SECURITIES PURCHASE AGREEMENT,
dated as of November 10, 1997 (the
"Agreement"), by and among The Aegis Consumer
Funding Group, Inc., a Delaware corporation
("the Company"), and the Purchaser or
Purchasers named on the execution pages
hereof.
In consideration of the mutual
covenants and agreements set forth herein and
for good and valuable consideration, the
receipt of which is hereby acknowledged, the
parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used
in this Agreement, and unless the context
requires a different meaning, the following
terms have the meanings indicated:
"Act" means the Securities Act of
1933, as amended, and the rules and
regulations of the Commission thereunder.
"Affiliate" of any specified Person
means any other Person directly or indirectly
controlling or controlled by or under direct
or indirect common control with such
specified Person. For the purposes of this
definition, "control" when used with respect
to any Person means the power to direct the
management and policies of such Person,
directly or indirectly, whether through the
ownership of voting securities, by contract
or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the
foregoing.
"Agreement" means this Agreement,
as the same may be amended, supplemented or
modified in accordance with the terms hereof
and in effect.
"Basic Documents" means,
collectively, the Agreement, the Registration
Rights Agreement, and the Certificates of
Designation.
"Business Day" means each Monday,
Tuesday, Wednesday, Thursday and Friday which
is not a day on which banking institutions in
the City of New York or London, England are
not required to be open.
"Certificates of Designation" means
(i) the Certificate of Designations,
Preferences, and Rights of Class E Redeemable
Preferred Stock of the Company and (ii) the
Certificate of Designations, Preferences, and
Rights of Class F Redeemable Preferred Stock
of the Company.
"Closing" has the meaning provided
therefor in Section 2.1 of this Agreement.
"Code" means the Internal Revenue
Code of 1986, as amended.
"Commission" means the Securities
and Exchange Commission.
"Common Stock" means the common
stock, par value $.01 per share, of the
Company.
"Company" means The Aegis Consumer
Funding Group, Inc., a Delaware corporation.
"Credit Agreement" means the
Amended and Restated Credit Agreement, dated
as of June 23, 1997, to a Credit Agreement
dated May 16, 1996, by and between the
Company, as borrower, Aegis Auto Finance,
Inc. and Aegis Consumer Finance, Inc. as
guarantors, and Greenwich Capital Financial
Products, Inc., as lender.
"Disclosure Documents" means,
collectively, (i) the most recent Annual
Report on Form 10-K filed by the Company,
(ii) all other reports and statements,
including quarterly Reports on Form 10-Q
filed by the Company and any of its Sub-
sidiaries under the Exchange Act prior to the
date hereof but subsequent to the most recent
Annual Report on Form 10-K filed by the
Company, (iii) the Press Release issued by
the Company dated October 17, 1997 containing
results for the fiscal year ended June 30,
1997 and (iv) a draft of the press release to
be issued by the Company relating to the
conversion by Greenwich Capital Financial
Products, Inc. of Company debt held by it
under the Credit Agreement for shares of
Preferred Stock and to the sale by the
Company of the stock of Systems & Services
Technologies, Inc.
"Exchange Act" means the Securities
Exchange Act of 1934, as amended, and the
rules and regulations of the Commission
thereunder.
"GAAP" means generally accepted
accounting principles set forth in the
opinions and pronouncements of the Accounting
Principles Board of the American Institute of
Certified Public Accountants and statements
and pronouncements of the Financial
Accounting Standards Board or in such other
statements by such other entity as may be
approved by a significant segment of the
accounting profession, which are applicable
to the circumstances as of the date of
determination.
"Holders" means the holders from
time to time of any of the Securities,
whether or not such Holders were original
Purchasers of Securities hereunder.
"Investment Company Act" means the
Investment Company Act of 1940, as amended,
and the rules and regulations of the
Commission thereunder.
"Lien" means, with respect to any
asset, (i) any mortgage, lien, pledge,
encumbrance, charge or security interest of
any kind in or on such asset, (ii) the
interest of a vendor or lessor under any
conditional sale agreement, capital lease or
other title retention agreement relating to
such asset or (iii) in the case of
securities, any purchase option, call or
similar right of a third party with respect
to such securities.
"Majority of the Purchasers" means
those Purchasers which, at the time of
determination thereof, individually or in the
aggregate, are committed to purchase pursuant
to this Agreement a majority of the stated
value of the Securities.
"Permitted Liens" means (i) Liens
for taxes, assessments, governmental charges
or claims which are being contested in good
faith by appropriate proceedings promptly
instituted and diligently conducted and for
which a reserve or other appropriate
provision, if any, as shall be required in
conformity with GAAP shall have been made
which (x) do not in the aggregate materially
detract from the value of such property or
assets or materially impair the use thereof
in the operation of the business of the
Company or any Subsidiary of the Company or
(y) are being contested in good faith by
appropriate proceedings, which proceedings
have the effect of preventing the forfeiture
or sale of the property or assets subject to
such Lien; (ii) statutory Liens of landlords,
and warehousemen's, mechanics', suppliers',
materialmen's, repairmen's, or other like
Liens arising in the ordinary course of
business and with respect to amounts not yet
delinquent or being contested in good faith
by appropriate proceedings, which proceedings
have the effect of preventing the forfeiture
or sale of the property or asset subject to
such Lien; and (iii) existing Liens as of the
date hereof.
