EXECUTION COPY
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of June 23, 1997
to
CREDIT AGREEMENT
Dated as of May 17, 1996
AMONG
THE AEGIS CONSUMER FUNDING GROUP,
INC.,
as Borrower,
AEGIS CONSUMER FINANCE, INC.,
as Guarantor,
AEGIS AUTO FINANCE, INC.,
as Guarantor
AND
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.,
as Lender
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS;
CONSTRUCTION. . . . . . . . . . . . . . . 1
Section 1.01. Definitions. . . . . . . . 1
Section 1.02. Accounting Terms and
Determinations . . . . . . . . . . . 7
Section 1.03. Other Definitional
Terms. . . . . . . . . . . . . . . 7
ARTICLE II. AMOUNT AND TERMS
OF THE LOAN . . . . . . . . . . . . . . . 7
Section 2.01. The Loan . . . . . . . . . 7
Section 2.02. The Note . . . . . . . . . 7
ARTICLE III. INTEREST, PAYMENTS,
ETC.. . . . . . . . . . . . . . . . . . . 8
Section 3.01. Interest on the Loan . . . 8
Section 3.02. Optional Prepaymen . . . 8
Section 3.03. Mandatory
Repayments and Prepayments
. . . . . . . . . . . . . . . . . . 8
Section 3.04. Funds; Manner of
Payment. . . . . . . . . . . . . . . 8
Section 3.05. Default Interest . . . . . 9
Section 3.06. Requirements of Law. . . . 9
Section 3.07. Application of
Payments, etc. . . . . . . . . . . . 10
ARTICLE IV. CONDITIONS TO
AMENDMENT AND
RESTATEMENT . . . . . . . . . . . . . . . 10
Section 4.01. Conditions Precedent
to Amendment and
Restatement. . . . . . . . . . . . . 10
ARTICLE V. REPRESENTATIONS AND
WARRANTIES. . . . . . . . . . . . . . . 12
Section 5.01. Existence; Conduct of
Business . . . . . . . . . . . . . . 12
Section 5.02. Corporate Power and
Authority. . . . . . . . . . . . . . 13
Section 5.03. No Violation . . . . . . . 13
Section 5.04. Approvals,
Authorizations, Consents,
etc. . . . . . . . . . . . . . . . . 13
Section 5.05. No Litigation. . . . . . . 13
Section 5.06. Tax Liability. . . . . . . 13
Section 5.07. Regulation G . . . . . . . 14
Section 5.08. Permits, Licenses,
Approvals, Consents,
Compliance with
Requirements of Law, etc.. . . . . . 14
Section 5.09. Financial Statements;
Material Adverse Change. . . . . . 14
Section 5.10. The Investment
Company Act, Etc.. . . . . . . . . . 14
Section 5.11. The Security
Agreements.. . . . . . . . . . . . . 14
Section 5.12. Ownership of
Properties; Insurance. . . . . . . . 14
Section 5.13. Ownership of the
Guarantors . . . . . . . . . . . . 14
Section 5.14. Full Disclosure. . . . . . 14
Section 5.15. Intellectual Property. . . 15
Section 5.16. ERISA. . . . . . . . . . 15
Section 5.17. Subsidiaries.. . . . . . . 15
Section 5.18. III Finance
Documents; the Subordinated
Note Documents.. . . . . . . . . . 15
Section 5.19. Original Credit
Agreement Obligations. . . . . . . . 15
ARTICLE VI. AFFIRMATIVE
COVENANTS . . . . . . . . . . . . . . . . 16
Section 6.01. Financial Statements
and Other Information. . . . . . . . 16
Section 6.02. Compliance with
Laws, etc. . . . . . . . . . . . . . 17
Section 6.03. Preservation of
Corporate Existence; Conduct
of Business. . . . . . . . . . . . 17
Section 6.04. Payment of Taxes and
Claims, etc. . . . . . . . . . . . . 17
Section 6.05. Keeping of Books,
Visitation, Inspection, etc. . . . . 17
Section 6.06. Pay Obligations. . . . . 18
Section 6.07. Notice of Default, etc.. . 18
Section 6.08. Notice of Material
Adverse Change . . . . . . . . . . 18
Section 6.09. Further Assurances . . . . 18
Section 6.10. Insurance. . . . . . . . . 18
Section 6.11. III Finance
Documents; Subordinated
Note Documents, Etc. . . . . . . . . 19
ARTICLE VII. NEGATIVE
COVENANTS . . . . . . . . . . . . . . . . 19
Section 7.01. Indebtedness; Liens;
Sales of Assets. . . . . . . . . . . 19
Section 7.02. Merger;
Consolidation, Etc.. . . . . . . . . 20
Section 7.03. Net Worth of the
Borrower . . . . . . . . . . . . . . 20
Section 7.04. Dividends, etc.. . . . . . 20
Section 7.05. Transactions with
Affiliates . . . . . . . . . . . . 20
ARTICLE VIII. EVENTS OF DEFAULT . . . . . . . 20
Section 8.01. Events of Default. . . . 20
ARTICLE IX. GUARANTEE . . . . . . . . . . 23
Section 9.01. Guarantee. . . . . . . . . 23
Section 9.02. No Subrogation . . . . . . 24
Section 9.03. Amendments, etc.
with respect to the
Obligations; Waiver of Rights
. . . . . . . . . . . . . . . . . 24
Section 9.04. Guarantee Absolute
and Unconditional. . . . . . . . . 25
Section 9.05. Reinstatement. . . . . . . 25
Section 9.06. Payments . . . . . . . . 26
ARTICLE X. MISCELLANEOUS. . . . . . . . . . . 26
Section 10.01. Notices . . . . . . . . 26
Section 10.02. Amendments,
Waivers, etc.. . . . . . . . . . . . 27
Section 10.03. No Waiver;
Remedies Cumulative. . . . . . . . . 27
Section 10.04. Payment of
Expenses, Indemnity, etc.. . . . . . 27
Section 10.05. Benefits of
Agreement. . . . . . . . . . . . . . 28
Section 10.06. Right of Setoff . . . . 29
Section 10.07. Survival of
Agreement. . . . . . . . . . . . . . 29
Section 10.08. GOVERNING
LAW. . . . . . . . . . . . . . . . . 29
Section 10.09. Counterparts. . . . . . 29
Section 10.10. Headings
Descriptive. . . . . . . . . . . . . 30
Section 10.11. Severability. . . . . . 30
Section 10.12. Entire Agreement. . . . 30
Section 10.13. Submission to
Jurisdiction; Venue. . . . . . . . . 30
Section 10.14. Confirmation of
Security Interests, Etc. . . . . . . 30
Section 10.15. WAIVER OF
JURY TRIAL . . . . . . . . . . . . . 31
EXHIBITS
EXHIBIT A FORM OF NOTE
EXHIBIT B FORM OF OPINION OF COUNSEL
TO THE BORROWER AND THE
GUARANTORS
EXHIBIT C FORM OF INTERCREDITOR
AGREEMENT
SCHEDULES
SCHEDULE I III FINANCE
DOCUMENTS
SCHEDULE II INSURANCE
SCHEDULE III PLANS
SCHEDULE IV SUBSIDIARIES
SCHEDULE V PERMITTED EXISTING
LIENS
ANNEXES
ANNEX A III Finance Amended and
Restated Master Loan Agreement
AMENDED AND RESTATED CREDIT
AGREEMENT, dated as of June 23, 1997, to
Credit Agreement dated as of May 17, 1996,
between THE AEGIS CONSUMER FUNDING
GROUP, INC., a Delaware corporation (the
"Borrower), AEGIS CONSUMER FINANCE,
INC., a Delaware corporation ("Aegis Consumer
Finance"), AEGIS AUTO FINANCE, INC., a
Delaware corporation ("Aegis Auto Finance") and
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC., a Delaware corporation (the
"Lender").
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors
and the Lender are parties to that certain Credit
Agreement, dated as of May 17, 1996 (the
"Original Credit Agreement"); and
WHEREAS, the Borrower is indebted to the
Lender under the Original Credit Agreement in the
principal amount of $5,000,000, together with all
accrued and unpaid interest due and owing thereon
to but excluding the Restatement Date (as defined
below); and all accrued and unpaid fees and
expenses of the Lender due and owing under the
Original Credit Agreement to but excluding the
Restatement Date (collectively, the "Original Credit
Agreement Obligations"); and
WHEREAS, the Borrower has requested that
the Lender amend and restate the Original Credit
Agreement, and the Lender is willing to so amend
and restate the Original Credit Agreement upon the
terms and conditions set forth herein;
NOW THEREFORE, in consideration of the
premises and for other good and valuable
consideration, the receipt of which is hereby
acknowledged, the parties hereto agree the Original
Credit Agreement is hereby amended and restated
in its entirety as follows:
ARTICLE I. DEFINITIONS;
CONSTRUCTION
Section 1.01. Definitions. As used herein
and in the Schedules and the Exhibits hereto, the
following terms shall have the meanings herein
specified (to be equally applicable to both the
singular and plural forms of the terms defined):
"Aegis Auto Finance" shall have the
meaning set forth in the preamble hereof.
"Aegis Auto Finance Security Agreement"
shall mean the security and pledge agreement, dated
as of May 17, 1996, made by Aegis Auto Finance
in favor of the Lender substantially in the form of
Exhibit C-1 to the Original Credit Agreement, as
the same may be amended, supplemented or
otherwise modified from time to time.
"Aegis Consumer Finance" shall have the
meaning set forth in the preamble hereof.
"Aegis Consumer Finance Security
Agreement" shall mean the security and pledge
agreement, dated as of May 17, 1996, made by
Aegis Consumer Finance in favor of the Lender
substantially in the form of Exhibit C-2 to the
Original Credit Agreement, as the same may be
amended, supplemented or otherwise modified from
time to time.
"Affiliate" shall mean, with respect to any
Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is
under common control with, such Person. For
purposes of this definition, control of a Person shall
mean the power, direct or indirect, (i) to vote 5%
or more of the securities having ordinary voting
power for the election of directors of such Person
or (ii) to direct or cause the direction of the
management and policies of such Person whether by
contract or otherwise.
"Agreement" shall mean this Amended and
Restated Credit Agreement, as amended,
supplemented or otherwise modified from time to
time in accordance with the terms hereof.
