.O. Xxxxxxx or registered
assigns, the principal sum of SEVENTEEN MILLION NINETY-EIGHT THOUSAND ONE
HUNDRED DOLLARS, as such principal sum may be reduced through prepayments, plus
any accrued and unpaid interest thereon as provided for herein (or so much of
such aggregate amount as shall not have been prepaid) on January 6, 2005. This
Note is being issued as payment under the terms of the Asset Purchase Agreement
dated November 19, 2001 (the "Agreement"; capitalized terms used in this Note
without definition shall have the meanings ascribed to such terms in the
Agreement) by and among the Parent, the Company, F.A.O. Xxxxxxx, Quality
Fulfillment Services, Inc. and Royal Vendex KBB N.V. Payments are to be made to
the address of the registered holder of this Note as set forth on the records of
the Company in lawful money of the United States of America. The Company
promises to pay interest on the principal amount of this Note, in cash,
semi-annually on each June 1 and December 1, commencing June 1, 2002 (each such
date an "Interest Payment Date"), at a rate of 8% per annum, to the holder of
record of this Note on the Company's records (the "Holder") at the close of
business on the date that is 10 business days prior to such Interest Payment
Date (the "Record Date").
Interest on the unpaid principal amount of this Note will accrue from
the most recent date to which interest has been paid or, if no interest has been
paid, from the date of issuance hereof. Interest will be computed on the basis
of a 360-day year consisting of twelve 30-day months and paid semi-annually. The
Company shall pay principal of and interest on this Note in such coin or
currency of the United States of America as at the time of payment shall be
legal tender. The Company may, however, pay principal of or interest on this
Note by wire transfer of federal funds, or interest on this Note by its check
payable in such legal tender.
Subject to Section 1, the Company shall prepay principal as set forth
in Section 3.
This Note is secured by a guaranty dated the date hereof from Parent
(the "Guaranty"). This Note is one of the subordinated notes totaling
$17,998,000 in aggregate principal amount issued as payment under the Agreement
(the "Notes"). If the Company shall (i) fail to pay principal or interest when
due, (ii) fail generally to pay its debts as they mature, (iii) have any
complaint, application, or petition filed by or against it initiating any matter
in which the Company is or may be granted any relief from the its debts pursuant
to Title 11, U.S.C., as amended from time to time, or any other insolvency
statute or procedure or make a general assignment for the benefit of its
creditors (a "Bankruptcy Event"), (iv) experience or suffer to exist an "Event
of Default" (as defined in the Xxxxx Loan Agreement) which Event of Default (as
defined in the Xxxxx Loan Agreement) is continuing and has not been waived
within ten days after written notice thereof to the Company, or (v) fail to
comply with any other provision of this Note or the Agreement which failure
shall continue for five days after written notice thereof from the Holder (each
of (i) through (v) above, an "Event of Default"), the aggregate outstanding
amount of this Note, including any accrued and unpaid interest, shall be
immediately due and payable, and in addition thereto, and not in substitution
therefor, the Holder shall be entitled to exercise any one or more of the rights
and remedies provided by law. Failure to exercise any right or remedy under this
Note or available under applicable law shall not constitute a waiver of such
option or such other remedies or of the right to exercise any of the same in the
event of any subsequent Event of Default. The Company and all makers, sureties,
guarantors, endorsers and other persons assuming obligations pursuant to this
Note hereby waive presentment, protest, demand, notice of dishonor and all other
notices and all defenses and pleas on the grounds of any extension or extension
of the time of payments or the due dates hereof, in whole or in part, before or
after maturity, with or without notice. No renewal or extension of this Note, no
release of any obligor and no delay in enforcement of this Note or in exercising
any right or power hereunder shall affect the liability of any obligor
hereunder.
1. Ranking. This instrument and the rights and obligations evidenced
hereby are subordinate in the manner and to the extent set forth in the
Subordination Agreement to the indebtedness (including interest) owed by the
2
Company pursuant to the Xxxxx Loan Agreement and to indebtedness refinancing the
indebtedness under the Xxxxx Loan Agreement (the "Xxxxx Indebtedness") as
contemplated by the Subordination Agreement, and to any other secured
indebtedness of the Company for borrowed money permitted by the Xxxxx Loan
Agreement, and each Holder of this Note, by acceptance hereof, agrees to be
bound by the provisions of the Subordination Agreement. In the event that any
provisions of this Note are deemed to conflict with the Subordination Agreement,
the provisions of the Subordination Agreement shall govern.
