CONTINUING GUARANTY
Exhibit 10.3
EXECUTION VERSION
December 19, 2019
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in consideration of credit and/or financial accommodations heretofore or hereafter from time to time made or
granted to BETTER CHOICE COMPANY INC., a Delaware corporation (“Borrower”), by BRIDGING FINANCE INC., as Administrative Agent (“Agent”), and the Lenders under the Facilities Agreement (as defined below) and their successors and
assigns (collectively the “Creditors”), the undersigned Guarantors (each, a “Guarantor” and collectively, jointly and severally, the “Guarantors”) hereby furnishes its continuing guaranty (this “Guaranty”) of the
Guaranteed Obligations (as hereinafter defined) as follows (capitalized terms used herein shall have the meaning assigned to them herein, and if not herein defined shall have the meaning assigned to them in the Facilities Agreement (as defined
below)):
1. Guaranty. Each Guarantor hereby absolutely and
unconditionally guarantees, as a primary obligor and as a guaranty of payment and performance and not merely as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or
otherwise, and at all times thereafter, of any and all existing and future indebtedness and liabilities of every kind, nature and character, direct or indirect, absolute or contingent, liquidated or unliquidated, voluntary or involuntary and
whether for principal, interest, premiums, fees indemnities, damages, costs, expenses or otherwise, of Borrower to the Creditors arising under that certain Loan Facilities Letter Agreement dated as of December 19, 2019 between Borrower, the
Obligors party thereto, Agent, and the Lenders from time to time party thereto (the “Facilities Agreement”), the Credit Documents and any instruments, agreements or other documents of any kind or nature
now or hereafter executed in connection with the Credit Documents (including all renewals, extensions, amendments, refinancings and other modifications thereof (howsoever fundamental) and all reasonable costs, attorneys’ fees and expenses incurred
by the Creditors in connection with the collection or enforcement thereof), and whether recovery upon such indebtedness and liabilities may be or hereafter become unenforceable or shall be an allowed or disallowed claim under any proceeding or case commenced by or against any Guarantor or Borrower under the Bankruptcy Code (Title 11, United States Code), any successor statute or any other liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, judicial management, scheme of arrangement, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and
affecting the rights of creditors generally (collectively, “Debtor Relief Laws”), and including interest that accrues after the commencement by or against
any Borrower of any proceeding under any Debtor Relief Laws (subject to the proviso in this sentence, collectively, the “Guaranteed Obligations”); provided that, the liability of the Guarantors hereunder shall be limited to an
aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any applicable state law or other
applicable law. Agent’s books and records showing the amount of the Guaranteed Obligations shall be admissible in evidence in any action or proceeding, and, absent any manifest error therein, shall be binding upon the Guarantors and conclusive for
the purpose of establishing the amount of the Guaranteed Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Guaranteed Obligations or any instrument or agreement evidencing any
Guaranteed Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Guaranteed Obligations which might otherwise constitute a defense
to the obligations of the Guarantors under this Guaranty, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing. Anything contained herein to the contrary
notwithstanding, the obligations of each Guarantor hereunder at any time shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance
under Section 548 of the Bankruptcy Code (Title 11, United States Code) or any comparable provisions of any similar federal or state law.