"Board" shall mean the Board of Governors
of the Federal Reserve System.
"Borrower" shall have the meaning set forth
in the preamble hereof.
"Business Day" shall mean any day of the
year other than a Saturday, Sunday or other day on
which the New York Stock Exchange, Inc. is closed
or commercial banks in The City of New York are
authorized or required by law or executive order to
close.
"Capital Stock" shall mean any and all
shares, interests, participations or other equivalents
(however designated) of capital stock of a
corporation, any and all equivalent ownership
interests in a Person (other than a corporation) and
any and all warrants or options to purchase any of
the foregoing.
"Change in Control" shall have the meaning
set forth in the Indenture as in effect on the date
hereof.
"Code" shall mean the Internal Revenue
Code of 1986, as amended from time to time.
"Collateral" shall mean the collective
reference to the "collateral" as defined in each of
the Security Agreements.
"Commonly Controlled Entity" shall mean,
as to any Person, an entity whether or not
incorporated, which is under common control with
such Person within the meaning of Section 4001 of
ERISA or is part of a group which includes such
Person and which is treated as a single employer
under Section 414 of the Code.
"Default" shall mean any condition, act or
event which, with notice or lapse of time or both,
would constitute an Event of Default.
"Dollar" and the sign "$" shall mean lawful
money of the United States of America.
"ERISA" shall mean the Employee
Retirement Income Security Act of 1974, as
amended.
"Event of Default" shall have the meaning
set forth in Section 8.01 hereof.
"Existing Loans" shall have the meaning set
forth in Section 2.01 hereof.
"GAAP" shall mean generally accepted
accounting principles as in effect in the United
States consistently applied.
"Governmental Authority" shall mean any
nation, government, or State, or any political
subdivision thereof, or any court, stock exchange,
entity or agency exercising executive, legislative,
judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee" shall mean, as to any Person
(the "guaranteeing person"), any obligation of the
guaranteeing person guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or
other obligations (the "primary obligations") of any
other third Person (the "primary obligor") in any
manner, whether directly or indirectly, including,
without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i)
to purchase any such primary obligation or any
property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation
or (2) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii)
to purchase property, securities or services
primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the
primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation
against loss in respect thereof; provided, however,
that the term Guarantee shall not include the
endorsements of instruments for deposit or
collection in the ordinary course of business. The
amount of any Guarantee of any guaranteeing
person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount
of the primary obligation in respect of which such
Guarantee is made and (b) the maximum amount for
which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying
such Guarantee, unless such primary obligation and
the maximum amount for which such guaranteeing
person may be liable are not stated or determinable,
in which case the amount of such Guarantee shall
be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined
by the guaranteeing person in good faith.
"III Finance" shall mean III Finance Ltd., a
Cayman Islands corporation.
"III Finance Amended and Restated Master
Loan Agreement" shall mean the Amended and
Restated Master Loan Agreement among Aegis
Auto Finance, Aegis Consumer Finance and III
Finance, a copy of which is attached hereto as
Annex I.
"III Loan Agreements" shall have the
meaning set forth in the Intercreditor Agreement.
"III Finance Documents" shall have the
meaning set forth in the Intercreditor Agreement.
"III Finance Obligations" shall have the
meaning set forth in the Intercreditor Agreement.
"Guarantors" shall mean the collective
reference to Aegis Consumer Finance and Aegis
Auto Finance.
"Indebtedness" shall mean with respect to
any Person, without duplication, (a) all obligations
of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (c)
all obligations of such Person to pay the deferred
purchase price of property or services (excluding
trade payables payable within 30 days of delivery of
goods or services), (d) all obligations of such
Person as lessee under leases which shall have been
or should be, in accordance with GAAP, recorded
as capital lease, (e) all indebtedness of others
secured by (or for which the holder of such
Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property
owned or acquired by such Person, whether or not
the obligations secured thereby have been assumed
(only to the extent of the fair market value of such
asset if such Indebtedness has not been assumed by
such Person), (f) all Guarantees of such Person, and
(h) all obligations of such Person as an account
party in respect of letters of credit and other similar
instruments issued for the account of such Person.
"Indenture" shall mean the Indenture dated
as of April 30, 1997 between Aegis Auto Finance,
as Issuer, and Norwest Bank Minnesota, National
Association, as Trustee, relating to the issuance of
$21,333,333 12% Exchangeable Subordinated Notes
due April 30, 2004.
"Indenture Trustee" shall mean Norwest
Bank Minnesota, National Association.
"Intellectual Property" shall have the
meaning set forth in Section 5.15 hereof.
"Intercreditor Agreement" shall mean the
amended and restated intercreditor agreement, dated
as of the Restatement Date, among III Finance, the
Indenture Trustee and the Lender, in substantially
the form of Exhibit C hereto as the same may be
amended, supplemented or otherwise modified from
time to time.
"Lender" shall have the meaning set forth in
the preamble hereof.
"Lien" shall mean any interest in property
securing an obligation owed to, or a claim by, a
Person other than the owner of such property,
whether such interest is based on the common law,
statute or contract, and including, but not limited
to, the security interest, security title or lien arising
from a security agreement, mortgage, deed of trust,
deed to secure debt, encumbrance or pledge for
security purposes.
"Loan" shall have the meaning specified in
Section 2.01 hereof.
"Loan Parties" shall mean the collective
reference to the Borrower and the Guarantors
"Loan Documents" shall mean and include
this Agreement, the Note, the Security Agreements
and all other documents and instruments executed
and delivered in connection herewith or therewith.
"Margin Stock" shall have the meaning set
forth in Regulation G of the Board.
"Material Adverse Change" shall mean a
material adverse change in, or the disclosure or
discovery of any information not previously
disclosed to the Lender which the Lender
reasonably deems material and adverse relating to,
the business, operations, properties, condition
(financial or otherwise) or prospects of any Loan
Party, individually, or of such Loan Party and its
operating Subsidiaries, taken as a whole.
"Material Adverse Effect" shall mean a
material adverse effect on (a) the business,
operations, properties, condition (financial or
otherwise) or prospects of any Loan Party,
individually, or of such Loan Party and its
operating Subsidiaries, taken as a whole, or (b) the
validity or enforceability of this or any of the other
Loan Documents or the rights or remedies of the
Lender hereunder or thereunder, or (c) the ability of
any Loan Party to perform its obligations under any
Loan Document to which it is a party.
"Maturity Date" shall mean April 30, 2001,
or such earlier date if the Loan is sooner
accelerated in accordance with the terms hereof.
"Multiemployer Plan" shall mean a Plan
which is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Note" shall have the meaning specified in
Section 2.02 hereof.
"Notice of Borrowing" shall have the
meaning set forth in Section 2.03 hereof.
"Obligations" shall mean (i) the unpaid
principal of and premiums, if any, and interest
(including interest accruing at the then applicable
rate provided in this Agreement after the maturity
of the Loan and interest accruing at the then
applicable rate provided in this Agreement after the
filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or
like proceedings, relating to the Borrower whether
or not a claim for post-filing or post-petition interest
is allowed in such proceeding) on the Loan, when
and as due, whether at maturity, by acceleration,
upon one or more dates set for prepayment or
otherwise and (ii) all other obligations and liabilities
of every nature of the Borrower from time to time
owing to the Lender, in each case whether direct or
indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred
(including monetary obligations incurred during the
pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless
of whether allowed or allowable in such
proceeding), which may arise under, out of, or in
connection with, this Agreement or any other Loan
Document or under any other document made,
delivered or given in connection with any of the
foregoing, in each case whether on account of
principal, premium, if any, interest, fees,
indemnities, costs, expenses or otherwise (including
all fees and disbursements of counsel to the Lender)
that are required to be paid by the Borrower
pursuant to the terms of this Agreement or any
other Loan Document.
"Original Credit Agreement" shall have the
meaning set forth in the recitals hereof.
"Original Credit Agreement Obligations"
shall have the meaning set forth in the recitals
hereof.
"Permitted Existing Liens" shall mean the
Liens set forth on Schedule V hereto.
"Permitted Liens" shall the meaning set forth
in the Indenture as in effect on the date hereof.
"Person" shall mean any individual,
partnership, firm, corporation, association, joint
venture, trust, limited liability company or other
entity.
"PBGC" shall mean the Pension Benefit
Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.
"Plan" shall mean, at a particular time, any
employee benefit plan which is covered by ERISA
and in respect of which the Borrower or a
Commonly Controlled Entity is (or, if such plan
were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"Regulation G" shall mean Regulation G
promulgated by the Board.
"Reportable Event" shall mean any of the
events set forth in Section 4043(b) of ERISA.
"Requirement of Law" shall mean, as to any
Person, any law, statute, rule, treaty, regulation, or
determination of an arbitrator, court or other
Governmental Authority, in each case applicable to
or binding upon such Person or any of its properties
or to which any such Person or any of its properties
may be bound or affected.
"Responsible Officer" shall mean any of the
President, the chief executive officer and chief
financial officer of any Loan Party.
"Restatement Date" shall mean the date that
all of the conditions precedent set forth in Section
4.01 hereof have been fulfilled.
"Security Agreements" shall mean the
collective reference to the Aegis Auto Finance
Security Agreement and the Aegis Consumer
Finance Security Agreement.
"Subordinated Notes" shall mean the
$21,333,333 12% Exchangeable Subordinated Notes
due April 30, 2004 issued by Aegis Auto Finance
under the Indenture.
"Subordinated Notes Documents" shall mean
the Indenture, the Subordinated Notes, the Parent
Guaranty (as defined in the Indenture) and each
other document, instrument or certificate issued in
connection with the Subordinated Notes.
"Subsidiary" shall mean, as to any Person,
a corporation, partnership of other entity of which
shares of stock or other ownership interests having
ordinary voting power (other than stock or such
other ownership interests having such power only
by reason of the happening of a contingency) to
elect a majority of the board of directors or other
managers of such corporation, partnership or other
entity are at the time owned, or the management of
which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by
such Person.
Section 1.02. Accounting Terms and
Determinations. Unless otherwise defined or
specified herein, all accounting terms shall be
construed herein, all accounting determinations
hereunder shall be made, all financial statements
required to be delivered hereunder shall be prepared
and all financial records shall be maintained in
accordance with GAAP.