"Person" means an individual or a
corporation, limited liability company,
partnership, trust, incorporated or
unincorporated association, joint venture,
joint stock company, government (or an agency
or political subdivision thereof) or other
entity of any kind.
"Preferred Stock" shall mean the
Class E and Class F Redeemable Preferred
Stock of the Company described in the
Certificates of Designation.
"Purchaser" means each Person who
accepts and agrees to the terms hereof, as
indicated by signature on the execution page
of this Agreement or a counterpart as
referred to in Section 7.4 of this Agreement.
"Registration Rights Agreement"
means that Registration Rights Agreement of
even date herewith by and between the Company
and each Purchaser relating to the Securities
and the Common Stock issuable upon redemption
thereof or upon exercise of the warrants
issuable upon redemption thereof.
"Securities" means the shares of
Preferred Stock consisting of $2,000,000
stated value of the Class E Redeemable
Preferred Stock of the Company and $2,000,000
stated value of the Class F Redeemable
Preferred Stock of the Company.
"State" means each of the states of
the United States, the District of Columbia
and the Commonwealth of Puerto Rico.
"Subsidiary" means, with respect to
any Person, (i) a corporation a majority of
whose capital stock with voting power, under
ordinary circumstances, to elect directors is
at the time, directly or indirectly, owned by
such Person, by one or more Subsidiaries of
such Person or by such Person and one or more
Subsidiaries thereof or (ii) any other Person
(other than a corporation) in which such
Person, one or more Subsidiaries thereof or
such Person and one or more Subsidiaries
thereof, directly or indirectly, at the date
of determination thereof, has at least
majority ownership interest.
"Time of Purchase" has the meaning
provided therefor in Section 2.1 of this
Agreement.
"Warrant" shall mean that Warrant
dated as of May 17, 1996 granted by the
Company to Greenwich Capital Markets, Inc.
Section 1.2 Accounting Terms;
Financial Statements. All accounting terms
used herein not expressly defined in this
Agreement shall have the respective meanings
given to them in accordance with generally
accepted accounting principles.
ARTICLE II
PURCHASE OF SECURITIES;
RIGHTS OF HOLDERS OF SECURITIES
Section 2.1 Purchase of
Securities. Subject to the terms and
conditions herein set forth, the Company
agrees that it will sell to each Purchaser,
and each such Purchaser agrees, severally and
not jointly, that it will purchase from the
Company at the Time of Purchase, the stated
value of Securities set forth opposite such
Purchaser's name on the execution pages
hereof. The consideration for such purchase
and sale shall be the delivery by the
Purchaser to the Company of such documents as
are necessary to terminate its rights under
the Credit Agreement and any related
collateral agreements, and including, without
limitation, the original note or notes issued
by the Company under the Credit Agreement,
marked "Canceled"; provided, however, that
the provisions in paragraphs (iii) and (iv)
of Section 10.04 of the Credit Agreement (the
"Surviving Provisions") shall survive such
termination and shall remain in full force
and effect in accordance with the terms of
the Credit Agreement.
The purchase and sale of Securities
to the Purchasers will take place at a
closing (the "Closing") at the offices of
Xxxxxxxx & Xxxxx, P.C., 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx on such date not later than
November __, 1997 (subject to extension if
the Purchasers agree to extend the Time of
Purchase, upon request to do so by the
Company) and at such time as the Company
shall specify by notice to the Purchasers at
least one full Business Day prior thereto.
The date and time at which the Closing is to
be concluded is the "Time of Purchase."
Delivery of the Securities to be
purchased by a Purchaser pursuant to this
Agreement shall be made at the Closing by the
Company's delivery to such Purchaser of
certificates representing the Securities to
be purchased by such Purchaser hereunder
(registered in the name of such Purchaser or
such other Person (which shall be an
Affiliate of such Purchaser or a nominee of
such Purchaser or such Affiliate) as such
Purchaser may have designated in writing to
the Company prior to the Time of Purchase).
Payment of the purchase price for
the Securities to be purchased hereunder
shall be made by the delivery to the Company
at the Time of Purchase of such documents as
are necessary to terminate the lender's
rights under the Credit Agreement and all
related collateral agreements, subject to the
survival of the Surviving Provisions as set
forth in the first paragraph of this Section
2.1. Purchaser agrees that from time to time
it shall promptly execute and deliver all
further instruments and documents and take
all such further action that may be necessary
or desirable to effect the foregoing
termination.
The Company will bear all expenses
of shipping any of the Securities (including,
without limitation, insurance expenses) from
New York City to such other places within the
United States of America as any Purchaser
shall specify. Any tax on the issuance of
any of the Securities will be paid by the
Company at the Time of Purchase.
