CONFORMED COPY
ASSIGNMENT AND ASSUMPTION AND JOINDER AGREEMENT
AGREEMENT, dated as of March 14, 1997, among the Persons listed on
the signature pages hereto under the caption "Assignors" (collectively, the
"Assignors"), the Persons listed on the signature pages hereof under the caption
"Assignees" (the "Assignees") and Family Bargain Corporation, a Delaware
corporation (the "Company").
WHEREAS, pursuant to that certain Securities Purchase Agreement,
dated December 30, 1996, as supplemented by that certain Joinder Agreement,
dated as of February 20, 1997, made by the individuals and institutions named
under the caption "Designees" on the signature pages thereof, and as amended by
that certain Amendment to Securities Purchase Agreement, dated as of March 10,
1997, among Three Cities Fund II, L.P., Three Cities Offshore II C.V., Terfin
International, Ltd. and the Company (the "Securities Purchase Agreement"), among
the Company and the Purchasers named therein, the Purchasers have the right to
purchase from the Company, ratably in proportion to the number of Securities
owned by each Purchaser, at the same price and on the same terms and conditions
as the Securities Purchase Agreement, at any time up to and including April 10,
1997, up to 5,000 additional shares of Series B Preferred (the "Additional
Securities").
WHEREAS, the Assignors desire to assign their right to purchase
4,100 shares of the Additional Securities to the Assignees as set forth opposite
each Assignee's name on Exhibit A attached hereto pursuant to Section 10.2 of
the Securities Purchase Agreement.
WHEREAS, each Assignee desires to (i) accept such assignment, (ii)
exercise its right to purchase such amount of Additional Securities as set forth
opposite such Assignee's name on Exhibit A pursuant to Section 2.4 of the
Securities Purchase Agreement and (iii) be deemed to be a Purchaser under the
Securities Purchase Agreement and to be bound by the terms and conditions of the
Securities Purchase Agreement as provided for herein.
WHEREAS, the Company desires to sell to the Assignees such amount of
Additional Securities upon the terms and conditions in the Securities Purchase
Agreement.
NOW, THEREFORE, for good and valuable consideration, the sufficiency
of which hereby is acknowledged, the parties hereto agree as follows (unless
otherwise defined herein, terms defined in the Securities Purchase Agreement and
used herein shall have the meanings given to them in the Securities Purchase
Agreement):
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(a) Each of the Assignors hereby assigns, transfers and conveys to
each Assignee, and each Assignee hereby accepts and assumes, all right, title
and interest the Assignors have in, and with respect to, the option contained in
Section 2.4 of the Securities Purchase Agreement to purchase such amount of
Additional Securities as set forth on Exhibit A. Each Assignee hereby assumes
and agrees to perform all of the Purchaser's obligations and liabilities under
or related to the Securities Purchase Agreement with respect thereto;
(b) By execution hereof, each Assignee (i) hereby exercises the
option under Section 2.4 of the Securities Purchase Agreement with respect to
the amount of Additional Securities set forth on Exhibit A, (ii) shall be deemed
to be a Purchaser for all purposes under the Securities Purchase Agreement and
shall have all the rights and obligations of a Purchaser thereunder, except
pursuant to Section 2.3 thereof, and (iii) shall be deemed to be a Holder (as
defined in the Registration Rights Agreement) for all purposes under the
Registration Rights Agreement and shall have all the rights and obligations of a
Holder thereunder;
(c) Each Assignee hereby acknowledges that it has received and
reviewed, and is relying upon in making its investment decision, a copy (in
executed form) of (i) the Securities Purchase Agreement (including, without
limitation, all amendments, supplements and other modifications thereto), (ii)
the Disclosure Letter to the Securities Purchase Agreement, (iii) each of the
Transaction Agreements referred to therein (including, without limitation, all
amendments, supplements and other modifications thereto), (iv) all documents,
agreements and certificates (including, without limitation, all amendments,
supplements and other modifications thereto) related to the Securities Purchase
Agreement and the Transaction Agreements delivered at the Initial Closing, (v)