Section 1.03. Other Definitional Terms.
The words "hereof", "herein" and "hereunder" and
words of similar import when used in this
Agreement shall refer to this Agreement as a whole
and not to any particular provision of this
Agreement, and article, section, schedule, exhibit
and like references are to this Agreement unless
otherwise specified.
Defined terms used in Sections 7.01, 7.02
and 7.03 hereof which are not otherwise defined
herein shall have the meanings set forth in the III
Finance Amended and Restated Master Loan
Agreement.
Unless otherwise provided herein, any
defined term which relates to a document shall
include within its definition any amendments,
modifications, renewals, restatements, extensions,
supplements or substitutions which may have been
heretofore or may be hereafter executed in
accordance with the terms thereof.
ARTICLE II. AMOUNT AND TERMS OF
THE LOAN
Section 2.01. The Loan. The Lender has
made loans to the Borrower under the Original
Credit Agreement in a principal amount equal to
$5,000,000 (the "Existing Loans"). FOUR
MILLION DOLLARS ($4,000,000) of the Existing
Loans (the "Loan") will continue under this
Agreement. No portion of the Loan paid or prepaid
hereunder may be reborrowed.
Section 2.02. The Note. (a) The Loan
shall be evidenced by a promissory note
substantially in the form of Exhibit A hereto, duly
executed by the Borrower, dated the Restatement
Date, payable to the order of the Lender in the
principal amount equal to $4,000,000 (the "Note").
The Lender is hereby authorized to record the dates
and amounts of all payments and prepayments of
the principal of the Loan on the Schedule (and each
continuation thereof) attached to and constituting
part of the Note. Such recordation shall be
conclusive in the absence of manifest error;
provided that the failure of the Lender to make any
such recordation or any error in such recordation
shall not affect the obligations of the Borrower
hereunder and under the Note.
(b) The outstanding principal amount of
the Loan shall be payable as set forth in Article III
hereof. The Borrower shall pay interest on the
outstanding principal amount of the Loan from the
date hereof until the principal amount thereof is
paid in full at the rates and pursuant to the terms set
forth in Article III hereof.
ARTICLE III. INTEREST, PAYMENTS,
ETC.
Section 3.01. Interest on the Loan. (a)
Except as otherwise provided herein, the Loan shall
bear interest on the outstanding principal amount
thereof, for each day from the date hereof until the
principal amount thereof shall be paid in full, at a
rate per annum equal to twelve percent (12%),
(calculated on the basis of the actual number of
days elapsed in a year of 360 days).
(b) Except as otherwise provided herein,
all accrued and unpaid interest on the Loan shall be
payable monthly in arrears on the first day of each
calendar month during the term hereof commencing
on the first such day to occur after the Restatement
Date and on the Maturity Date.
(c) If, by the terms of this Agreement or the
Note, the Borrower at any time is required or
obligated to pay interest at a rate in excess of the
maximum rate permitted by applicable law, the rate
of interest shall be deemed to be immediately
reduced to such maximum rate and the portion of
all prior interest payments in excess of such
maximum rate shall be applied and shall be deemed
to have been payments made in reduction of the
outstanding principal amount of the Loan.
Section 3.02. Optional Prepayments. The
Borrower may prepay the Loan on any Business
Day, in whole or in part, without premium or
penalty, on two (2) Business Day's prior written
notice to the Lender. Any such prepayment shall
be accompanied by payment of all accrued and
unpaid interest due and owing to the date of such
prepayment on the principal amount of the Loan so
prepaid. No amount prepaid may be reborrowed.
Section 3.03. Mandatory Repayments and
Prepayments. (a) On the Maturity Date the
Borrower promises to pay to the Lender the
outstanding principal amount of the Loan in full,
together with all accrued and unpaid interest due
and owing hereunder.
(b) After the occurrence of the
"Triggering Event" (as defined in the Intercreditor
Agreement), the Borrower shall, no later than
fifteen (15) days after the dates the annual and
quarterly financial statements referred to in Section
6.01(a) hereof are delivered or are required to be
delivered to the Lender hereunder or if earlier, are
issued by the Borrower, prepay the Loan by the
amount of the Lender's "Pro Rata Share" (as
defined in the Intercreditor Agreement) of
"Accumulated Cash Flow" (as defined in the
Indenture as in effect on the date hereof).
Section 3.04. Funds; Manner of Payment.
Each payment and each prepayment of principal of
and interest on the Loan, and each payment on
account of all other Obligations shall be paid by the
Borrower without set-off or counterclaim to the
Lender at its office located at 000 Xxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000 or to such other
location or account as the Lender may specify to the
Borrower from time to time, in Federal or other
immediately available funds in lawful money of the
United States of America, not later than 1:00 p.m.
(New York City time) on the date on which any
such payment or prepayment is payable. If any
payment hereunder or under the Note becomes due
and payable on a day other than a Business Day,
the maturity thereof shall be extended to the next
succeeding Business Day. If the date for any
payments or prepayments of principal is extended
by operation of law or otherwise, interest thereon
shall be payable at the then applicable rate during
such extension.
Section 3.05. Default Interest. If the
Borrower shall default in the payment of the
principal of or interest on the Loan or any other
Obligation, the Borrower shall on demand pay
interest on such overdue principal amount and, to
the extent permitted by applicable law, on such
overdue interest and any other overdue amount, for
each day at a rate per annum equal to fourteen
percent (14%) (calculated on the basis of the actual
number of days elapsed in a year of 360 days),
accruing from the date such payment was due until
such amount is paid in full (after as well as before
judgment).
Section 3.06. Requirements of Law. (a)
If any Requirement of Law or any change in the
interpretation or application thereof or compliance
by the Lender with any request or directive
(whether or not having the force of law) from any
central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject the
Lender to any tax of any kind whatsoever
with respect to this Agreement, the Note or
the Loan made by it (excluding net income
taxes) or change the basis of taxation of
payments to the Lender in respect thereof;
(ii) shall impose, modify
or hold applicable any reserve, special
deposit, compulsory loan or similar
requirement against assets held by, deposits
or other liabilities in or for the account of,
advances, loans or other extensions of credit
by, or any other acquisition of funds by, any
office of the Lender;
(iii) shall impose on the
Lender any other condition;
and the result of any of the foregoing is to increase
the cost to the Lender, by an amount which the
Lender deems to be material, of making, continuing
or maintaining the Loan or to reduce any amount
receivable hereunder in respect thereof, then, in any
such case, the Borrower shall promptly pay the
Lender such additional amount or amounts as will
compensate the Lender for such increased cost or
reduced amount receivable.
(b) If the Lender shall have determined
that the adoption of or any change in any
Requirement of Law regarding capital adequacy or
in the interpretation or application thereof or
compliance by the Lender or any corporation
controlling the Lender with any request or directive
regarding capital adequacy (whether or not having
the force of law) from any Governmental Authority
made subsequent to the date hereof shall have the
effect of reducing the rate of return on the Lender's
or such corporation's capital as a consequence of its
obligations hereunder to a level below that which
the Lender or such corporation (taking into
consideration the Lender's or such corporation's
policies with respect to capital adequacy) by an
amount deemed by the Lender to be material, then
from time to time, the Borrower shall promptly pay
to the Lender such additional amount or amounts as
will compensate the Lender for such reduction.
(c) If the Lender becomes entitled to
claim any additional amounts pursuant to this
subsection, it shall promptly notify the Borrower of
the event by reason of which it has become so
entitled. A certificate as to any additional amounts
payable pursuant to this subsection submitted by the
Lender to the Borrower shall be conclusive in the
absence of manifest error.
Section 3.07. Application of Payments,
etc. All payments made hereunder shall be applied
to the Obligations as follows: first to accrued and
unpaid interest due and owing, second to the
outstanding principal amount of the Loan, and third
to all other Obligations; provided that upon the
occurrence and during the continuance of a Default
or an Event of Default all monies received or
collected by the Lender hereunder or under any
other Loan Document shall be applied first to all
Obligations due under Section 10.04 hereof, second
to all accrued and unpaid interest due and owing,
third to the outstanding principal amount of the
Loan, and fourth to all other Obligations.
ARTICLE IV. CONDITIONS TO
AMENDMENT AND RESTATEMENT
Section 4.01. Conditions Precedent to
Amendment and Restatement. The obligation of
the Lender to enter into this Agreement is subject to
fulfillment of the following conditions precedent, on
or before the Restatement Date:
(a) Receipt of Documents. Receipt by the
Lender of the following documents, each dated as
of the Restatement Date, as applicable, in form and
substance satisfactory to the Lender and its counsel:
(i This Agreement, executed
and delivered on behalf of the Borrower;
(ii The Note, executed and
delivered on behalf of the Borrower;
(iii A copy of the resolutions of
the Borrower authorizing (A) the execution,
delivery and performance of the Loan
Documents to which it is a party by the
Borrower, and (B) the borrowings
contemplated hereunder, certified by the
Secretary or an Assistant Secretary of the
Borrower as of the Restatement Date, which
certificate shall state that the resolutions
thereby certified have not been amended,
modified, revoked or rescinded as of the
date of such certificate;
(iv A certificate of the Secretary
or an Assistant Secretary of the Borrower
certifying the names and the signatures of
the officers of the Borrower authorized to
sign the Loan Documents to which it is a
party to be delivered hereunder;
(v Copies of (A) the Certificate
of Incorporation of the Borrower and each
amendment thereto and (B) the By-Laws of
the Borrower and each amendment thereto,
certified by the Secretary or an Assistant
Secretary of the Borrower as being true,
complete and correct as of the Restatement
Date;
(vi Original certificates or other
evidence from the Secretary of State or
other appropriate authority of the State of
Delaware and the State of New Jersey,
evidencing the good standing of the
Borrower in the State of Delaware and the
State of New Jersey;
(vii A copy of the resolutions of
each Guarantor authorizing the execution,
delivery and performance of the Loan
Documents to which it is a party and the
granting of the security interest
contemplated under the Security Agreement
to which it is a party, certified by the
Secretary or an Assistant Secretary of such
Guarantor as of the Restatement Date, which
certificate shall state that the resolutions
thereby certified have not been amended,
modified, revoked or rescinded as of the
date of such certificate;
(viii A certificate of the Secretary
or an Assistant Secretary of each Guarantor
certifying the names and the signatures of
the officers of such Guarantor authorized to
sign the Loan Documents to which it is a
party to be delivered hereunder;
(ix Copies of (A) the Certificate
of Incorporation of each Guarantor and each
amendment thereto and (B) the By-Laws of
each Guarantor and each amendment
thereto, certified by the Secretary or an
Assistant Secretary of such Guarantor as
being true, complete and correct as of the
Restatement Date;
(x Original certificates or other
evidence from the Secretary of State or
other appropriate authority of the State of
Delaware and of the State of New Jersey,
evidencing the good standing of such
Guarantor in the State of Delaware and the
State of New Jersey;
(xi The Lender shall have
received copies of each III Finance
Document existing on the Restatement Date
as listed on Schedule I hereto and all
amendments thereto and all Subordinated
Note Documents (all in form and substance
satisfactory to the Lender and its counsel)
certified by the Secretary or an Assistant
Secretary of the Borrower as being true,
complete and correct as of the Restatement
Date;
(xii A certificate of a
Responsible Officer of each Loan Party
certifying that after giving effect to the
amendment and restatement hereof there is
no default under any credit agreement to
which such Loan Party is a party;
(xiii III Finance and the
Indenture Trustee shall have executed and
delivered the Intercreditor Agreement;
(xiv the Subordinated Notes shall
have been issued and the proceeds thereof
shall have been used to reduce the III
Finance Obligations to a principal amount
not greater than $___________.