Section 2.2 Restrictions on
Transfer. (a)(i) Unless a registration
statement with respect thereto under the Act
is at the time in effect, no Security shall
be transferred (such term to include any
disposition which would constitute a sale
within the meaning of the Act), except upon
compliance with the conditions specified in
this subsection (a), and unless such a
registration statement is effective or such
conditions are complied with, the Company may
issue or cause to be issued stop orders
preventing any such transfer, subject to a
Holder's right at all times to sell or
otherwise dispose of all or any part of the
Securities under a registration under the Act
or any exemption from such registration
available under the Act.
(ii) Each Security initially issued
under this Agreement and each Security issued
in exchange therefor shall (unless otherwise
permitted by the provisions of subsection
(b)) be stamped or otherwise imprinted with a
standard Securities Act legend applicable to
restricted securities.
(b) The holder of each Security by
the acceptance thereof agrees that it shall
not transfer such Security unless a
registration statement under the Act is in
effect with respect to such transfer or,
prior to such transfer, it shall have
delivered to the Company (x) an opinion of
counsel, experienced in matters under the
Act, reasonably acceptable to the Company and
counsel to the Company which opinion shall be
in a form reasonably acceptable to the
Company and counsel to the Company or (y) a
"no action" letter from the Commission, in
either case to the effect that the proposed
transfer may be effected without registration
under the Act; provided, however, that in
case of any sale or other transfer of
Securities to any Person who is an
institutional investor, no opinion of counsel
or "no action" letter shall be required if
such holder obtains and delivers to the
Company a written representation from such
Person that it is an institutional investor,
including an insurance company, and is
acquiring the Securities for its own account
or as trustee for a commingled pension trust
fund for purposes of investment and with no
intention of distributing or reselling said
Securities in any transaction which would be
in violation of the securities laws of the
United States of America or any State,
subject, nevertheless, to such Person's
disposition of its property being at all
times within its control, including such
Person's right at all times to sell or
otherwise dispose of all or any part of the
Securities under a registration under the Act
or any exemption from such registration
available under the Act.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and
Warranties of the Company. The Company
represents and warrants to, and covenants and
agrees with, each of the Purchasers as
follows:
(a) Organization, Standing,
Etc. The Company is a corporation
duly organized and in good standing
under the laws of the State of
Delaware. The Company is duly
qualified and in good standing as a
foreign corporation, and is
authorized to do business, in each
jurisdiction in which the ownership
or leasing of any property or the
character of its operations makes
such qualification necessary and in
which the failure so to qualify
could have a material adverse
effect on the condition (financial
or otherwise), properties, assets,
business or results of operations
of the Company. The Company has
all requisite corporate power and
authority to own its assets and to
carry on its businesses as
currently conducted. The Company
has all requisite corporate power
and authority (i) to execute,
deliver and perform its obligations
under the Basic Documents, (ii) to
issue the Securities pursuant
hereto in the manner and for the
purpose contemplated by this Agree-
ment and (iii) to execute, deliver
and perform its obligations under
all other agreements and
instruments executed and delivered
by, or to be executed and delivered
by, the Company pursuant to or in
connection with the Basic
Documents. The Basic Documents
have been duly and validly
authorized executed and delivered
by the Company and each constitutes
a valid and binding agreement of
the Company enforceable in
accordance with its terms (except
in each such case as enforceability
may be limited by bankruptcy,
insolvency, reorganization and
other similar laws now or hereafter
in effect relating to or affecting
creditors' rights generally and
except that the remedy of specific
performance and injunctive and
other forms of equitable relief are
subject to certain equitable
defenses and to the discretion of
the court before which any
proceeding therefor may be brought
and except as rights to indemnity
and contribution hereunder and
thereunder may be limited by
Federal or state securities laws).
(b) Financial Statements.
(i) The Company has delivered to
the Purchasers the consolidated
balance sheet of the Company at
June 30, 1996 and the related
consolidated statements of income
and retained earnings and cash
flows of the Company for the fiscal
year ended on said date, which
statements have been certified by
Ernst & Young, LLP, independent
certified public accountants, and
such statements present fairly the
consolidated financial position of
the Company and the results of its
operations for the periods covered
thereby and all such financial
statements have been prepared in
accordance with GAAP consistently
applied, and (ii) the Company has
delivered to the Purchasers
unaudited consolidated balance
sheets and the unaudited
consolidated statements of income
and retained earnings or financial
highlights as set forth in (A) the
Company's Form 10-Qs for the
periods ending September 30, 1996,
December 31, 1996 and March 31,
1997 and (B) the Press Release
issued by the Company on October
17, 1997. The unaudited
consolidated financial statements
in (ii) above have been prepared in
accordance with GAAP applied on a
basis consistent with those of the
audited financial statements
referred to in (i) above and
otherwise consistent with the
accounting methodology contained in
GAAP.
(c) No Material Change.
Since June 30, 1997, there has been
no material adverse change in the
condition (financial or otherwise),
properties, assets, business or
results of operations of the
Company and its Subsidiaries, taken
as a whole, other than those
changes disclosed in the unaudited
financial statements referred to in
Section 3.1 (b)(ii) or the
Disclosure Documents.
(d) Conflicting Agreements
and Other Matters. The execution,
delivery and performance by the
Company as the case may be, of the
Basic Documents and the issuance of
the Securities, and the execution,
delivery and performance by the
Company of all other agreements and
instruments to be executed and
delivered by the Company pursuant
hereto or in connection herewith or
therewith, and compliance by the
Company with the terms and
provisions hereof and thereof do
not and will not (i) violate, in
any material respect, any provision
of any law, rule or regulation,
including, without limitation,
Regulation G, T, U or X of the
Board of Governors of the Federal
Reserve System (but excluding state
securities or "blue sky" laws),
order, writ, judgment, injunction,
statute, decree, determination or
award of any court or any public,
governmental or regulatory agency
or body applicable to the Company
or any of its properties or assets;
(ii) conflict with or result in a
breach of or constitute a default
under any provision of the charter
or by-laws of the Company;
(iii) require any consent, approval
or notice under or result in a
violation or breach of or
constitute (with or without due
notice or lapse of time or both) a
default (or give rise to any right
of termination, cancellation or
acceleration) under any of the
terms, conditions or provisions of
any note, bond, mortgage, indenture
or loan or credit agreement,
license, or any other agreement or
instrument or obligation to which
the Company or any of its
Subsidiaries is a party or by which
the Company or any of its or their
properties or assets may be bound;
or (iv) result in or require the
creation or imposition of any Lien
upon or with respect to any of the
properties now owned or hereafter
acquired by the Company.
(e) Litigation, Proceedings;
Defaults. Except as set forth in
the Disclosure Documents, there are
no actions, suits or proceedings
pending or threatened with respect
to the Company or any of its
Subsidiaries that would reasonably
be expected to have a materially
adverse effect on (i) the business,
properties, assets, operations or
condition (financial or otherwise)
or results of operations of the
Company or its Subsidiaries, taken
as a whole, or (ii) the rights or
remedies of the Purchasers under
the Basic Documents or on the
ability of the Company to perform
its obligations under the Basic
Documents.
(f) Governmental Consents,
etc. Except to the extent obtained
or made prior to the date hereof,
no authorization, consent,
approval, license, qualification or
formal exemption from, nor any
filing, declaration or registration
with, any court, governmental body
or regulatory agency or authority
or any securities exchange or any
other person is required in
connection with the issuance and
sale of the Securities or the
execution, delivery or performance
by the Company of the Basic
Documents.
(g) Investment Company Act.
The Company is not an "investment
company" or a company "controlled"
by an "investment company" within
the meaning of the Investment
Company Act of 1940, as amended,
and the rules and regulations of
the Commission promulgated
thereunder.
(h) Governmental Regulation.
The Company is not subject to any
Federal or state statute or
regulation limiting the ability of
the Company to issue and sell the
Securities and perform its
obligations under the Basic
Documents.
(i) Disclosure Documents.
The Disclosure Documents were
prepared with reasonable care on
the basis set forth therein and
those of the Disclosure Documents
that were filed with the Commission
conformed in all material respects
to the requirements of the Exchange
Act. The Disclosure Documents did
not, as of their respective dates,
contain any untrue statement of a
material fact or omit to state any
material fact required to be stated
therein or necessary in order to
make the statements made therein,
in light of the circumstances under
which they were made, not
misleading. There is no fact known
by the Company which has not been
disclosed in the Disclosure
Documents which materially
adversely affects the condition
(financial or otherwise),
properties, assets, business or
results of operations of the
Company and its Subsidiaries, taken
as a whole, or the ability of the
Company to perform its obligations
under the Basic Documents.
(j) Statutory Compliance.
The Company is in compliance with
all applicable statutes, laws,
ordinances or government rules and
regulations to which it is subject,
noncompliance with which would
materially adversely affect the
condition (financial or otherwise),
properties, assets, business or
results of operations of the
Company.
(k) Taxes. All material tax
returns required to be filed by the
Company in any jurisdiction have
been so filed, or are under valid
extensions, and all taxes,
assessments, fees and other charges
due or claimed to be due from the
Company which are shown therein as
due and payable have been paid,
other than those being contested in
good faith or those currently
payable without penalty or
interest. The Company knows of no
material proposed additional tax
assessments against it.
(l) Due Issuance. The Securities
have been duly and validly authorized by all
necessary corporate
action and, when issued
and delivered in
accordance with the terms
of this Agreement against
payment therefor, will
have been duly authorized
and delivered by the
Company and will be duly
and validly outstanding
and fully paid and will
be non-assessable.
Except as set forth in
the Disclosure Documents,
there are no outstanding
options, conversion
rights, warrants,
preemptive rights, rights
of first refusal or other
rights, or agreements or
commitments obligating
the Company to issue,
transfer or sell any
interests in the equity
of the Company other than
employee stock options
granted pursuant to the
option plans described in
the Disclosure Documents.
(m) No Offer. Neither the Company
nor any of its Affiliates or any person
authorized to act on its
behalf has sold, offered
for sale, solicited
offers to buy or
otherwise negotiated in
respect of Securities in
a manner which would
require registration
under the Act.
(n) No Registration. Subject to
compliance by the
Purchasers with the representations and
warranties set forth in Section 3.2
hereof, it is not necessary in
connection with the offer, sale and
delivery of the Securities to the
Purchasers contemplated by this
Agreement to register the Securities
under the Act.
(o) III Exchange. On October
16, 1997, III Finance Ltd. ("III")
and The High Risk Opportunities Hub
Fund Ltd. ("Hub" and, together with
III, the "III Funds") converted
$21,333,333 Exchangeable
Subordinated Notes Due 2004 (the
"Exchangeable Notes"), of Aegis
Auto Finance, Inc., the Company's
wholly owned Subsidiary, for an
aggregate of 21,106.78 shares of
the Company's Class D Redeemable
Preferred Stock. The Registration
Rights Agreement dated April 30,
1997 between the Company and the
III Funds, as amended as of the
date hereof pursuant to an
amendment in the form attached
hereto as Exhibit A (the
"Amendment"), the Certificate of
Designations relating to the
Company's Class D Preferred Stock
filed on May 16, 1997 (as amended
on October 17, 1997), the Agreement
dated as of October 16, 1997
between the Company and the III
Funds relating to the exchange of
the $21,333,333 Exchangeable Notes
held by them for shares of the
Company's Class D Preferred Stock
and the proxies dated as of October
16, 1997 given by Pacific Capital
Group, Inc., Atlas Holdings Group,
Inc. and Xxxxxx X. Xxxxxxxxxx, with
respect to increasing the
authorized issuance of Common
Stock, are the only agreements or
instruments in effect which relate
to the III Funds' rights in respect
of the Class D Preferred Stock.
Section 3.2 Representations and
Warranties of the Purchasers. (a) Each
Purchaser (as to itself only) represents and
warrants to, and covenants and agrees with,
the Company that the Securities to be
acquired by it pursuant to this Agreement are
being acquired for its own account and with
no present intention of distributing or
reselling such Securities or any part thereof
or any securities for which the Securities
may be exchanged or which may be issued upon
redemption of the Securities or upon exercise
of the securities which may be issued upon
redemption thereof in any transaction which
would be in violation of the securities laws
of the United States of America or any State,
without prejudice, however, to a Purchaser's
rights at all times to sell or otherwise
dispose of all or any part of such Securities
or any such other securities under a
registration under the Act or under an
exemption from such registration available
under such Act, and subject, nevertheless, to
the disposition of a Purchaser's property
being at all times within its control.
(b) Each Purchaser represents that
no part of the funds or other assets to be
used to purchase the Securities to be
purchased by it constitutes assets allocated
to any qualified trust which contains the
assets of any employee benefit plan with
respect to which the Company is a party in
interest or disqualified person.
(c) Each Purchaser (as to itself
only) hereby represents to the Company and to
each of the other Purchasers that unless
otherwise approved by the Company as an
"accredited investor" (as defined in Rule 501
of Regulation D under the Act), (i) it is an
institutional investor, (ii) by reason of its
business and financial experience, and the
business and financial experience of those
Persons, if any, retained by it to advise it
with respect to its investment in the
Securities, such Purchaser, together with
such advisors, has such knowledge,
sophistication and experience in business and
financial matters so as to be capable of
evaluating the merits and risks of the
prospective investment. Each Purchaser
further represents that it can afford to
suffer the loss of its entire investment in
the Securities and is not purchasing the
Securities in reliance upon any investigation
made by any other Purchaser.
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
Section 4.1 Conditions Precedent
to Obligations of the Purchasers. The
obligation of each Purchaser to purchase the
Securities to be purchased by it hereunder is
subject to the satisfaction of the following
conditions at the Time of Purchase:
(a) The representations and
warranties made by the Company
herein shall be true and correct in
all material respects (except for
changes expressly provided for or
contemplated in this Agreement) on
and as of the Time of Purchase with
the same effect as though such
representations and warranties had
been made on and as of the Time of
Purchase.
(b) The Company shall have
performed and complied in all
material respects with all
covenants, agreements and
conditions set forth or
contemplated herein which are
required to be performed or
complied with by them at or prior
to the Time of Purchase.
(c) Except as disclosed in
the Disclosure Documents or the
unaudited financial statements
referred to in Section 3.1(b),
there shall not have occurred any
material adverse change or any
development involving a prospective
material adverse change in the
condition (financial or otherwise),
business, assets, properties,
prospects or results of operations
of the Company, subsequent to the
date of the last of such unaudited
financial statements.
(d) The purchase of the
Securities agreed to be purchased
by such Purchaser hereunder shall
not at the Time of Purchase be
prohibited or enjoined (temporarily
or permanently) under the laws of
any jurisdiction to which such
Purchaser is subject.
(e) The Basic Documents shall
have been duly executed and
delivered by all the respective
parties thereto.
(f) As to each Purchaser, the
transactions contemplated by this
Agreement (i) shall not be
prohibited by an applicable law or
governmental regulation (including,
without limitation, Regulation G,
T, U or X of the Board of Governors
of the Federal Reserve System),
(ii) shall not subject the
Purchaser to any penalty or, in its
reasonable judgment, other onerous
condition under or pursuant to any
applicable law or governmental
regulations, and (iii) shall be
permitted by the laws and
regulations of the jurisdiction to
which it is subject.
(g) The Purchasers shall have
received evidence satisfactory to
them that the Certificates of
Designation have been filed with
the Secretary of State of the State
of Delaware.
(h) The Company and the III
Funds have duly executed and
delivered the Amendment.
(i) The Company shall have
paid the reasonable fees and
expenses of Fulbright & Xxxxxxxx,
L.L.P., counsel to the Purchaser.
Section 4.2 Conditions Precedent
to Obligations of the Company. The
obligation of the Company to issue and sell
the Securities is subject to the satisfaction
of the following conditions at the Time of
Purchase:
(a) The representations and
warranties made by the Purchasers
herein shall be true and correct in
all material respects on and as of
the Time of Purchase with the same
effect as though such
representations and warranties had
been made on and as of the Time of
Purchase.
(b) The purchase or sale of
the Securities shall not be
enjoined (temporarily or
permanently) at the Time of
Purchase.
ARTICLE V
COVENANTS
Section 5.1 Certain Amendments.
The Company agrees not to amend or change any
of the applicable Basic Documents in a manner
adverse to it or the Purchasers without the
consent of a majority of the Purchasers.
Section 5.2 Inspection. The
Company covenants that, so long as the
Securities are held by the Purchasers, it
will permit any Person designated by such
Purchaser in writing, at such Purchaser's
expense, to visit and inspect any of the
Company's offices, or to inspect the
corporate books and financial records of the
Company and its Subsidiaries and to discuss
their affairs, finances and accounts with the
principal officers of the Company and their
respective Subsidiaries, all at such
reasonable times and as often as Purchaser
may reasonably request. Each Purchaser agrees
that any information obtained by it as a
result of such visits, inspections and
discussions or pursuant to this Agreement
shall be confidential and shall not be used
by it as the basis for any market
transactions in securities of the Company
unless and until such information has been
made generally available to the public.
Notwithstanding the foregoing, there will be
no such inspection rights granted to
Purchasers under this Section 5.2 as long as
the Company is required to file reports with
the Commission pursuant to Section 13(a) or
15(d) of the Exchange Act.
Section 5.3 Nasdaq Listing. Upon
the redemption of the Securities in exchange
for shares of Common Stock, the Company shall
file an application to have such additional
shares of Common Stock listed on the Nasdaq
National Market or such other securities
exchange or market, if any, on which such
Common Stock is then listed.
Section 5.4 Availability of
Capital Stock. The Company shall resolve to
amend its Certificate of Incorporation, and
thereafter use its best efforts to obtain the
requisite approval of such amendment by its
stockholders at a meeting of stockholders to
be held as soon as practicable after the date
hereof (which, in any event, shall be the
first meeting of the stockholders of the
Company after the date hereof), so that the
Company may cause such amendment to be filed
with the Secretary of State of the State of
Delaware and to become effective, to effect
an increase in the authorized issuance of the
Common Stock so that the Company shall have
authorized a sufficient number of shares of
Common Stock to be able to effect a
redemption of all shares of Preferred Stock
that are to be issued and outstanding upon
the consummation of this Agreement. Subject
to the foregoing, the Company shall at all
times reserve and keep available out of its
authorized but unissued Common Stock, for the
purposes of effecting the redemption of the
Securities, the full number of shares of
Common Stock then issuable upon the exchange
of the Securities, provided, that if at any
time (including at the Time of Purchase) the
number of shares of Common Stock remaining
unissued and available for issuance shall be
insufficient to permit the redemption of the
Securities, the Company will, from time to
time, in accordance with the laws of the
State of Delaware, increase the authorized
amount of Common Stock to permit such
exchange or redemption. In the event of the
consolidation or merger of the Company with
another corporation where the Company is not
the surviving corporation, effective
provisions shall be made in the certificate
or articles of incorporation, merger or
consolidation, or otherwise, of the surviving
corporation to reserve and keep available
sufficient number of shares of common stock
or other securities or property to provide
for the redemption of the Preferred Stock.
ARTICLE VI
INDEMNITY; CONTRIBUTION
Section 6.1 Indemnity.
(a) Indemnification. The Company
agrees and covenants to hold harmless and
indemnify each of the Purchasers and (i) any
Affiliates thereof and (ii) any managed
accounts who are purchasing for their own
account (including any director, officer,
employee, agent, investment adviser, or
controlling person of any of the foregoing)
from and against any losses, claims, damages,
liabilities and expenses (including but not
limited to attorneys' fees and expenses of
investigation, preparation or defending
against any litigation, commenced or
threatened, or any claim whatsoever, and any
and all amounts paid in settlement of any
claim or litigation) incurred by such
Purchaser pursuant to any actual or
threatened third-party action, suit,
proceeding or investigation (including
expenses of investigation) (A) arising out of
or based upon any untrue statement of any
material fact contained in the Disclosure
Documents, or arising out of or based upon
the omission to state a material fact
required to be stated therein or necessary to
make the statements therein, in light of the
circumstances under which they were made, not
misleading, (B) arising out of or based upon
any breach by the Company of the
representations, warranties and agreements
herein or (C) arising out of or based upon or
in any way related or attributed to claims,
actions or proceedings by any party other
than such Purchaser relating to this
Agreement; provided, however, that the
Company shall not be liable under this
paragraph (a) for any amounts paid in
settlement of claims without its consent,
which consent shall not be unreasonably
withheld or to the extent that it is finally
judicially determined that such losses,
claims, damages or liabilities (i) arose out
of the gross negligence or willful misconduct
of such Purchaser and such negligence or
misconduct was not committed by such
Purchaser or its agents in reliance upon any
of the Company's warranties, covenants or
promises herein or in any other documents
contemplated hereby or thereby, including
certificates delivered by the Company
pursuant hereto, or (ii) arose from a
violation by such Purchaser of legal
requirements applicable to such Purchaser
primarily because of its character as a
particular type of regulated institution.
The Company further agrees promptly upon
demand by such Purchaser to reimburse each
Purchaser for any legal and other expenses as
they are incurred by it in connection with
investigating, preparing to defend or
defending any lawsuits, claims or other
proceedings or investigations arising in any
manner out of or in connection with such
Person being a Purchaser and as to which the
Company is liable to indemnify. The
indemnity, contribution and expense
reimbursement obligations of the Company
under this Article VI shall be in addition to
any liability the Company may otherwise have.
(b) Procedure. Promptly after
receipt by an indemnified party under this
Article VI of notice of the commencement of
any action, proceeding or investigation or
threat thereof, such indemnified party will,
if a claim in respect thereof is to be made
against the indemnifying party hereunder,
notify in writing the indemnifying party of
the commencement thereof; but the omission so
to notify the indemnifying party will not
relieve it from any liability which it may
have to any indemnified party except to the
extent that any indemnifying party is
prejudiced by such omission. In case any
such action shall be brought against any
indemnified party and it shall notify the
indemnifying party of the commencement
thereof, the indemnifying party shall be
entitled to participate therein and, to the
extent that it shall wish, jointly with any
other indemnifying party similarly notified,
to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified
party (who shall not, except with the consent
of the indemnified party, which consent shall
not be unreasonably withheld, be counsel to
the indemnified party), and, after notice
from the indemnifying party to such
indemnified party of its elections to assume
the defense thereof and the actual assumption
of such defense, the indemnifying party shall
not be liable to such indemnified party under
these indemnification provisions for any
legal expenses of other counsel or any other
expenses, in each case subsequently incurred
by such indemnified party, in connection with
the defense thereof other than reasonable
costs of investigation, unless in the
reasonable judgment of such indemnified party
a conflict of interest may exist between such
indemnified party and any other of such
indemnified parties with respect to such
claim, in which event the indemnifying party
shall be obligated to pay the fees and
expenses of one additional counsel. The
indemnifying party will not be subject to any
liability for any settlement made without its
consent (which will not be unreasonably
withheld).
Section 6.2 Notification. The
Company agrees promptly to notify each
Purchaser of the commencement of any
litigation or proceeding against it or any of
its officers or directors in connection with
the issue and sale of any of the Securities,
or in any way related or attributed to this
Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 No Waiver;
Modifications in Writing. No failure or
delay on the part of the Company or any
Purchaser in exercising any right, power or
remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial
exercise of any such right, power or remedy
preclude any other or further exercise
thereof or the exercise of any other right,
power or remedy. The remedies provided for
herein are cumulative and are not exclusive
of any remedies that may be available to the
parties hereto at law or in equity or
otherwise. No waiver of or consent to any
departure by the Company from any provision
of this Agreement shall be effective unless
signed in writing by the party entitled to
the benefit thereof, provided that notice of
any such waiver shall be given to each party
hereto as set forth below. Except as
otherwise provided herein, no amendment,
modification or termination of any provision
of this Agreement shall be effective unless
signed in writing by or on behalf of each
Purchaser. Any amendment, supplement or
modification of or to any provision of this
Agreement, any waiver of any provision of
this Agreement, and any consent to any
departure by the Company from the terms of
any provision of this Agreement, shall be
effective only in the specific instance and
for the specific purpose for which made or
given. Except where notice is specifically
required by this Agreement, no notice to or
demand on the Company in any case shall
entitle the Company to any other or further
notice or demand in similar or other
circumstances.
Section 7.2 Communications. All
notices, demands and other communications
provided for hereunder shall be in writing,
and, if to the Purchasers, shall be given by
registered or certified mail, return receipt
requested, telecopy, courier service or
personal delivery, addressed to each
Purchaser as shown on the execution pages
hereof or to such other address as such
Purchaser may designate to the Company in
writing and, if to the Company, shall be
given by similar means to The Aegis Consumer
Funding Group, Inc., 000 Xxxxxxxxxx
Xxxxxxxxx, 00xx Xxxxx, Xxxxxx Xxxx, Xxx
Xxxxxx 00000, Attention: Corporate Counsel,
or to such other address as the Company may
designate in writing, and shall be deemed
given when received. A copy of any notice
hereunder shall be provided to the Trustee at
the address set forth in the Indenture.
Section 7.3 Costs, Expenses and
Taxes. The Company agrees to pay all costs
and expenses in connection with the
negotiation, preparation, printing, typing,
reproduction, execution and delivery of this
Agreement, each of the Basic Documents, any
amendment or supplement to or modification of
any of the foregoing, and any and all other
documents furnished pursuant hereto or
thereto or in connection herewith or there-
with, all reasonable costs and expenses in
connection with the administration of this
Agreement and all costs and expenses
(including, without limitation, reasonable
attorneys' fees and expenses), if any, in
connection with the enforcement of this
Agreement, the Securities, any of the Basic
Documents, or any other agreement furnished
pursuant hereto or thereto or in connection
herewith or therewith. In addition, the
Company shall pay any and all stamp, transfer
and other similar taxes payable or determined
to be payable in connection with the
execution and delivery of this Agreement or
the original issuance of the Securities, and
shall save and hold each Purchaser harmless
from and against any and all liabilities with
respect to or resulting from any delay in
paying, or omission to pay, such taxes. The
Company shall bear all expenses of shipping
the Securities (including, without
limitation, insurance expenses) from New York
City to such other places within the United
States of America as any Purchaser shall
specify.
Section 7.4 Execution in
Counterparts. This Agreement may be executed
in any number of counterparts and by
different parties hereto on separate
counterparts, each of which counterparts,
when so executed and delivered, shall be
deemed to be an original and all of which
counterparts, taken together, shall
constitute but one and the same Agreement.
Section 7.5 Binding Effect;
Assignment. Prior to the Time of Purchase
the rights and obligations of any Purchaser
under this Agreement may not be assigned to
any other Person except with the prior
consent of the Company, which shall not be
unreasonably withheld. Except as expressly
provided in this Agreement, this Agreement
shall not be construed so as to confer any
right or benefit upon any Person other than
the parties to this Agreement, and their
respective successors and assigns. This
Agreement shall be binding upon the Company
and each Purchaser, and their successors and
assigns.
Section 7.6 Governing Law. This
Agreement shall be deemed to be a contract
made under the laws of the State of New York,
and for all purposes shall be construed in
accordance with the laws of said State,
without regard to principles of conflict of
laws. Each of the parties hereto agrees to
submit to the jurisdiction of the federal and
state courts sitting in the State of New York
in any action or proceeding arising out of or
relating to this Agreement.
Section 7.7 Severability of
Provisions. Any provision of this Agreement
which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such
prohibition or unenforceability without
invalidating the remaining provisions hereof
or affecting the validity or enforceability
of such provision in any other jurisdiction.
Section 7.8 Article and Section
Headings. The Article and Section headings
used or contained in this Agreement are for
convenience of reference only and shall not
affect the construction of this Agreement.
Section 7.9 Attorneys' Fees. In
any action or proceeding brought to enforce
any provision of this Agreement or any of the
Basic Documents, or where any provision
hereof or thereof is validly asserted as a
defense, the successful party shall be
entitled to recover reasonable attorneys'
fees in addition to any other available
remedy.
Section 7.10 No Recourse Against
Others. A director, officer, employee or
stockholder, as such, of the Company shall
not have any liability for any obligations of
the Company under the Securities or this
Agreement or for any claim based on, in
respect of or by reason of such obligations
or their creation. Each Purchaser by
accepting a Security waives and releases all
such liability.
PURCHASE AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF the parties
hereto have caused this Agreement to be
executed by their respective officers
hereunto duly authorized, as of the date
first above written.
THE AEGIS CONSUMER
FUNDING GROUP, INC.
By:
Name: Xxxxxxx Xxxxx
Title: Chief
Operating Officer
Accepted and Agreed as of
the date first above written
Name of Purchaser
By:
Name:
Title:
Aggregate stated value of
Securities to be purchased by
Purchaser
$ Class E Redeemable
Preferred Stock
$ Class F Redeemable
Preferred Stock
Nominee (name in which Securities are to
be registered, if different than name of
Purchaser)
THE AEGIS CONSUMER FUNDING GROUP, INC.
SECURITIES PURCHASE AGREEMENT
Dated as of November 10, 1997
$4,000,000 Aggregate Stated Value
Redeemable Preferred Stock
Bomrind\Aegis\GreenPur.Ag4