2. No Setoff or Deductions; Taxes; Payments. Each Guarantor shall make all payments hereunder without
setoff or counterclaim and free and clear of and without deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings, compulsory loans, restrictions or conditions of any nature now or hereafter imposed or levied by any
jurisdiction or any political subdivision thereof or taxing or other authority therein unless such Guarantor is compelled by law to make such deduction or withholding. If any such obligation (other than any such obligation arising with respect to
taxes based on or measured by the income or profits of the Creditors) is imposed upon any Guarantor with respect to any amount payable by it hereunder, such Guarantor will pay to Agent, for the ratable benefit of all affected Creditors, on the date
on which such amount is due and payable hereunder, such additional amount in U.S. dollars as shall be necessary to enable the Creditors to receive the same net amount which the Creditors would have received on such due date had no such obligation
been imposed upon such Guarantor. Each Guarantor will deliver promptly to Agent certificates or other valid vouchers for all taxes or other charges deducted from or paid with respect to payments made by such Guarantor hereunder. The obligations of the Guarantors under this Section 2 shall survive the payment in full of the Guaranteed Obligations and termination of
this Guaranty. At Agent’s option, all payments under this Guaranty shall be made in the United States. The obligations hereunder shall not be affected by any acts of any legislative body or governmental authority affecting Borrower,
including but not limited to, any restrictions on the conversion of currency or repatriation or control of funds or any total or partial expropriation of Borrower’s property, or by economic, political, regulatory or other events in the countries
where Borrower is located.
3. Tax Indemnification. Without prejudice to Section 2 (No Setoff or Deductions; Taxes;
Payments) if any Creditor is required to make any payment of or on account of tax on or in relation to any sum received or receivable under this Guaranty (including any sum deemed for purposes of tax to be received or receivable by such Creditor
whether or not actually received or receivable) or if any liability in respect of any such payment is asserted, imposed, levied or assessed against any Creditor, the Guarantors shall, within three Business Days of demand of Agent or such Creditor,
promptly indemnify such Creditor for any loss or liability suffered as a result, together with any interest, penalties, costs and expenses payable or incurred in connection therewith, provided that this Section 3 shall not apply to:
| (i) |
any Tax imposed on and calculated by reference to the net income actually received or receivable by the Creditors (but, for the avoidance of doubt, not including any sum deemed for purposes of Tax to be received or receivable by the
Creditors but not actually receivable) by the jurisdiction in which any Creditor is incorporated; or
|
| (ii) |
any Tax imposed on and calculated by reference to the net income of the facility office of any Creditor actually received or receivable by any Creditor (but, for the avoidance of doubt, not including any sum deemed for purposes of
tax to be received or receivable by such Creditor but not actually receivable) by the jurisdiction in which its facility office is located.;
|
| (iii) |
If any Creditor intends to make a claim under this Section 3 it shall notify Borrower of the event giving rise to the claim.
|
4. Rights of Creditors. Each Guarantor consents and
agrees that the Creditors may, at any time and from time to time, without notice or demand to the Guarantors, and without affecting the enforceability or continuing effectiveness hereof: (a) amend, extend, renew, compromise,
discharge, accelerate or otherwise change the time for payment or the terms of the Guaranteed Obligations or any part thereof in accordance with the terms of the Guaranteed Obligations; (b) take, hold, exchange, enforce, waive, release, fail to
perfect, sell, or otherwise dispose of any security for the payment of this Guaranty or any Guaranteed Obligations; (c) apply such security and direct the order or manner of sale thereof as Agent in its sole discretion may determine; and (d)
release or substitute one or more of any endorsers or other Guarantors of any of the Guaranteed Obligations. Without limiting the generality of the foregoing, each Guarantor consents to the taking of, or failure to take, any action which might in
any manner or to any extent vary the risks of the Guarantors under this Guaranty or which, but for this provision, might operate as a discharge of any Guarantor.
5. Certain Waivers. Each Guarantor waives (a) any defense arising by reason of any disability or other
defense of Borrower or any other Guarantor, or the cessation from any cause whatsoever (including any act or omission of any Creditor) of the liability of Borrower; (b) any defense based on any claim that any Guarantor’s obligations exceed or are
more burdensome than those of Borrower; (c) the benefit of any statute of limitations affecting any Guarantor’s liability hereunder; (d) any right to require any Creditor to proceed against Borrower, proceed against or exhaust any security for the
Guaranteed Obligations, or pursue any other remedy in any Creditor’s power whatsoever; (e) any benefit of and any right to participate in any security now or hereafter held by Agent or any other Creditor; and (f) to
the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating the Guarantors or sureties. Each Guarantor expressly waives all setoffs
and counterclaims and all presentments, 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 Guaranteed Obligations, and all notices of acceptance of this Guaranty or of the existence, creation, or incurrence of new or additional Guaranteed Obligations.