(xv Opinion of counsel to the
Borrower and the Guarantors substantially in
the form of Exhibit B hereto;
(xvi) The additional
Acknowledgements under the Security
Agreements duly executed and delivered by
the appropriate party thereto;
(xvii Such other documents and
instruments as the Lender or its counsel
shall reasonably request.
(b) Representation and Warranties.
After giving effect to the amendment and
restatement hereof, each of the representations and
warranties made by or on behalf of each Loan Party
herein or in any other Loan Document shall be true
and correct in all respects on and as of the
Restatement Date.
(c) No Default or Event of Default.
After giving effect to the amendment and
restatement hereof, no Default or Event of Default
shall have occurred and be continuing on and as of
the Restatement Date.
(d) Fees. On the Restatement Date, the
Borrower shall have paid all fees and expenses
incurred by the Lender in connection herewith
including, without limitation, fees and expenses of
counsel to the Lender.
(e) No Violation. The making of the Loans
on such Borrowing Date will not violate any
Requirement of Law applicable to the Lender.
(f) Original Credit Agreement
Obligations. The Lenders shall have received
$1,000,000 on account of principal of the Original
Credit Agreement Obligations, together with all
accrued and unpaid interest due and owing on the
Existing Loans to but excluding the Restatement
Date and all other accrued and unpaid Original
Credit Agreement Obligations owing to the Lender
to but excluding the Restatement Date.
ARTICLE V. REPRESENTATIONS AND
WARRANTIES
In order to induce the Lender to enter into
this Agreement, each Loan Party hereby represents
and warrants to the Lender as follows:
Section 5.01. Existence; Conduct of
Business. Each Loan Party, and each of its
respective Subsidiaries, is a duly organized and
valid existing corporation in good standing under
the laws of the State of its incorporation and is duly
qualified to do business and in good standing in
each jurisdiction where the conduct of its business
or the ownership, lease or operation of its property
requires such qualification, except where the failure
to be so qualified could not have a Material
Adverse Effect. Each Loan Party and each of its
respective Subsidiaries has all requisite power and
authority to own and operate its property, to lease
its property it operates as lessee and to conduct and
transact the business in which it is engaged.
Section 5.02. Corporate Power and
Authority. Each Loan Party has all requisite
corporate power and authority to execute and
deliver the Loan Documents to which it is a party
and to carry out the terms and provisions thereof on
its part to be performed and each Loan Party has
taken or caused to be taken all necessary corporate
action to authorize the execution, delivery and
performance by such Loan Party of the Loan
Documents to which it is a party and in the case of
the Borrower, the Loan contemplated hereunder,
and in the case of the Guarantors the granting of the
security interest contemplated by the Security
Agreement to which it is a party. Each Loan
Document to which it is a party constitutes a legal,
valid and binding obligation of each Loan Party,
and is enforceable against such Loan Party in
accordance with its respective terms, except as the
enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of
creditors' rights generally, and by general equitable
principles regardless of whether enforcement is
sought in a proceeding in equity or at law.
Section 5.03. No Violation. Neither the
execution and delivery of the Loan Documents to
which it is a party nor the consummation of the
transactions contemplated thereby, nor compliance
with the provisions thereof will violate any
provision of the Certificate of Incorporation or
By-Laws of any Loan Party or will violate any
Requirement of Law or conflict with, or result in
the breach of, or constitute a default under, any
indenture, mortgage, deed of trust, agreement or
other instrument or contractual obligation to which
any Loan Party is a party or by which it or any of
its property may be bound or affected or result in
the creation or imposition of any Lien upon any
property of any Loan Party thereunder, except, as
contemplated by the Security Agreements.
Section 5.04. Approvals, Authorizations,
Consents, etc. All approvals, authorizations,
consents, orders or other actions or registrations
with or notices to any Person or Governmental
Authority required to be obtained, made or given by
any Loan Party in connection with the execution,
delivery and performance of the Loan Documents to
which it is a party and the consummation of the
transactions contemplated thereby have been duly
and properly obtained, made or given by such Loan
Party and are in full force and effect.
Section 5.05. No Litigation. There are no
pending or, to such Loan Party's knowledge,
threatened actions, suits or other proceedings by or
against any Loan Party or any of its respective
Subsidiaries before any court, arbitrator or other
Governmental Authority which challenge or affect
the legality, validity or enforceability of any Loan
Document or the transactions contemplated thereby
or which individually or in the aggregate could have
a Material Adverse Effect.
Section 5.06. Tax Liability. Each Loan
Party and each of its respective Subsidiaries has
filed or caused to be filed all tax returns (Federal,
State and local) (or requests for extension which are
routinely granted) which are required to be filed
and, except as otherwise permitted by Section 6.04
hereof, has paid all taxes including those which
have become due pursuant to such returns or
pursuant to any assessments made against it or any
of its properties, as the case may be, and all other
material taxes or other charges imposed on it or any
of its properties by any Governmental Authority;
and no tax Liens have been filed.
Section 5.07. Regulation G. No proceeds
of any Loan will be used, directly or indirectly, by
the Borrower for the purpose of purchasing or
carrying any Margin Stock or for the purpose of
reducing or retiring any Indebtedness which was
originally incurred to purchase or carry Margin
Stock or for any other purpose which might cause
the Loan to be a "purpose credit" within the
meaning of Regulation G of the Board.
Section 5.08. Permits, Licenses,
Approvals, Consents, Compliance with
Requirements of Law, etc. Each Loan Party and
each of its respective Subsidiaries has obtained any
and all permits, licenses, approvals and consents of
any Governmental Authority as may be required to
conduct or transact its business or own, lease or
operate its properties and is in material compliance
with all applicable Requirements of Law.
Section 5.09. Financial Statements;
Material Adverse Change. (a) All financial
statements of each Loan Party delivered to the
Lender fully and accurately present the financial
position of such Loan Party, as of the respective
dates thereof in accordance with GAAP.
(b) Since December 31, 1996, there has
been no Material Adverse Change.
Section 5.10. The Investment Company
Act, Etc.. No Loan Party is, or is directly or
indirectly, controlled by any Person which is, an
"investment company" within the meaning of the
Investment Company Act of 1940, as amended. No
Loan Party is subject to regulation under any
Requirement of Law (other than Regulation X of
the Board) which limits its ability to incur
Indebtedness.
Section 5.11. The Security Agreements.
Each of the representations and warranties of each
Guarantor contained in each Security Agreement is
true and correct.
Section 5.12. Ownership of Properties;
Insurance. (a) Each Loan Party has good and
marketable title to any and all of its respective
properties and assets free and clear of Liens, except
as contemplated by the Security Agreements and
Permitted Liens.
(b) Set forth on Schedule II hereto is a
true and accurate list of all insurance maintained by
each Loan Party. Each such policy is in full force
and effect and all premiums due and owing thereon
are current.
Section 5.13. Ownership of the
Guarantors. The Borrower owns beneficially and
of record all of the issued and outstanding Capital
Stock of Aegis Consumer Finance and Aegis
Consumer Finance owns beneficially and of record
all of the issued and outstanding shares of the
Capital Stock of Aegis Auto Finance in each case
free and clear of all Liens other than Liens in favor
of III Finance and the Indenture Trustee.
Section 5.14. Full Disclosure. No
representation or warranty made by or on behalf of
any Loan Party contained in any Loan Document
and no information (written or oral), certificate,
financial statement or report furnished or to be
furnished by or on behalf of any Loan Party
thereunder or in connection with the transactions
contemplated thereby, contains or will contain an
untrue statement of a material fact, or, omits or will
omit to state any material fact (including without
limitation, whether any Loan Party or any of its
respective Subsidiaries or any of their respective
officers or directors (past or present) is (or during
the last five (5) years has been) under civil or
criminal investigation by any Governmental
Authority or is under indictment by any
Governmental Authority) necessary to make the
statements herein or therein contained, in light of
the circumstances in which made, not misleading.
Section 5.15. Intellectual Property. Each
Loan Party and each of its respective Subsidiaries
owns, or is licensed to use, all trademarks, trade
names, copyrights, technology, know-how and
processes necessary for the conduct of its business
as currently conducted (the "Intellectual Property")
except for those the failure to own or license which
could not have a Material Adverse Effect. No
claim has been asserted and is pending by any
Person challenging or questioning the use of any
such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor
does any Loan Party know of any valid basis for
any such claim. The use of such Intellectual
Property by each Loan Party or its respective
Subsidiaries does not infringe on the rights of any
Person, except for such claims and infringements
that, in the aggregate, could not have a Material
Adverse Effect.