2. Covenants.
2.1 Payment of Note. The Company shall pay the principal of
and interest on this Note on the dates and in the manner provided herein.
Principal and interest shall be considered paid on the date due if the Company
shall have delivered such amounts to the address of the Holder on its books and
records or to such other address or by wire transfer instruction set forth in
writing and delivered to the Company, in each case in accordance with the notice
provisions of this Note.
To the extent lawful, the Company shall pay interest
(including post-petition interest in any proceeding under any bankruptcy law) on
(i) overdue principal at the rate borne by this Note compounded semiannually and
(ii) overdue installments of interest at the same rate, compounded semiannually.
2.2 Corporate Existence. Except as set forth in this Section
2.2, the Company 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 the Company shall not be required to preserve
any such right, license or franchise, if the Board of Directors of the Company
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 the Company and that the loss thereof is not adverse in any
material respect to the Holder. Notwithstanding the other provisions of this
Note, the Company shall be permitted to merge with or into any other entity if
(a) the continuing corporation upon completion of the merger shall be a
wholly-owned subsidiary of the Parent or (b) the merger is with and into a
wholly-owned subsidiary of the Company; provided such merger is effected for the
purposes of reincorporating the Company in another state or (c) the merger is
with and into Parent; and, in each case, the surviving corporation of such
merger expressly assumes the performance of the obligations of the Company under
this Note.
2.3 Taxes. The Company shall pay prior to delinquency, all
taxes, assessments and governmental levies, except as contested in good faith
and by appropriate proceedings or in cases in which such failure to pay would
not have a material adverse effect on the Company or other rights of the holder
of this Note.
2.4 Investment Company Act. The Company shall not become an
investment company subject to registration under the Investment
Company Act of 1940, as amended.
2.5 Transactions with Related Persons. The Company shall not
directly or indirectly, conduct any business or enter into any contract,
agreement, loan, advance, guarantee, understanding or other transaction or
series of related transactions pursuant to which the Company shall receive or
render value exceeding $750,000, with any Related Person of the Company (a
3
"Related Person Transaction") unless (i) the terms of such Related Person
Transaction are (A) set forth in writing and (B) no less favorable to the
Company than those that would have been obtained in an arms length transaction
with an unrelated third party.
2.6 Restriction on Layering Debt and Issuing Disqualified
Stock. The Company shall not (a) incur any indebtedness that is subordinate or
junior in right of payment to the Xxxxx Indebtedness and senior in any respect
(including by virtue of being secured in any manner) in right of payment to this
Note or (b) issue any class of capital stock that is mandatorily redeemable
prior to the final maturity date of this Note. Notwithstanding the foregoing,
Company shall be permitted to incur indebtedness that is secured by a lien
(including purchase money indebtedness) to the extent permitted under the Xxxxx
Loan Agreement and to enter into leases that may be capitalized in accordance
with GAAP and, to the extent that any such incurrence is permitted by the Xxxxx
Loan Agreement, such incurrence or entrance into leases shall not be deemed a
violation of this Section 2.6.
2.7 Usury. The Company agrees (to the extent it may lawfully
do so) that it will not at any time insist upon, plead or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law that would prohibit or forgive the Company from
paying all or a portion of the principal of or interest on this Note as
contemplated in this Note, wherever enacted, now or at any time later in force,
or that may materially affect the covenants or the performance of this Note in
any manner inconsistent with its provisions. The Company expressly waives all
benefit or advantage of any such law, and will not hinder, delay or impede the
execution of any power granted to the Holder, but will suffer and permit the
execution of every such power as though no such law had been enacted. If a court
of competent jurisdiction prescribes that the Company may not waive its rights
to take the benefit or advantage of any stay or extension law or any usury law
or other law in accordance with the prior sentence, then the obligation to pay
interest on the Note shall be reduced to the maximum legal limit under
applicable law governing the interest payable in connection with the Note, and
any amount of interest paid by the Company that is deemed illegal shall be
deemed to have been a prepayment of principal (without penalty or premium) on
this Note.
