CONFORMED COPY
SECURITIES PURCHASE AGREEMENT
by and between
THREE CITIES FUND II, L.P., THREE CITIES OFFSHORE II
L.P. and TERFIN INTERNATIONAL, LTD.
and
THE PURCHASERS LISTED HEREIN
as of March 14, 1997
THIS SECURITIES PURCHASE AGREEMENT is made as of this 14th day of
March, 1997, by and between the Purchasers listed on the signature pages hereof
(the "Purchasers") and Three Cities Fund II, L.P. ("Fund II"), Three Cities
Offshore II L.P. ("Offshore II") and Terfin International, Ltd. ("Terfin",
collectively with Fund II and Offshore II, the "Sellers").
W I T N E S S E T H
WHEREAS, each of Fund II, Offshore II and Terfin own certain equity
securities of Family Bargain Corporation, a Delaware corporation (the
"Company"), as more fully described herein (collectively, the "Equity
Securities").
WHEREAS, the parties desire for the Purchasers to purchase the
Equity Securities in accordance with the terms hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto, each intending to be legally bound, hereby agree
as follows:
1. PURCHASE AND SALE OF EQUITY SECURITIES. Fund II, Offshore II and
Terfin hereby agree to sell to the Purchasers, and the Purchasers hereby agree
to purchase from Fund II, Offshore II and Terfin, the Equity Securities as set
forth in Schedule 1 hereof. Fund II, Offshore II and Terfin shall deliver such
Equity Securities to the Purchasers, free and clear of all liens, security
interests, pledges, claims and encumbrances of every kind, nature and
description.
2. CONSIDERATION TO FUND II, OFFSHORE II AND TERFIN. As
consideration for the Equity Securities, the Purchasers will deliver on the
Closing
Date (as defined herein) to Fund II, Offshore II and Terfin the number of shares
of Series B Junior Convertible, Exchangeable Preferred Stock, par value $.01 per
share (the "Series B Preferred"), of the Company as set forth in Schedule 1
hereto (the "Stock Consideration").
3. REPRESENTATIONS AND WARRANTIES BY FUND II, OFFSHORE II AND
TERFIN. As material inducement for the Purchasers to enter into this Agreement,
each of Fund II, Offshore II and Terfin hereby jointly and severally represents
and warrants to the Purchasers as follows:
a. That it has full corporate or partnership, as the case may
be, power and authority to consummate the transactions contemplated by this
Agreement; that this Agreement constitutes the valid and binding obligation of
it, enforceable against it in accordance with its terms; that neither the
execution and delivery of this Agreement, nor the consummation of the
transactions contemplated herein in the manner herein provided, will violate any
agreement to which it is a party or by which it is bound, or any law, order,
decree or judgment applicable to it; and that any authorization, approval or
consent of any third party that is required for the lawful execution, delivery
and performance of this Agreement by it has been obtained.
b. That it transfers the Equity Securities attributed to it on
Schedule 1 attached hereto, free and clear of all liens, security interests and
claims and encumbrances of every kind, nature and description.
4. REPRESENTATIONS AND WARRANTIES BY THE PURCHASERS. As material
inducement for the Sellers to enter into this Agreement, the Purchasers hereby
represent and warrant to the Sellers as follows:
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a. That the Purchasers have full corporate or trust, as the
case may be, power and authority to consummate the transactions contemplated by
this Agreement.
b. That this Agreement constitutes the legal, valid, and
binding obligations of the Purchasers, enforceable against them in accordance
with their respective terms.
c. That neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated herein in the manner
provided herein, will violate any agreement to which any Purchaser is a party or
by which it or any of its property or assets is bound, or any law, order, decree
or judgment applicable to any Purchaser, or any provision of their certificate
of incorporation or by-laws or similar organizational documents, and that no
authorization, approval or consent of any third party is required for the lawful
execution, delivery and performance of this Agreement by any Purchaser.
d. That the execution, delivery, and performance of this
Agreement has been duly authorized by all necessary corporate or trust action,
as the case may be, on the part of each Purchaser.
e. That it transfers the Stock Consideration due from and
payable by it as listed on Schedule 1 attached hereto, free and clear of all
liens, security interests and claims and encumbrances of every kind, nature and
description.
f. That the Purchasers are purchasing the Equity Securities
for purposes of investment and not with a view toward the distribution thereof.