Section 5.16. ERISA. Except as set forth
on Schedule III hereto, no Loan Party nor any of its
respective Subsidiaries maintains any Plans, and
each Loan Party agrees to notify the Lender in
advance of forming any Plans. No Loan Party nor
any Commonly Controlled Entity has any
obligations or liabilities with respect to any
employee pension benefit plans or Multiemployer
Plans, nor have any such Persons had any
obligations or liabilities with respect to any such
Plans during the five-year period prior to the date
this representation is made or deemed made. Each
Loan Party will give notice if at any time it or any
Commonly Controlled Entity has any obligations or
liabilities with respect to any employee pension
benefit plan or Multiemployer Plan. All Plans
maintained by any Loan Party or any Commonly
Controlled Entity are in substantial compliance with
all applicable laws (including ERISA). No Loan
Party is an employer under any Multiemployer
Plan.
Section 5.17. Subsidiaries. The Persons
listed on Schedule IV constitute all the principal
operating Subsidiaries of each Loan Party at the
date hereof. Schedule IV sets forth the name, type
of entity and jurisdiction of organization of each
such Subsidiary, the amount of authorized, and
issued and outstanding Capital Stock of each such
Subsidiary, and the holder or holders of such issued
and outstanding Capital Stock of each such
Subsidiary, in each case as of the date hereof.
Section 5.18. III Finance Documents; the
Subordinated Note Documents. Copies of each of
the III Loan Documents, Partnership Agreements,
if applicable, and Pooling and Servicing
Agreements and Subordinated Note Documents
delivered to the Lender are true, accurate and
complete and no "Default" or "Event of Default"
(as defined in each III Finance Documents or the
Indenture) has occurred and is continuing.
Section 5.19. Original Credit Agreement
Obligations. The Borrower hereby confirms to the
Lender that it is indebted to the Lender in the full
amount of the Original Credit Agreement
Obligations and each Loan Party hereby confirms to
the Lender that it has no counterclaims, defenses or
set-offs of any kind or nature with respect to any of
the Original Credit Agreement Obligations.
ARTICLE VI. AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid
in full, the Commitment has been terminated and
this Agreement has been terminated:
Section 6.01. Financial Statements and
Other Information. Each Loan Party shall furnish
to the Lender:
(a) as soon as available, but in any event
within ninety (90) days after the end of each fiscal
year, sixty (60) days after the end of each fiscal
quarter and forty-five (45) days after the end of
each fiscal month of such Loan Party, occurring
during the term of this Agreement, a copy of the
balance sheet of such Loan Party, as at the end of
such fiscal year, fiscal quarter or fiscal month, as
applicable, and the related statements of income,
cash flow and changes in stockholders equity (for
the year-end statements only) for such Loan Party,
for such fiscal period, in each case setting forth in
comparative form the corresponding figures for the
previous year, accompanied by all relevant notes
and, in the case of its fiscal year-end balance sheet,
an opinion, without a going concern or like
qualification or qualification arising out of the scope
of the audit, by independent certified public
accountants of nationally recognized standing as
fairly presenting the financial condition and results
of operation of such Loan Party;
(b) concurrently with the delivery of the
financial statements referred to in Section 6.01(a)
above a certificate of a Responsible Officer of such
Loan Party that such financial statements were
prepared in accordance with GAAP (except that
with respect to monthly and quarterly financial
statements, pursuant to interim accounting
disclosure rules and regulations, certain information
and footnote disclosures normally included in
financial statements prepared in accordance with
GAAP will be condensed or omitted) and that, to
the best of such officer's knowledge after due
inquiry, such Loan Party, during such period has
observed or performed all of its covenants and other
agreements, and satisfied every condition, contained
in the Loan Documents to be observed, performed
or satisfied by it, and that such officer has obtained
no knowledge of any Default or Event of Default,
except as specified in such certificate, which
certificate shall also demonstrate in reasonable
detail the calculations used in determining
compliance with Sections 7.01 and 7.03 hereof;
(c) promptly upon receipt thereof, copies of
all reports (including, without limitation
management letters), if any, submitted to any Loan
Party by its auditors, in connection with each audit
or review of its books by such auditors;
(d) promptly, and in any event no later than
three (3) Business Days, after the commencement
thereof or any adverse development with respect
thereto, written notice of any actions, suits or
proceedings (including arbitrations) threatened or
pending by or against any Loan Party or any of its
respective Subsidiaries before any court, arbitrator
or other Governmental Authority which,
individually or in the aggregate, could have a
Material Adverse Effect;
(e) promptly, upon the issuance thereof,
copies of all notices, reports and registration
statements, if any, which any Loan Party or any of
its respective Subsidiaries files with or receives
from, as applicable, the Securities and Exchange
Commission or other Governmental Authority;
(f) with reasonable promptness, such other
information respecting the business, operations,
properties or condition (financial or otherwise) or
prospects of each Loan Party and its respective
Subsidiaries or the Collateral as the Lender may
reasonably request from time to time.
Section 6.02. Compliance with Laws, etc.
Each Loan Party shall, and shall cause each of its
respective Subsidiaries to, comply (i) in all material
respects with all Requirements of Law and any
change therein or in the application, administration
or interpretation thereof (including, without
limitation any request, directive, guideline or
policy, whether or not having the force of law) by
any Governmental Authority charged with the
administration or interpretation thereof; and (ii)
with all indentures, mortgages, deeds of trust,
agreements, or other instruments or contractual
obligations to which it is a party or by which it or
any of its properties may be bound or affected,
individually or in the aggregate, the failure to
comply therewith could have a Material Adverse
Effect.
Section 6.03. Preservation of Corporate
Existence; Conduct of Business. Each Loan Party
shall, and shall cause each of its respective
Subsidiaries to, preserve and maintain its corporate
existence, rights, franchises and privileges in the
jurisdiction of its incorporation, and qualify and
remain qualified in good standing as a foreign
corporation in each jurisdiction where the failure to
preserve and maintain such qualification could have
a Material Adverse Effect and continue to engage in
the same type of business in which it is engaged on
the Restatement Date.
Section 6.04. Payment of Taxes and
Claims, etc. Each Loan Party shall, and shall
cause each of its respective Subsidiaries to, pay,
when due (after giving effect to any extensions), (i)
all taxes, assessments and governmental charges
imposed upon it or upon any of its properties and
(ii) all claims (including without limitation claims
for labor, materials, supplies or services) which
could, if unpaid, individually or in the aggregate,
have a Material Adverse Effect or become a Lien
upon its respective properties.
Section 6.05. Keeping of Books,
Visitation, Inspection, etc. (a) Each Loan Party
shall, and shall cause each of its respective
Subsidiaries to, keep proper books of record and
account, containing complete and accurate entries of
all financial and business transactions relating to the
business, operations, properties or condition
(financial or otherwise) of such Loan Party in
conformity with GAAP and all Requirements of
Law.
(b) Each Loan Party shall, and shall cause
each of its respective Subsidiaries to, permit any
representative of the Lender to visit and inspect any
of the properties of such Loan Party and each such
Subsidiary to examine the books and records of
such Loan Party and each of its Subsidiaries and to
make copies and take extracts therefrom, and to
discuss the business, operations, properties,
condition (financial or otherwise) or prospects of
such Loan Party and each such Subsidiary or any of
the Collateral with the officers and independent
public accountants thereof and as often as the
Lender may reasonably request, and so long as no
Default or Event of Default shall have occurred and
be continuing, all at such reasonable times during
normal business hours upon reasonable notice.
Section 6.06. Pay Obligations. Each Loan
Party shall, and shall cause each of its respective
Subsidiaries to, pay, discharge or otherwise satisfy
at or before maturity or before they become
delinquent, as the case may be, all obligations under
or pursuant to all its material obligations, except
when the amount or validity thereof is currently
being contested in good faith by appropriate
proceedings and such Loan Party or such Subsidiary
has established adequate reserves in accordance with
GAAP with respect thereto and no Liens in respect
thereof have been filed.
Section 6.07. Notice of Default, etc. Each
Loan Party shall promptly, and in any event within
two (2) Business Days, after such Loan Party has
knowledge thereof, notify the Lender in writing of
(i) the occurrence of any Default or Event of
Default, or (ii) any default, or event, condition or
occurrence which with notice or lapse of time, or
both, would constitute a default by any party thereto
under any indenture, mortgage, deed of trust,
agreement or other instrument or contractual
obligation to which it is a party or by which any of
its properties may be bound or affected, or any
other event or occurrence which in any such case
individually or in the aggregate could have a
Material Adverse Effect.
Section 6.08. Notice of Material Adverse
Change; Material Adverse Effect. Each Loan
Party shall promptly, and in any event within two
(2) Business Days, after such Loan Party becomes,
or reasonably should have become, aware thereof,
give the Lender notice in writing of the occurrence
of any Material Adverse Change, and of the
occurrence of any event or condition that may have
a Material Adverse Effect.
Section 6.09. Further Assurances. At its
sole cost and without expense to the Lender, on
demand, each Loan party shall do, execute,
acknowledge and deliver all and every such further
acts, deeds, conveyances, assignments, notices of
assignment, transfers and assurances as the Lender
shall from time to time reasonably require for better
assuring, conveying, assigning, transferring and
confirming unto the Lender the property and rights
pledged or assigned or intended now or hereafter so
to be, or which any Loan Party may be or may
hereafter become bound to convey, pledge or assign
to the Lender, or for carrying out the intention or
facilitating the performance of the terms of this
Agreement or any of the other Loan Documents, or
for filing, registering or recording of any Security
Agreement.
Section 6.10. Insurance. Each Loan Party
shall, and shall cause each of its respective
Subsidiaries to, maintain the insurance set forth in
Schedule II hereto and shall maintain, and shall
cause each of its Subsidiaries to maintain, such
other insurance as is customary for a Person
engaged in a similar business and each Loan Party
shall, and shall cause each of its respective
Subsidiaries to, pay all insurance premiums payable
for such insurance coverage on or before the due
date therefor. Each Loan Party shall upon request
of the Lender deliver a copy of the policies of such
insurance to the Lender, together with evidence of
payment of all premiums therefor.
Section 6.11. III Finance Documents;
Subordinated Note Documents, Etc. (a) Each
Loan Party shall promptly and in any event within
one (1) Business Day after receipt thereof deliver to
the Lender a copy of all notices, demands and other
communications received by such Loan Party or any
Affiliate thereof from any Person under or in
connection with any III Finance Document or
Subordinated Note Document.