2.8 Reports. Unless such reports are readily accessible by the
public, electronically and without cost, the Company shall deliver copies of all
quarterly and annual financial reports and of the information, documents, and
other reports (or copies of such portions of any of the foregoing as the
Securities and Exchange Commission (the "Commission") may by rules and
regulations prescribe) that the Company is required to file with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act ("SEC Reports") to the
Holder. If the Company is not subject to the requirements of Section 13(a) or
15(d) of the Exchange Act or shall cease to be required by the Commission to
file SEC Reports pursuant to the Exchange Act, the Company shall nevertheless
continue to cause SEC Reports, comparable to those that it would be required to
file pursuant to Section 13(a) or 15(d) of the Exchange Act if it were subject
to the requirements of either such section, to be delivered to the Holder within
the same time periods as would have applied (including under the preceding
sentence) had the Company been subject to the requirements of Section 13(a) or
15(d) of the Exchange Act.
2.9 Restricted Payments. The Company shall not directly or
indirectly purchase, redeem, retire or otherwise acquire for value any
4
indebtedness of the Company for borrowed money or evidenced by notes,
debentures, bonds or other similar instruments that is subordinate (whether by
agreement or otherwise) in right of payment to the Notes, except at final
maturity or in accordance with the mandatory redemption or repayment provisions
set forth in the original documentation governing such indebtedness.
2.10 Asset Sales. The Company shall not, whether in a single
transaction or a series of related transactions occurring within any
twelve-month period, sell, lease, convey, dispose or otherwise transfer any
assets (including by way of a sale and leaseback transaction), other than sales,
leases, conveyances, dispositions or other transfers in the ordinary course of
business, if the assets:
(x) have a Fair Market Value in excess of $500,000 or
(y) are sold or otherwise disposed of for net proceeds in excess of
$500,000 or
(z) include the Company's rights under the Xxxxxxx Agreement (each of
the foregoing, an "Asset Sale"), unless, in each case:
(a) no Event of Default exists or would occur as a result of
the Asset Sale;
(b) the Company receives consideration at the time of such
Asset Sale at least equal to the fair market value of
the assets sold or otherwise disposed of; and
(c) at least 75% of the consideration therefor received by the
Company is in the form of cash.
3. Prepayment of this Note.
3.1 Prepayment Triggered in Fiscal 2003. If the Consolidated
EBITDA of the Parent and its Subsidiaries exceeds $25 million for the Parent's
fiscal year ending on the first Saturday after January 31, 2004 (or, if Parent
does not have a fiscal year ending on such date, for the 12-month period ending
January 31, 2004), the Company shall prepay a portion of the outstanding
principal balance of this Note in an amount equal to (i) 20% of the aggregate
principal amount outstanding on this Note as of January 6, 2003 (the "Prepayment
Amount"), plus accrued and unpaid interest thereon to the date of prepayment, on
or before June 6, 2004 and (ii) in an amount equal to the Prepayment Amount plus
accrued and unpaid interest thereon to the date of prepayment, on or before June
6, 2005.
3.2 Prepayment Triggered in Fiscal 2004. If no prepayment
obligation has been triggered under Section 3.1 and the Consolidated EBITDA of
the Parent and its Subsidiaries exceeds $25 million for the Parent's fiscal year
ending on the first Saturday after January 31, 2005 (or, if Parent does not have
a fiscal year ending on such date, for the 12-month period ending January 31,
2005), the Company shall prepay a portion of the outstanding principal balance
of this Note in an amount equal to 20% of the aggregate principal amount
outstanding on this Note as of January 6, 2004, plus accrued and unpaid interest
thereon to the date of prepayment, on or before June 6, 2005.
5
3.3 Prepayment Triggered by Securities Offering. In the event
that the Company or Parent shall receive net cash proceeds from the closing of a
sale of debt or equity securities of the Company or Parent (the "Cash
Proceeds"), in excess of $5,000,000, the Company shall prepay, an aggregate
principal amount of Notes, which, after addition of any accrued and unpaid
interest thereon to the date of prepayment, is equal to the amount of such Cash
Proceeds not more than 30 calendar days after such receipt. Notwithstanding the
foregoing, the Company shall not be required to prepay the Notes from any
proceeds from the closing of a sale of debt or equity securities of the Company
or Parent 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.
3.4 Prepayment Triggered by Asset Sale. In the event that the
Company shall receive net cash proceeds from an Asset Sale ("Asset Sale
Proceeds"), the Company shall prepay an aggregate principal amount of Notes,
which, after addition of any accrued and unpaid interest thereon to the date of
prepayment, is equal to the amount of the Asset Sale Proceeds not more than 30
calendar days after such receipt unless, within 30 days of receipt of such Asset
Sale Proceeds, such Asset Sale Proceeds are used to repay the Xxxxx
Indebtedness.
3.5 Prepayment on Change of Control. No more than 30 days
following a Change of Control, the Company shall prepay the entire principal
amount outstanding under this Note. As used herein, (x) the term "Change of
Control" means the occurrence of any of the following: (i) the adoption of a
plan relating to the liquidation or dissolution of Parent or the Company, (ii)
any Person or group (as such term is used in Section 13(d)(3) and 14(d)(2) of
the Exchange Act) is or becomes the beneficial owner (as defined in Rules 13d-3
and 13d-5 under the Exchange Act (or any successor rules)), directly or
indirectly, of more than 50% of the total voting stock of Parent or the Company,
other than in connection with a merger, consolidation or acquisition of assets
in which Xxxxx Xxxxxxxx Investment Management affiliates do not sell, transfer
or otherwise dispose of any equity security or convertible debt security of
Parent or the Company or (iii) the first day on which a majority of the members
of the Board of Directors of the Company are not Continuing Directors and (y)
the term "Continuing Director" means, as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on January 6, 2002 or (ii) was nominated for election or
elected to such Board of Directors with the affirmative vote of a majority of
the Continuing Directors who were members of such Board at the time of such
nomination or election.
3.6 Prepayment by Indemnity Credit or Due to Failure to
Transfer Leases. In the event (i) the Holder shall be required to make any
payments pursuant to Article 13 of the Agreement and the Holder elects in
accordance with the terms of the Agreement to have such payment obligation
satisfied by means of a reduction in the principal amount of the Notes and so
notifies the Company in writing (an "Indemnity Credit Prepayment Notice") or
(ii) the Holder shall fail to transfer any leases for Operated Stores in
accordance with the Operating Agreement among the Company, Parent, F.A.O.
Xxxxxxx, Quality Fulfillment Services, Inc. and Royal Vendex KBB N.V. dated as
of January 6, 2002, by the date set for such transfer (the "Lease Transfer
Deadline"), on the fifth Business Day following the receipt of such Indemnity
Credit Payment Notice by the Company or the passing of such Lease Transfer
Deadline (the "Deemed Prepayment Date"), the Company shall be deemed to have
6
prepaid an amount which, after addition of the accrued and unpaid interest
thereon through the Deemed Prepayment Date, is equal to (A) in the case of an
indemnity obligation, the amount specified in the Indemnity Credit Prepayment
Notice which shall be not more than 50% of the amount of such indemnity
obligation or (B) in case of the passing of a Lease Transfer Deadline, the
amount calculated under the Operating Agreement. Any such prepayment shall be
noted on the schedule of prepayments and adjustments attached to this Note,
however, failure to make such notation shall have no effect on the actual
principal amount of this Note at any time outstanding. On and after any such
prepayment, interest shall cease to accrue on the principal amount of this Note
so prepaid.
3.7 Notice to Holder. If any event occurs that requires the
Company to prepay all or a portion of this Note, the Company shall send notice
of such event to the Holder not less than 10 days prior to the date such
prepayment is required at such Holder's address of record by first class mail,
postage prepaid. Such notice will identify the event, the aggregate principal
amount of this Note to be prepaid, the prepayment date, the paragraph of this
Note under which the prepayment is to be made and that, provided the prepayment
amount is timely paid, the aggregate principal amount of this Note to be prepaid
shall cease to accrue interest from and after the prepayment date.
3.8 Effect of Notice. Once notice of prepayment is mailed,
that portion of the principal amount of this Note to be prepaid shall become due
and payable on the prepayment date and, provided the prepayment amount is timely
paid, the aggregate principal amount of this Note to be prepaid shall cease to
accrue interest from and after the prepayment date.
3.9 Application of Prepayment. Any prepayment of this Note
shall be applied first to pay any accrued and unpaid interest on this Note to
the date of prepayment and thereafter to the remaining principal balance of this
Note.
4. Payment Suspension. Notwithstanding anything in this Note to the
contrary, to the extent that the Company and the Holder dispute the amount of
any indemnity payment alleged to be due from the Holder to the Company pursuant
to and in accordance with the Agreement, then the Company may suspend payment
under the Notes (other than any payment due by reason of the prior occurrence of
an Event of Default) up to the net amount of such indemnity payments in dispute
under the Agreement until such dispute is resolved and such suspension shall not
be deemed an Event of Default.
5. Transfer; Registration; Replacement. Upon surrender of this Note for
registration of transfer or assignment, duly endorsed, or accompanied by a
written instrument of transfer or assignment duly executed, by the registered
Holder hereof or such Holder's attorney duly authorized in writing, a new Note
for a like principal amount shall be issued to, and, at the option of the
Holder, registered in the name of, the transferee or assignee. The Company may
deem and treat the person in whose name this Note is registered as the Holder
and owner hereof for the purpose of receiving payments and for all other
purposes whatsoever, and the Company shall not be affected by any notice to the
contrary.
7
6. Miscellaneous.
6.1 Organization and Authority. The Company represents and
warrants that the Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, and has all necessary
power to issue and perform its obligations under this Note.
6.2 Authorization. The Company represents and warrants that
the execution and delivery of this Note, and the performance of the terms
hereof, have been duly authorized by all necessary corporate action on the part
of the Company and will not conflict with or result in a breach of the
certificate of incorporation or bylaws of the Company. The Company represents
and warrants that this Note constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms except as
limited by bankruptcy and insolvency laws and other laws affecting the rights of
creditors generally.
6.3 Definitions.
(a) "Consolidated EBITDA" shall mean consolidated earnings
from continuing operations (excluding extraordinary items), before interest,
taxes, depreciation and amortization, each as determined in accordance with
GAAP.
(b) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended (or any successor act), and the rules and regulations
promulgated thereunder.
6.4 Notices. All notices to be given under this Note shall be
in writing and shall be given either personally, by reputable private delivery
service, by regular first-class mail or certified mail return receipt requested,
by fax, or email, addressed to the parties at the addresses shown below, or at
any other address designated in writing by one party to the other party. All
notices shall be deemed to have been given upon delivery in the case of notices
personally delivered, or at the expiration of two business days following
delivery to the private delivery service, or three business days following the
deposit thereof in the United States mail, with postage prepaid or on the first
business day of receipt in the case of notices sent by fax or email.
If to Holder: At its address set forth on the
records of the Company which, until
changed as set forth herein shall be:
x/x Xxxxx Xxxxxx XXX X.X.
Xx Xxxxxxx 0, XX-0000
Postbus 7997, 1008, AD
Amsterdam, The Netherlands
Attention: Xxxxxx Xxxxx/Xxxx ter Hark
Tel: 00.00.0000.000
Fax: 00.00.0000.000
Email: xxxx.xxx.xxxx@xxxxxxxxx.xx
with required copy to (which, in and of
itself, shall not constitute notice):
8
Kronish Xxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxxxxx@xxxxxxx.xxx
If to Company to:
Toy Soldier, Inc.
00000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Legal
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxx@xxxxxxxxxx.xxx
with required copy to (which, in and of
itself, shall not constitute notice):
Fulbright & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
Email: xxxx@xxxxxxxxx.xxx
6.5 Amendment; Successors and Assigns. This Note may not be modified or
amended, nor may any rights hereunder be waived, except in a writing signed by
the party against whom enforcement of the modification, amendment or waiver is
sought. This Note shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. The Company's
obligations under this Note may not be assigned or transferred by the Company
without the prior written consent of the registered Holder hereof or thereof,
except in connection with a merger permitted by Section 2.2. This Note may not
be assigned by the initial Holder prior to termination of the Operating
Agreement.
6.6 Governing Law. This Note shall be governed by, and
shall be construed and enforced in accordance with, the internal laws of the
State of New York, without regard to conflicts of laws principles.
[Remainder of Page Intentionally Left Blank]
9
IN WITNESS WHEREOF, the undersigned has caused this Note to be duly
executed on its behalf as of the date first hereinabove set forth.
TOY SOLDIER, INC.
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
President and Chief Executive Officer
10
Schedule of Principal Prepayments and Adjustments
Amount of Principal Aggregate Principal Amount
Prepayment or of Note after
Date Adjustment Prepayment or Adjustment
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