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5. TERMINATION. This Agreement may be terminated by Fund II,
Offshore II or Terfin or the Purchasers, if the Assignment and Assumption and
Joinder Agreement (as defined herein) is terminated.
6. DELIVERIES.
a. FUND II, OFFSHORE II AND TERFIN DELIVERIES. On the Closing
Date, Fund II, Offshore II and Terfin have delivered or caused to be delivered
to the Purchasers certificates for the Equity Securities, endorsed by the holder
thereof in blank or with stock transfer powers executed by the holder thereof in
blank attached.
b. PURCHASERS DELIVERY. On the Closing Date, the Purchasers
shall deliver to Fund II, Offshore II and Terfin the certificates for the Stock
Consideration, endorsed by the holder thereof in blank or with stock powers
executed by the holder thereof in blank attached.
7. MISCELLANEOUS.
a. INDULGENCES, ETC. Neither the failure nor any delay on the
part of any party to execute any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
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b. CONTROLLING LAW. THIS AGREEMENT AND ALL QUESTIONS RELATING
TO ITS VALIDITY, INTERPRETATION, PERFORMANCE AND ENFORCEMENT (INCLUDING, WITHOUT
LIMITATION, PROVISIONS CONCERNING LIMITATIONS OF ACTIONS), SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
c. NOTICES. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received only when
personally delivered, or on the next business day when deposited with a
reputable overnight courier service, such as Federal Express, for delivery to
the intended addressee. All notices shall be addressed as follows:
(i) If to the Purchasers, as provided on Schedule 2
hereto;
(ii) If to the Sellers:
c/o Three Cities Research, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn.: J. Xxxxxxx Xxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Any person may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this
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subparagraph for the giving of notice, and such alteration shall become
effective upon actual receipt.
d. BINDING NATURE OF AGREEMENT; NO ASSIGNMENT. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, personal representatives, successors and assigns,
except that no party may assign or transfer its rights nor delegate its duties
under this Agreement without the prior written consent of the other parties
hereto.
e. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in counterparts, each of which shall be deemed to be an original as against the
party whose signature appears thereon, and both of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one (1) or more counterparts hereof, individually or taken together, shall bear
the signatures of each of the parties reflected hereon as the signatories.
f. PROVISIONS SEPARABLE. The provisions of this Agreement are
independent of and separable from each other, and no provisions shall be
affected or rendered invalid or unenforceable by virtue of the fact that for any
reason any other or others of them may be invalid or unenforceable in whole or
in part.
g. PARAGRAPH HEADINGS. The Paragraph and subparagraph headings
in this Agreement are for convenience of reference only; they form no part of
this Agreement and shall not affect its interpretation.
h. GENDER, ETC. Words used herein, regardless of the number
and gender specifically used, shall be deemed and construed to include any
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other number, singular or plural, and any other gender, masculine, feminine or
neuter, as the context indicates is appropriate.
i. NUMBER OF DAYS. In computing the number of days for
purposes of this Agreement, only business days shall be counted.
j. EXHIBITS AND SCHEDULES. All Schedules attached hereto
are hereby incorporated by reference into, and made a part of, this Agreement.
k. ENTIRE AGREEMENT. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter
hereof, and supersede all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein and therein contained. The express terms hereof control and
supersede any course of performance and/or usage of the trade inconsistent with
any of the terms hereof. This Agreement may not be modified or amended other
than by an agreement in writing.
l. CLOSING. Subject to the terms and conditions of this
Agreement, the closing (the "Closing") with respect to this Agreement shall
occur concurrently with the execution and delivery of the Assignment and
Assumption and Joinder Agreement, dated as of March 14, 1997 (the "Assignment
and Assumption Agreement"), among the Persons listed on the signature pages
thereto under the caption "Assignors", the Persons listed on the signature pates
thereto under the caption "Assignees" and the Company, at the offices of Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or at such other date and such other place as the parties hereto
shall agree (the "Closing Date").