(b) Each Loan Party shall provide to the
Lender a copy of each notice, certificate or other
writing delivered by such Loan Party or any
Affiliate thereof to any Person under or in
connection with any III Finance Document or
Subordinated Note Document simultaneously with
the delivery thereof to such Person.
(c) Each Loan Party agrees that it will not
amend, supplement or otherwise modify any III
Finance Document or Subordinated Note Document
without the prior written consent of the Lender.
(d) Each Loan Party shall provide the
Lender at least ten (10) Business Days' prior
written notice of its intention to enter into any
additional III Finance Document, which notice shall
include a copy of such additional III Finance
Document.
(e) Until all of the Obligations are paid in
full no Loan Party shall directly or indirectly make
any voluntary or optional prepayment or repayment
of any obligation under the Subordinated Note
Documents or redeem, repurchase, purchase or
defease any Subordinated Note or make any
provision therefor whether through a sinking fund,
deposit or any other or similar arrangement.
ARTICLE VII. NEGATIVE COVENANTS
Until all of the Obligations have been paid
in full, the Commitment has been terminated and
this Agreement has been terminated:
Section 7.01. Indebtedness; Liens; Sales of
Assets. No Loan Party shall create, incur, assume
or suffer to exist any Indebtedness, nor allow any of
its Subsidiaries to create, incur, assume or suffer to
exist any Indebtedness, except for (i) Indebtedness
incurred under this Agreement, (ii) Indebtedness
evidenced by the Subordinated Notes, (iii)
Indebtedness incurred under the III Finance
Documents described on Schedule I hereto and (iv)
Indebtedness incurred under the Master Certificate
Purchase Agreement, the Master Trust Agreement,
any Purchase Agreement or any Pooling and
Servicing Agreement. No Loan Party shall sell,
assign (by operation of law or otherwise) or
otherwise dispose of, or create or suffer to exist,
any Lien upon or with respect to, any of its
properties or assets, except for (x) Liens to secure
the Indebtedness described in clauses (ii) through
(iv) above, including without duplication, Permitted
Existing Liens, (y) Permitted Liens and (z) Liens
incurred to evidence the sales of Receivables
pursuant to any Purchase Agreement or Pooling and
Servicing Agreement.
Section 7.02. Merger; Consolidation, Etc.
No Loan Party shall, nor permit any of its
respective Subsidiaries ) to, liquidate, dissolve,
merge into or consolidate with another entity; or
sell, lease or otherwise dispose of all or a
substantial portion of its business or assets, except
for sales of Receivables to various Trusts as
contemplated under the Master Trust Agreement.
No Loan Party shall permit any SPC or Partnership
to engage in any business other than the holding of
the Residual Interest, nor to acquire any other assets
nor incur any Indebtedness not expressly permitted
under Section 4.6 of the III Finance Amended
Master Loan Agreement as in effect on the date
hereof.
Section 7.03. Net Worth of the Borrower.
The sum of the Borrower's consolidated total assets
minus the Borrower's consolidated total liabilities
(each determined in conformity with GAAP and
without duplication) shall not be less than the
greater of (i) $10,000,000 and (ii) ten percent
(10%) of the Borrower's consolidated assets
(without duplication) on any subsequent date;
provided, however that for purposes of this Section
7.03, any Collateral (as defined in the III Finance
Amended and Restated Master Loan Agreement as
in effect on the date hereof) shall constitute an asset
of its applicable owner, and any assets which have
been sold by any person in a non-recourse sale to
any unaffiliated third party in a securitization
transaction shall not constitute assets of any such
Person.
Section 7.04. Dividends, etc. The
Borrower shall not pay any dividends, whether in
cash or property (other than through the issuance of
the shares of its Capital Stock), on or redeem,
repurchase or otherwise acquire any shares of its
Capital Stock.
Section 7.05. Transactions with Affiliates.
No Loan Party will, or will permit any of its
respective Subsidiaries to, enter into, or be a party
to, any transaction with any Affiliate thereof,
except, in the ordinary course of business, and upon
fair and reasonable terms which are no less
favorable to such Loan Party or such Subsidiary
than would be obtained in a comparable arm's
length transaction with a Person not an Affiliate;
provided that for the purposes of this Section 7.05
no Loan Party shall be deemed an Affiliate of any
other Loan Party.
ARTICLE VIII. EVENTS OF DEFAULT
Section 8.01. Events of Default. If any
one or more of the following events (each an
"Event of Default") shall occur:
(a) the Borrower shall fail to pay
any principal of any Loan when due,
whether at maturity, by required prepayment
or otherwise; or the Borrower shall fail to
pay any interest on any Loan or any other
Obligation within two (2) Business Days
after the same shall become due and payable
(whether at maturity, by acceleration or
otherwise); or either Guarantor shall fail to
pay any Obligation in accordance with
Section 9.01 hereof when due; or
(b) Any Loan Party shall fail to
perform or observe any covenant, agreement
or provision contained in Sections 6.07(i) or
6.11 or in Article VII of this Agreement on
its part to be performed; or any Loan Party
shall fail to perform or observe any
covenants or agreement contained in any
other Loan Document to which it is a party;
or any Loan Party shall fail to perform any
covenant, agreement or provision contained
in Sections 6.07(ii), 6.08 through and
including 6.10 of this Agreement and such
default shall continue unremedied for a
period of ten (10) or more days; or
(c) Any Loan Party shall fail to
perform or observe any other covenant or
agreement contained herein (other than as
described in subsections (a) and (b) above)
and such default shall continue unremedied
for a period of fifteen (15) or more Business
Days; or
(d) Any Loan Party or any of its
respective Subsidiaries shall fail to pay any
principal or interest on any Indebtedness
(other than in the case of the Borrower the
Loan) which individually or in the aggregate
exceeds $100,000; or any other event shall
occur or condition shall exist under any
agreement or instrument under or pursuant
to which any such Indebtedness of any Loan
Party or any of its respective Subsidiaries
may have been issued, created, assumed,
guaranteed or secured by any Loan Party or
any of its respective Subsidiaries and any
such payment or other default shall continue
for more than the grace period, if any,
therein specified, if the effect of such event
or condition is to accelerate, or permit the
acceleration of, the maturity of such
Indebtedness; or any such Indebtedness shall
be declared due and payable prior to the
stated maturity thereof; or
(e) any representation or warranty
made or deemed made by or on behalf of
any Loan Party or any of its respective
subsidiaries in any Loan Document to which
it is a party shall prove to have been
incorrect in any material respect when made
or deemed made; or
(f) if any Loan Party or any of
its respective Subsidiaries shall (i) apply for
or consent to the appointment of, or the
taking of possession by, a receiver,
custodian, trustee or liquidator of itself or of
all or a substantial part of its property,
(ii) admit in writing its inability, or be
generally unable, to pay its debts as they
become due, (iii) make a general assignment
for the benefit of creditors, (iv) commence
a voluntary case under the federal
bankruptcy laws (as now or hereafter in
effect), (v) be adjudicated a bankrupt or
insolvent, (vi) file a petition seeking to take
advantage of any other law providing for the
relief of debtors, or (vii) take any corporate
action for the purpose of effecting any the
foregoing; or
(g) a case or other proceeding
shall be commenced without the application
or consent of any Loan Party or any of its
respective Subsidiaries, in any court of
competent jurisdiction, seeking the
liquidation or readjustment of debts, the
appointment of a trustee, receiver, custodian
or liquidator of such Loan Party or any of
its respective Subsidiaries or of all or any
substantial part of its property, or any
similar action with respect to any Loan
Party or any of its Subsidiaries under the
federal bankruptcy laws (as now or hereafter
in effect) or any other laws relating to
bankruptcy, insolvency, reorganization,
winding up or composition or adjustment of
debt, and such case or proceeding shall
continue undismissed, or unstayed and in
effect, for a period of sixty (60) days, or an
order for relief against any Loan Party or
any of its Subsidiaries shall be entered in an
involuntary case under such bankruptcy law;
or
(h) (i) any Person shall engage in
any "prohibited transaction" (as defined in
Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any
"accumulated funding deficiency" (as
defined in Section 302 or ERISA), whether
or not waived, shall exist with respect to
any Plan or any Lien in favor of the PBGC
or a Plan shall arise on the assets of any
Loan Party or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur
with respect to, or proceedings shall
commence to have a trustee appointed, or a
trustee shall be appointed, to administer or
to terminate, any Single Employer Plan,
which Reportable Event or commencement
of proceedings or appointment of a trustee
is, in the reasonable opinion of the Lender,
likely to result in the termination of such
Plan for purposes of Title IV of ERISA, (iv)
any Single Employer Plan shall terminate
for purposes of Title IV of ERISA, (v) any
Loan Party or any Commonly Controlled
Entity shall, or in the reasonable opinion of
the Lender is likely to, incur any liability in
connection with a withdrawal from, or the
insolvency or reorganization of, a
Multiemployer Plan or (vi) any other event
or condition shall occur or exist with respect
to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition,
together with all other such events or
conditions, if any, could have a Material
Adverse Effect; or
(i) a final judgment(s) or order(s)
for the payment of money shall be rendered
against any Loan Party or any of its
respective Subsidiaries which individually or
in the aggregate exceeds $100,000 and such
judgment or order shall continue unsatisfied
and in effect for a period of thirty (30)
consecutive days unless such judgment or
order shall have been vacated, released,
fully bonded or stayed; or
(j) for any reason the Lender
shall fail to have a valid, perfected security
interest in any of the Collateral, subject to
no other Liens other than Liens in favor of
III Finance or the Indenture Trustee, or any
Loan Document shall for any reason cease
to be in full force and effect or any Loan
Party or any other Person shall so assert in
writing; or
(k) a Change in Control shall
occur; or
(l) Aegis Consumer Finance
ceases to be a direct wholly-owned
Subsidiary of the Borrower or Aegis Auto
Finance ceases to be a direct wholly-owned
Subsidiary of Aegis Consumer Finance in
each case free and clear of all Liens other
than Liens in favor of III Finance or the
Indenture Trustee; or
(m) any Loan Party or any Affiliate
thereof shall default under any agreement
with, or other contractual obligation to, the
Lender or any Affiliate of the Lender; or
(n) III Finance or the Indenture
Trustee shall default on any of its covenants
or agreements set forth in the Intercreditor
Agreement; or
(o) Aegis Auto Finance or any of its
Affiliates shall fail to purchase from the
Lender the certificates held by the Lender or
any of its Affiliates in the Aegis Auto
Receivables Trust 96-A simultaneously with
the closing of the Aegis Auto Receivables
Trust 97-4 securitization transaction at the
purchase price therefor agreed to by the
Lender; or
(p) a Material Adverse Change shall
occur;
then, and in any such event, (A) if such event is an
Event of Default specified in paragraphs (f) or (g)
above with respect to any Loan Party, the
Commitment hereunder shall immediately terminate
and the outstanding principal amount of the Loan,
together with accrued and unpaid interest thereon,
and all other Obligations shall immediately become
due and payable without notice of any kind, and (B)
if such event is any other Event of Default and if
such Event of Default shall be continuing, the
Lender may, by notice of default to the Borrower,
terminate the Commitment hereunder, and/or
declare the outstanding principal amount of the
Loan, together with accrued and unpaid interest
thereon, and all other Obligations to be due and
payable forthwith, whereupon the same shall
immediately become due and payable, and/or
pursue any of its other rights, remedies, power and
privileges under the Loan Documents or otherwise.