6. Obligations Independent. The obligations of each Guarantor hereunder are
those of primary obligor, and not merely as surety, and are independent of the Guaranteed Obligations and the obligations of any other Guarantor, and a separate action may be brought against any Guarantor to enforce this Guaranty whether or not
Borrower or any other person or entity is joined as a party.
7. Subrogation. No Guarantor shall exercise any right of
subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes
under this Guaranty until all of the Guaranteed Obligations and any amounts payable under this Guaranty have been paid and performed in full and any commitments of the Creditors or facilities provided by the Creditors
with respect to the Guaranteed Obligations are terminated. If any amounts are paid to any Guarantor in violation of the foregoing limitation, then such amounts shall be held in trust for the benefit of the Creditors and shall forthwith be paid
to Agent to reduce the amount of the Guaranteed Obligations, whether matured or unmatured.
8. Termination; Reinstatement. This Guaranty is a continuing
and irrevocable guaranty of all Guaranteed Obligations now or hereafter existing and shall remain in full force and effect until all Guaranteed Obligations and any other amounts payable under this Guaranty are paid in full in cash and any
commitments of the Creditors or facilities provided by the Creditors with respect to the Guaranteed Obligations are terminated. Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be revived, as the case may
be, if any payment by or on behalf of Borrower or any Guarantor is made, in respect of the Guaranteed Obligations and such payment or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement entered into by Agent in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Laws, all as if
such payment had not been made and whether or not Agent is in possession of or has released this Guaranty and regardless of any prior revocation, rescission, termination or reduction. The obligations of the Guarantors under this Section 8 shall survive termination of this Guaranty.
9. Subordination. Each Guarantor hereby subordinates the
payment of all obligations and indebtedness of Borrower owing to the Guarantors, whether now existing or hereafter arising, including but not limited to any obligation of Borrower to any Guarantor as subrogee of Agent or resulting from any
Guarantor’s performance under this Guaranty, to the payment in full in cash of all Guaranteed Obligations, provided that any such payment may be made by Borrower to any Guarantor if no default then exists under the Facilities Agreement or would
result from such payment. If any Creditor so requests, any such obligation or indebtedness of Borrower to any Guarantor shall be enforced and performance received by such Guarantor as trustee for Agent and the proceeds thereof shall be paid over
to Agent on account of the Guaranteed Obligations, but without reducing or affecting in any manner the liability of such Guarantor under this Guaranty.
10. Stay of Acceleration. In the event that acceleration of
the time for payment of any of the Guaranteed Obligations is stayed, in connection with any case commenced by or against any Guarantor or Borrower under any Debtor Relief Laws or otherwise, all such amounts shall nonetheless be payable by such
Guarantor immediately upon demand by any Creditor.
11. Expenses. The Guarantors shall pay on Agent’s demand all
Creditors’ out-of-pocket expenses (including attorneys’ fees and expenses) in any way relating to the enforcement or protection of the Creditor’s rights under this Guaranty or in respect of the Guaranteed Obligations, including any incurred
during any “workout” or restructuring in respect of the Guaranteed Obligations and any incurred in the preservation, protection or enforcement of any rights of the Creditors in any proceeding any Debtor Relief Laws. The obligations of the
Guarantors under this Section 11 shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
12. Miscellaneous. No provision of this Guaranty may be waived, amended, supplemented or modified, except by a written instrument executed by Agent and the Guarantors. No failure by the Creditors to exercise, and no delay in exercising, any right, remedy or power hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy or power hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law or in equity. The unenforceability or invalidity of any provision of this Guaranty shall not affect the enforceability or validity of any other provision herein. Unless
otherwise agreed by Agent and the Guarantors in writing, this Guaranty is not intended to supersede or otherwise affect any other guaranty now or hereafter given by the Guarantors for the benefit of the Creditors or any term or provision thereof.