all documents (including, without limitation, all amendments, supplements and
other modifications thereto) delivered on January 13, 1997 related to the
closing of the Separation Agreement, (vi) the Company's Annual Report on Form
10-K for the year ended January 27, 1996 (as amended by the Company's Form
10-K/A, dated May 14, 1996), as filed with the SEC (including, in each case, all
exhibits and schedules thereto and documents incorporated by reference therein)
and (vii) the Company's Quarterly Report on Form 10-Q for each of the quarters
ended April 27, 1996, July 27, 1996 and October 26, 1996, as filed with the SEC;
(d) Each Assignee agrees that it shall (i) be bound by all
covenants, agreements, acknowledgments and other terms and provisions (except
the representations and warranties of Purchasers other than as expressly
provided herein) applicable to it, as a Purchaser pursuant to the Securities
Purchase Agreement and the other Transaction Agreements to the same extent, and
in the same manner, as if it were a direct party thereto; PROVIDED, HOWEVER, it
shall be bound by, and does hereby make with respect to itself, the
representations and warranties of Purchasers contained in Sections 5.1, 5.2,
5.3, 5.4 and 5.5 of the Securities Purchase Agreement, and (ii)
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perform all obligations required of it pursuant to the Securities Purchase
Agreement and such Transaction Agreements;
(e) Each Assignee hereby acknowledges that no other representations
and warranties are being made to it as a Purchaser by the Company other than
those made in Section 4 of the Securities Purchase Agreement to the same extent,
and in the same manner as if it (in its capacity as a Purchaser) were a direct
party thereto; and
(f) Each Assignee hereby acknowledges that the Assignors are not
making any representations and warranties to the Assignees and have no
liabilities or obligations to the Assignees pursuant to the Securities Purchase
Agreement, this Agreement or otherwise.
This Agreement shall become effective upon the last to occur of (a)
the due execution and delivery of this Agreement by all parties hereto, (b) the
delivery to each Assignee of certificates representing such number of Additional
Securities as are set forth opposite such Assignee's name on Exhibit A hereto,
each registered in the name of such Assignee or its nominees, and (c) payment of
the Purchase Price Per Security with respect to such amount of Additional
Securities by wire transfer of immediately available funds to an account or
accounts previously designated by the Company.
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Assignors and the Assignees.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
This Agreement may be executed in counterparts, each of which shall
be deemed to be an original and all of which together shall be deemed to be one
and the same instrument.
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IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed and delivered in New York, New York, United States of America by
its proper and duly authorized officer as of the date first written above.
FAMILY BARGAIN CORPORATION
By:/S/ XXXXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President & CEO
ASSIGNORS: THREE CITIES FUND II, L.P.
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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 Offshore Associates, 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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XXXXXXXXXXXX CHARITABLE
PARTNERS B
By:/S/ XXXXXXXXX X. XXXXXXXXXXXX
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxxxx
Title: Managing Partner
ASSIGNEES: 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/ XXXXXX XXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Officer
BOSTON SAFE DEPOSIT & TRUST
COMPANY, TRUSTEE FOR US WEST
BENEFIT ASSURANCE TRUST
By:/S/ XXXXXX XXXXXX
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Officer
By:/S/ XXXX XXXXX
-----------------------------------
Xxxx X. Xxxxx III
EXHIBIT A TO
ASSIGNMENT AND ASSUMPTION
AND JOINDER AGREEMENT
SECURITIES
Number of
ASSIGNEE SECURITIES
-------- ----------
The Employees Retirement Plan of the
Brooklyn Union Gas Company 2,500
Boston Safe Deposit & Trust Company,
Trustee for US West Pension Trust 1,125
Boston Safe Deposit & Trust Company,
Trustee for US West Benefit Assurance
Trust 375
Xxxx X. Xxxxx III 100
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Total 4,100