Except as expressly provided above in this Section
8.01, diligence, presentment, protest, demand for
payment and notice of default or nonpayment and
all other notices of any kind are hereby expressly
waived by the Borrower.
ARTICLE IX. GUARANTEE
Section 9.01. Guarantee. (a) Each
Guarantor hereby jointly and severally
unconditionally and irrevocably guarantees to the
Lender and its respective successors, indorsees,
transferees and assigns, the due, punctual and
complete payment and performance by the
Borrower when and as due, whether at the stated
maturity, by acceleration, upon one or more dates
set for repayment or prepayment or otherwise of the
Obligations.
(b) It is the intention of all parties
hereto that the guarantee set forth in this Article IX
not constitute a fraudulent transfer or conveyance
for the purposes of any applicable bankruptcy,
fraudulent transfer or conveyance law or any other
similar law. To effectuate the foregoing intention,
the Lender and the Guarantor agree that the
obligations of each Guarantor under the guarantee
set forth in this Article IX shall be limited to the
maximum amount as will, after giving effect to such
maximum amount and all other contingent and fixed
obligations of such Guarantor that are relevant
under such laws, and after giving effect to any
collections from rights to receive contribution from
or payments made by or on behalf of the other
Guarantor in respect of such other Guarantor, the
obligations of such Guarantor under the guarantee
set forth in this Article IX would not constitute a
fraudulent transfer or conveyance.
Section 9.02. No Subrogation.
Notwithstanding any payment or payments made by
a Guarantor hereunder or any setoff or application
of funds of any Guarantor by the Lender, no
Guarantor shall be entitled to be subrogated to any
of the rights of the Lender against the Borrower or
any collateral security or guarantee or right of
offset held by the Lender for the payment of the
Obligations, nor shall such Guarantor seek or be
entitled to seek any contribution or reimbursement
from the Borrower in respect of payments made by
such Guarantor hereunder, until all amounts owing
to the Lender by the Borrower and the Guarantors
on account of the Obligations are paid in full and
the Commitment is terminated. If any amount shall
be paid to a Guarantor on account of the
subrogation rights at any time when all of the
Obligations shall not have been paid in full and the
Commitment shall not have been terminated, the
amount shall be held by such Guarantor in trust for
the Lender, segregated from other funds of such
Guarantor, and shall forthwith upon receipt by such
Guarantor, be turned over to the Lender in the
exact form received by such Guarantor (duly
endorsed by such Guarantor to the Lender, if
required), to be applied against the Obligations,
whether matured or unmatured, at the time and in
the order as the Lender may determine.
Section 9.03. Amendments, etc. with
respect to the Obligations; Waiver of Rights.
Each Guarantor shall remain obligated hereunder
notwithstanding that, without any reservation of
rights against such Guarantor, and without notice to
or further assent by such Guarantor, any demand
for payment of any of the Obligations made by the
Lender may be rescinded by the Lender, and any of
the Obligations continued, and the Obligations, or
the liability of any other Person upon or for any
part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated,
compromised, waived, surrendered or released by
the Lender, and this Agreement, any other Loan
Document, and any other documents executed and
delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or
in part, as the Lender may deem advisable from
time to time, and any collateral security, guarantee
or right of offset at any time held by the Lender for
the payment of the Obligations may be sold,
exchanged, waived, surrendered or released. The
Lender shall have no obligation to protect, secure,
perfect or insure any Lien at any time held by it as
security for the Obligations or for the guarantee set
forth in this Article IX or any property subject
thereto. When making any demand hereunder
against a Guarantor, the Lender may, but shall be
under no obligation to, make a similar demand on
the Borrower or any other guarantor (including,
without limitation, any other Guarantor), and any
release of the Borrower or the other guarantor
(including, without limitation, any other Guarantor),
shall not relieve any of its obligations or liabilities
hereunder, and shall not impair or affect the rights,
remedies, powers and privileges, express or
implied, or as a matter of law, of the Lender
against such Guarantor.
Section 9.04. Guarantee Absolute and
Unconditional. Each Guarantor waives any and all
notice of the creation, renewal, extension or accrual
of any of the Obligations and notice of or proof of
reliance by the Lender upon the guarantee of such
Guarantor set forth in this Article IX or acceptance
of the guarantee of such Guarantor set forth in this
Article IX; the Obligations, and any of them, shall
conclusively be deemed to have been created,
contracted or incurred, or renewed, extended,
amended or waived, in reliance upon the guarantee
of each Guarantor set forth in this Article IX; and
all dealings between the Borrower or the
Guarantors, on the one hand, and the Lender, on
the other, shall likewise be conclusively presumed
to have been had or consummated in reliance upon
the guarantee of each Guarantor set forth in this
Article IX. Each Guarantor waives diligence,
presentment, protest, demand for payment and
notice of default or nonpayment and all other
notices of any kind to or upon the Borrower or such
Guarantor with respect to the Obligations. The
guarantee of each Guarantor set forth in this Article
IX shall be construed as a continuing, absolute and
unconditional guarantee of payment, and not of
collection, and without regard to (a) the validity,
regularity or enforceability of this Agreement, any
other Loan Document, any of the Obligations or
any collateral security therefor or guarantee or right
of offset with respect thereto at any time or from
time to time held by the Lender, (b) any defense,
set-off or counterclaim (other than a defense of
payment or performance) which may at any time be
available to or be asserted by the Borrower against
the Lender, or (c) any other circumstance
whatsoever (with or without notice to or knowledge
of the Lender, the Borrower or any Guarantor)
which may or might in any manner or to any extent
vary the risk of such Guarantor or otherwise
constitutes, or might be construed to constitute, an
equitable or legal discharge of the Borrower for the
Obligations, or of such Guarantor under the
guarantee set forth in this Article IX, in bankruptcy
or in any other instance. When pursuing its rights
and remedies hereunder against a Guarantor, the
Lender may, but shall be under no obligation to,
pursue the rights, remedies, powers and privileges
as it may have against the Borrower or any other
Person or against any collateral security or
guarantee for the Obligations or any right of offset
with respect thereto. Any failure by the Lender to
pursue the other rights, remedies, powers or
privileges or to collect any payments from the
Borrower or any other Person or to realize upon
any collateral security or guarantee or to exercise
any the right of offset, or any release of the
Borrower or any the other Person or of any
collateral security, guarantee or right of offset, shall
not relieve a Guarantor of any liability hereunder,
and shall not impair or affect the rights, remedies,
powers or privileges, whether express, implied or
available as a matter of law, of the Lender against
a Guarantor. The guarantee set forth in this Article
IX shall remain in full force and effect and be
binding in accordance with and to the extent of its
terms upon each Guarantor and its successors and
permitted assigns, and shall inure to the benefit of
the Lender, and its respective successors, indorsee,
transferees and assigns, until all the Obligations and
the obligations of the Guarantors under the
guarantee set forth in this Article IX shall have
been satisfied by payment in full and the
Commitment shall have been terminated,
notwithstanding that from time to time while the
Commitment is in effect during the term of this
Agreement the Borrower may be free from any
Obligations.
Section 9.05. Reinstatement. The
guarantee set forth in this Article IX shall continue
to be effective, or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any
of the Obligations is rescinded or must otherwise be
restored or returned by the Lender for any reason
whatsoever, including, without limitation, upon the
insolvency, bankruptcy, dissolution, liquidation or
reorganization of a Guarantor or the Borrower or
upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar
officer for, any Loan Party or any substantial party
of its property, or otherwise, all as though the
payments had not been made.
Section 9.06. Payments. All payments by
a Guarantor under the guarantee set forth in this
Article IX shall be paid by such Guarantor without
set-off or counterclaim to the Lender at its office at
000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000 or to such other location or account as the
Lender may specify to the Guarantors from time to
time, in Federal or other immediately available
funds in lawful money of the United States by 1:00
p.m. (New York City time) on the due date
therefor.
ARTICLE X. MISCELLANEOUS
Section 10.01. Notices. Except as
otherwise provided herein, all notices, requests and
other communications to any party hereunder or
under the other Loan Documents shall be in writing
(including telecopy or similar teletransmission or
writing) and shall be given, to the parties hereto at
the addresses set forth below:
if to the Borrower:
The Aegis Consumer Funding Group, Inc.
000 Xxxxxxxxxx Xxxx.
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to Aegis Consumer Finance:
Aegis Consumer Finance, Inc.
000 Xxxxxxxxxx Xxxx.
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to Aegis Auto Finance:
Aegis Auto Finance, Inc.
000 Xxxxxxxxxx Xxxx.
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to the Lender:
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address or telecopier number as
such party may hereafter specify by written notice
to the other parties hereto. Except as otherwise
provided for herein, each such notice, request or
other communication shall be effective (i) if given
by telecopier when transmitted to the telecopy
number specified in this Section 10.01, (ii) if given
by mail, 72 hours after such communication is
deposited in the mails by certified mail,
return-receipt requested, postage prepaid, addressed
as aforesaid, or (iii) if given by any other means
(including without limitation by air courier), when
delivered at the address specified in this Section
10.01.