13. Condition of Borrower. Each Guarantor acknowledges and agrees that it has
the sole responsibility for, and has adequate means of, obtaining from Borrower and any other Guarantor such information concerning the financial condition, business and operations of Borrower and any other Guarantor as such Guarantor requires,
and that no Creditor has a duty, and no Guarantor is relying on any Creditor at any time, to disclose to any Guarantor any information relating to the business, operations or financial condition of Borrower or any other Guarantor (each Guarantor
waiving any duty on the part of the Creditors to disclose such information and any defense relating to the failure to provide the same).
14. Representations and Warranties. Each Guarantor represents and warrants that (a) this Guaranty (i) does
not violate any agreement, instrument, law, regulation or order applicable to any Guarantor, (ii) does not require the consent or approval of any person or entity, including but not limited to any governmental authority, or any filing or
registration of any kind and (iii) is the legal, valid and binding obligation of such Guarantor enforceable against such Guarantor in accordance with its terms, except to the extent that enforcement may be limited by applicable bankruptcy,
insolvency and other similar laws affecting creditors’ rights generally; and (b) in executing and delivering this Guaranty, each Guarantor (i) has, without reliance on the Creditors or any information received from the Creditors and based upon such
documents and information it deems appropriate, made an independent investigation of the transactions contemplated hereby and Borrowers, Borrowers’ business, assets, operations, prospects and condition, financial or otherwise, and any circumstances
which may bear upon such transactions, Borrowers or the obligations and risks undertaken herein with respect to the Guaranteed Obligations, (ii) has adequate means to obtain from Borrowers on a continuing basis information concerning Borrowers,
(iii) has full and complete access to the Credit Documents and any other documents executed in connection with the Credit Documents, and (iv) has not relied and will not rely upon any representations or warranties of the Creditors not embodied
herein or any acts heretofore or hereafter taken by the Creditors (including but not limited to any review by the Creditors of the affairs of Borrowers).
15. Indemnification and Survival. Without limitation on any other obligations of the Guarantors or remedies
of the Creditors under this Guaranty, each Guarantor shall, to the fullest extent permitted by law, indemnify, defend and save and hold harmless each Creditor from and against, and shall pay on demand, any and all damages, losses, liabilities, and
expenses (including attorneys’ fees) that may be suffered or incurred by any Creditor in connection with or as a result of any failure of any Guaranteed Obligations to be the legal, valid and binding obligations of Borrower enforceable against
Borrower in accordance with their terms. The obligations of the Guarantors under this Section 15 shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
16. Assignment. This Guaranty shall be binding on, and shall inure to the benefit of the Guarantors, each
Creditor, and their respective successors and assigns; provided that the Guarantors may not assign or transfer its rights or obligations under this Guaranty. Without limiting the generality of the foregoing, any Creditor may assign, sell
participations in or otherwise transfer its rights under the Credit Documents, as applicable, to any other person or entity, and the other person or entity shall then become vested with all the rights granted to such Creditor in this Guaranty or
otherwise.
17. Captions. The headings and captions in this Guaranty are for convenience only and shall not affect the
interpretation or construction of this Guaranty.
18. GOVERNING LAW; Assignment; Jurisdiction; Notices. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK. This Guaranty shall (a) bind each Guarantor and its successors and assigns, provided that no Guarantor may assign its rights or
obligations under this Guaranty without the prior written consent of Agent (and any attempted assignment without such consent shall be void), and (b) inure to the benefit of each Creditor and its successors and assigns and any Creditor may,
without notice to any Guarantor and without affecting any Guarantor’s obligations hereunder, assign, sell or grant participations in the Guaranteed Obligations and this Guaranty, in whole or in part. Each Guarantor hereby irrevocably (i) submits
to the non‑exclusive jurisdiction of any United States Federal or State court sitting in New York, New York in any action or proceeding arising out of or relating to this Guaranty, and (ii) waives to the
fullest extent permitted by law any defense asserting an inconvenient forum in connection therewith. Service of process by any Creditor in connection with such action or proceeding shall be binding on any Guarantor if sent to such Guarantor by
registered or certified mail at its address specified on Annex I attached hereto or such other address as from time to time notified by such Guarantor. Each Guarantor agrees that each Creditor may disclose to any assignee of or participant in,
or any prospective assignee of or participant in, any of its rights or obligations of all or part of the Guaranteed Obligations any and all information in such Creditor’s possession concerning such Guarantor, this Guaranty and any security for
this Guaranty. All notices and other communications to any Guarantor under this Guaranty shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier to such
Guarantor at its address set forth on Annex I attached hereto or at such other address in the United States as may be specified by such Guarantor in a written notice delivered to Agent at such office as Agent may designate for such purpose from
time to time in a written notice to such Guarantor.
19. WAIVER OF JURY TRIAL; FINAL AGREEMENT. TO THE EXTENT ALLOWED BY APPLICABLE
LAW, EACH GUARANTOR AND EACH CREDITOR EACH IRREVOCABLY WAIVES TRIAL BY JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING ON, ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE GUARANTEED OBLIGATIONS. THIS GUARANTY REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
20. Foreign Currency. If any claim arising under or
related to this Guaranty is reduced to judgment denominated in a currency (the “Judgment Currency”) other than U.S. Dollars (the “Obligations Currency”), the judgment shall be for the equivalent in the Judgment Currency of the amount
of the claim denominated in the Obligations Currency included in the judgment, determined as of the date of judgment. The equivalent of any Obligations Currency amount in any Judgment Currency shall be calculated at the spot rate for the purchase
of the Obligations Currency with the Judgment Currency quoted by Agent in the place of Agent’s choice at or about 8:00 a.m. on the date for determination specified above. Guarantor shall indemnify the Creditors and hold the Creditors harmless from
and against all loss or damage resulting from any change in exchange rates between the date any claim is reduced to judgment and the date of payment thereof by the Guarantors or any failure of the amount of any such judgment to be calculated as
provided in this Section 20.
21. Counterparts. This Guaranty may be executed in any number of counterparts, all of which taken together
shall constitute one agreement, and any of the parties hereto may execute this Guaranty by signing any such counterpart. Delivery of an executed counterpart of a signature page of this Guaranty by facsimile or other electronic transmission shall
be effective as delivery of a manually executed counterpart of this Guaranty.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this the undersigned has caused this Continuing Guaranty to be duly executed as of the date first above written.
|
HALO, PURELY FOR PETS INC.
|
||
|
By:
|
/s/ Xxxxxx xxx Xxxx
|
|
Name:
|
Xxxxxx xxx Xxxx
|
|
|
Title:
|
President & CEO
|
|
BONA VIDA, INC.
|
|
By:
|
/s/ Xxxxxx Xxxxx-Xxxxx
|
|
Name:
|
Xxxxxx Xxxxx-Xxxxx
|
|
|
Title:
|
CEO
|
|
TRUPET, LLC
|
||
|
By:
|
/s/ Xxxxxx Xxxxx-Xxxxx
|
|
Name:
|
Xxxxxx Xxxxx-Xxxxx
|
|
|
Title:
|
CEO
|
Signature Page to Better Choice Company – Continuing Guaranty
ANNEX I
Guarantor Addresses
Halo, Purely for Pets Inc.
12400 Race Track Rd
Tampa, FL 33626
Bona Vida, Inc.
164 Xxxxxxx Xx E
Oldsmar, FL 34677
Trupet, LLC
164 Xxxxxxx Xx E
Oldsmar, FL 34677