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the date first above written.
Purchasers: THE BANK OF NEW YORK AS TRUSTEE
FOR THE EMPLOYEES RETIREMENT
PLAN OF THE BROOKLYN UNION GAS
COMPANY
By:/S/ XXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
BOSTON SAFE DEPOSIT & TRUST
COMPANY, TRUSTEE FOR US WEST
PENSION TRUST
By:/S/ XXX XXXXXX
-----------------------------------
Name: Xxx Xxxxxx
Title: Officer
BOSTON SAFE DEPOSIT & TRUST
COMPANY, TRUSTEE FOR US WEST
BENEFIT ASSURANCE TRUST
By:/S/ XXX XXXXXX
-----------------------------------
Name: Xxx Xxxxxx
Title: Officer
By:/S/ XXXX XXXXX
-----------------------------------
Xxxx X. Xxxxx III
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Sellers: THREE CITIES FUND II, L.P.
By: TCR Associates, L.P.,
as General Partner
By: /S/ WILLEM X.X. XX XXXXX
-----------------------------------
Name: Willem X.X. xx Xxxxx
Title: General Partner
THREE CITIES OFFSHORE II C.V.
By: TCR Associates Offshore, L.P.,
as General Partner
By: /S/ J. XXXXXXX XXXXX
-----------------------------------
Name: J. Xxxxxxx Xxxxx
Title: General Partner
TERFIN INTERNATIONAL LTD.
By: /S/ J. XXXXXXX XXXXX
-----------------------------------
Name: J. Xxxxxxx Xxxxx
Title: Attorney-In-Fact
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SCHEDULE 1
EQUITY SECURITIES SOLD AND CONSIDERATION THEREFOR
-------------------------------------------------
Shares of
Common Series B
Stock Preferred Received
SELLER SOLD AS CONSIDERATION
------ ---- ----------------
Three Cities Fund II, L.P. 37,916 125
Three Cities Offshore II C.V 64,121 212
Terfin International, Ltd. 25,509 84
------- -------
TOTAL 127,546 421
EQUITY SECURITIES PURCHASED
Shares of
Common Series B
Stock Preferred Paid
PURCHASER BOUGHT AS CONSIDERATION
--------- ------ ----------------
The Bank of New York as Trustee for the Employee
Retirement Plan of the Brooklyn Union Gas Company 77,772 257
Boston Safe Deposit & Trust Company, Trustee
for US WEST Pension Trust 34,997 116
Boston Safe Deposit & Trust Company, Trustee
for US WEST Benefit Assurance Trust 11,666 38
Xxxx X. Xxxxx III 3,111 10
------- -------
TOTAL 127,546 421
SCHEDULE 2
ADDRESS OF PURCHASERS
The Employees Retirement Plan
of the Brooklyn Union Gas Company
c/o Xxxxxx Xxxxxxx
Brooklyn Union Gas Co.
Xxx Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Boston Safe Deposit & Trust Company,
Trustee for US West Pension Trust
c/o Xxxx Xxxxxx
Xxxxxx Xxxxx Alternative Investments
Xxx Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Boston Safe Deposit & Trust Company,
Trustee for US West Benefit Assurance Trust
c/o Xxxx Xxxxxx
Xxxxxx Xxxxx Alternative Investments
Xxx Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxx X. Xxxxx III
Xxxxxx & Xxxxxxx
Two World Financial Xxxxxx
Xxxxx X, 00xx Xxxxx
Xxx Xxxx, XX 00000