Section 10.02. Amendments, Waivers,
etc. None of the Loan Documents or any terms
thereof may be amended, modified or otherwise
supplemented except in writing signed by the parties
hereto. In the case of any waiver of a Default or
Event of Default, any Default or Event of Default
waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or
impair any right consequent thereon.
Section 10.03. No Waiver; Remedies
Cumulative. No failure or delay on the part of the
Lender in exercising any right, remedy, power or
privilege under any Loan Document shall operate as
a waiver thereof, nor shall any single or partial
exercise of, or any abandonment or discontinuance
of steps to enforce any right, remedy, power or
privilege under any Loan Document preclude any
other or further exercise thereof or the exercise of
any other rights, remedies or privileges thereunder.
The rights, remedies, powers and privileges
provided in the Loan Documents are cumulative and
may be exercised singularly or concurrently and are
not exclusive of any other rights, remedies, powers
or privileges provided by law.
Section 10.04. Payment of Expenses,
Indemnity, etc. Each Loan Party jointly and
severally agrees to:
(i) pay or reimburse the Lender on
demand for all its out-of-pocket costs and
expenses incurred in connection with the
development, preparation and execution of,
and any amendment, modification or
supplement to, or any waiver under, any
Loan Document and any other document
prepared in connection therewith, and the
consummation and administration of the
transactions contemplated thereby, including
without limitation the reasonable fees and
disbursements of counsel to the Lender;
(ii) pay on demand all reasonable
costs and expenses of the Lender, including
without limitation the reasonable fees and
disbursements of counsel to the Lender, in
connection with the occurrence or
continuance of a Default or Event of Default
and the enforcement, collection, protection
or preservation (whether through
negotiations, legal proceedings or otherwise)
of this Agreement or any other Loan
Document, the Collateral, any Obligation or
any right, remedy, power or privilege of the
Lender hereunder or under any other Loan
Document;
(iii) pay and hold the Lender harmless
from and against any and all present and
future stamp, excise, recording or other
similar taxes or fees payable in connection
with the execution, delivery, recording and
filing of any Loan Document and hold the
Lender harmless from and against any and
all liabilities with respect to or resulting
from any delay or omission to pay such
taxes or fees; and
(iv) indemnify the Lender and its
Affiliates and each of their respective
directors, officers, employees and agents
and hold each of them harmless from and
against, any and all liabilities, losses,
damages, penalties, actions, judgments,
suits, claims, costs, expenses and
disbursements, including without limitation
the reasonable fees and disbursement of
counsel to the Lender and such other
parties, incurred by any of them in
connection with, arising out of or in any
way relating to any investigation, claim,
litigation or other proceeding, pending or
threatened (whether or not any of them is
designated a party thereto), in connection
with, arising out of or in any way related to
this Agreement or any other Loan Document
or any of the transactions contemplated
herein or therein or any use of the proceeds
of any Loan by the Borrower; provided that
the Lender shall not be entitled to any
indemnification for any of the foregoing
resulting from its gross negligence or willful
misconduct as determined by a final court of
competent jurisdiction.
If and to the extent that the indemnity obligations of
any Loan Party under this Section 10.04 may be
unenforceable for any reason, each Loan Party
hereby agree to make the maximum contribution to
the payment and satisfaction of each of such
indemnity obligations which is permissible under
applicable law.
Section 10.05. Benefits of Agreement.
(a) This Agreement and the other Loan Documents
to which it is a party shall be binding upon and
inure to the benefit of each of the Loan Parties and
the Lender and their respective successors and
assigns, except that no Loan Party may assign or
transfer any of its rights or obligations under this
Agreement or any other Loan Document to which
it is a party without the prior written consent of the
Lender.
(b) The Lender may assign or transfer all or
any of its rights or obligations under any Loan
Document to any Person at any time without the
prior written consent of any Loan Party.
(c) The Lender may sell or grant
participations in all or any of its rights and
obligations under any Loan Document from time to
time to any Person or Persons upon such terms as
the Lender may determine in its sole discretion
without the prior written consent of any Loan Party.
Each Loan Party agrees that to the extent permitted
by applicable law, each such participant shall be
deemed to have the right of setoff in respect of its
participating interest in the Loan and the Note to
the same extent as if the amount of its participating
interest in the Loan and the Note were owing
directly to it as "Lender" under this Agreement or
the Note. The Borrower also agrees that each
participant shall be entitled to all benefits of
Sections 3.06 and 10.04 hereof with respect to its
participating interest in the Loan and the Note. If
the Lender shall sell or grant any such participation,
each Loan Party shall continue to deal solely with
the Lender.
(d) Each Loan Party hereby authorizes the
Lender to disclose any and all information regarding
each Loan Party and each of its respective
Subsidiaries whether received pursuant to the Loan
Documents or otherwise to any assignee or
participant or any proposed assignee or participant.
Section 10.06. Right of Setoff. If an
Event of Default shall have occurred and be
continuing, the Lender is hereby authorized at any
time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all
deposits and any and all indebtedness or other
amounts at any time owing by the Lender to or for
the credit or the account of any Loan Party against
any of and all the obligations of any Loan Party
now or hereafter existing under this Agreement or
any other Loan Document held by the Lender,
irrespective of whether or not the Lender shall have
made any demand under this Agreement or such
other Loan Document and although such obligations
may be unmatured. The rights of the Lender under
this Section 10.06 are in addition to other rights and
remedies (including other rights of setoff) which the
Lender may have.
Section 10.07. Survival of Agreement.
All covenants, agreements, representations and
warranties made by each Loan Party herein, in the
other Loan Documents to which it is a party and in
the certificates or other instruments prepared or
delivered in connection with or pursuant to this
Agreement or any other Loan Document shall be
considered to have been relied upon by the Lender
and shall survive the making by the Lender of the
Loan, the execution and delivery to the Lender of
the Loan Documents regardless of any investigation
made by the Lender, and shall continue in full force
and effect as long as any Obligation is outstanding
and so long as the Commitment has not been
terminated. Without prejudice to the survival of
any other agreements contained herein and the other
Loan Documents, the obligations under Sections
3.06 and 10.04 hereof shall survive payment in full
of the Obligations and termination of this
Agreement.
Section 10.08. GOVERNING LAW.
THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND BE GOVERNED
BY, THE LAWS OF THE STATE OF NEW
YORK, EXCEPT TO THE EXTENT THAT
THE PERFECTION, AND THE EFFECT OF
PERFECTION OR NON-PERFECTION, OF
THE SECURITY INTEREST
CONTEMPLATED UNDER THE SECURITY
AGREEMENTS MAY BE GOVERNED BY THE
LAWS OF ANOTHER JURISDICTION.
Section 10.09. Counterparts. This
Agreement may be executed in any number of
counterparts and by the different parties hereto in
separate counterparts, each of which when so
executed and delivered shall be deemed an original,
and all of which shall together constitute one and
the same agreement.
Section 10.10. Headings Descriptive.
The headings of the several articles and sections of
this Agreement, and the Table of Contents, are
inserted for convenience only and shall not in any
way affect the meaning or construction of any
provisions of this Agreement.
Section 10.11. Severability. Any
provision of this Agreement or any other Loan
Document which is prohibited, unenforceable or not
authorized in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such
prohibition, unenforceability or non-authorization
without invalidating the remaining provisions hereof
or thereof or affecting the validity, enforceability or
legality of such provisions in any other jurisdiction.
Section 10.12. Entire Agreement. This
Agreement and the other Loan Documents constitute
the entire agreement among the parties relative to
the subject matter hereof. Any previous agreement
among the parties with respect to the subject matter
hereof is superseded by this Agreement and the
other Loan Documents. Nothing in this Agreement
or in the other Loan Documents, expressed or
implied, is intended to confer upon any party other
than the parties hereto and thereto any rights,
remedies, obligations or liabilities under or by
reason of this Agreement or the other Loan
Documents.
Section 10.13. Submission to
Jurisdiction; Venue. (a) Any legal action or
proceeding against any Loan Party with respect
to this Agreement or any other Loan Document
to which it is a party may be brought in the
courts of the State of New York located in New
York County or of the United States for the
Southern District of New York, and, by
execution and delivery of this Agreement, each
Loan Party hereby irrevocably accepts for itself
and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid
courts. Each of the parties hereto agrees that a
final judgment in any such action or proceeding
shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing herein
shall affect the right of the Lender to commence
legal proceedings or otherwise proceed against
any Loan Party in any other jurisdiction.
(b) Each Loan Party irrevocably
consents to service of process in the manner
provided for notices in Section 10.01. Nothing in
this Agreement will affect the right of the Lender
to serve process in any other manner permitted
by law.
(c) Each Loan Party irrevocably
waives any objection which it may now or
hereafter have to the laying of venue of any of
the aforesaid actions or proceedings arising out
of or in connection with this Agreement or any
other Loan Document to which it is a party in
the courts referred to in clause (a) above and
hereby further irrevocably waives and agrees not
to plead or claim in any such court that any such
action or proceeding brought in any such court
has been brought in an inconvenient forum.
Section 10.14. Confirmation of Security
Interests, Etc. Each of Aegis Auto Finance and
Aegis Consumer Finance hereby confirms in all
respects the security interests granted to the Lender
by it pursuant to the Aegis Auto Finance Security
Agreement and the Aegis Consumer Finance
Security Agreement, as collateral security, for the
Obligations hereunder and under the other Loan
Documents and hereby confirms that all references
in such Security Agreements to the "Credit
Agreement" shall mean the Credit Agreement as
amended and restated hereby, all references therein
to the III Loan Agreement shall be to the "III
Finance Amended and Restated Master Loan
Agreement" and all references therein to the
"Intercreditor Agreement" shall mean the amended
and restated "Intercreditor Agreement" referred to
herein.
Section 10.15. WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HERETO
HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY
LITIGATION ARISING DIRECTLY OR
INDIRECTLY UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT.
IN WITNESS WHEREOF, each of the
parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto
duly authorized, as of the date first above written.
THE AEGIS CONSUMER FUNDING GROUP,
INC.
By:
Title:
AEGIS CONSUMER FINANCE, INC.
By:
Title:
AEGIS AUTO FINANCE, INC.
By:
Title:
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
By:
Title:
