EXECUTION COPY
GUARANTY
GUARANTY dated as of April 30,
1997 made by The Aegis Consumer Funding
Group, Inc., a Delaware corporation (the
"Guarantor"), in favor of the Lender (as defined in
the Loan Agreement referred to below).
PRELIMINARY STATEMENT
III Finance Ltd., a Cayman Islands
company (the "Lender") is party to the Amended
and Restated Loan Agreement dated as of April
30, 1997 (said agreement, as it may hereafter be
amended, supplemented or otherwise modified
from time to time, being the "Loan Agreement,"
the terms defined therein and not otherwise
defined herein being used herein as therein
defined) with Aegis Auto Finance, Inc., a
Delaware corporation and Aegis Consumer
Finance, Inc., (collectively, the "Borrowers"). The
Loan Agreement restates in full the terms and
conditions of several Existing Loan Agreements
the obligations under which have been guaranteed
by the Guarantor, and it is a condition precedent
to the effectiveness of the Loan Agreement that
the Guarantor shall have executed and delivered
this Guaranty in order to re-evidence its Guaranty
obligations.
NOW, THEREFORE, in
consideration of the premises and in order to
induce the Lender to enter into the Loan
Agreement, the Guarantor hereby reaffirms all of
its obligations under the guarantees previously
made by it in respect of the indebtedness under
the Existing Loan Agreements and the Loan
Agreement and further agrees as follows:
Section 1. Guaranty. The
Guarantor hereby unconditionally and irrevocably
guarantees the punctual payment when due,
whether at stated maturity, by acceleration or
otherwise, of all obligations of the Borrowers now
or hereafter existing under the Loan Agreement,
whether for principal, interest, fees, expenses or
otherwise (such obligations being the "Guaranteed
Obligations"), and agrees to pay any and all
expenses (including reasonable counsel fees and
expenses) incurred by the Lender in enforcing any
rights under this Guaranty. Without limiting the
generality of the foregoing, the Guarantor's
liability shall extend to all amounts that constitute
part of the Guaranteed Obligations and would be
owed by the Borrowers to the Lender or any other
Person under the Loan Agreement but for the fact
that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or
similar proceeding involving either Borrower.
Section 2. Guaranty Absolute. The
Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance
with the terms of the Loan Agreement, regardless
of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such
terms or the rights of the Lender with respect
thereto. The obligations of the Guarantor under
this Guaranty are independent of the Guaranteed
Obligations or any other obligations of any other
party under the Loan Agreement, and a separate
action or actions may be brought and prosecuted
against the Guarantor to enforce this Guaranty,
irrespective of whether any action is brought
against either Borrower or any other party or
whether either Borrower or any other party is
joined in any such action or actions. The liability
of the Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional
irrespective of, and the Guarantor hereby
irrevocably waives any defenses it may now or
hereafter have in any way relating to, any or all of
the following:
(a) any lack of validity or
enforceability of the Loan Agreement or
any agreement or instrument relating
thereto;
(b) any change in the time, manner
or place of payment of, or in any other
term of, all or any of the Guaranteed
Obligations, or any other amendment or
waiver of or any consent to departure from
the Loan Agreement, including, without
limitation, any increase in the Guaranteed
Obligations resulting from the extension of
additional credit to either Borrower or any
of its Affiliates or otherwise;
(c) any taking, exchange, release or
non-perfection of any Collateral, or any
taking, release or amendment or waiver of
or consent to departure from any other
guaranty, for all or any of the Guaranteed
Obligations;
(d) any manner of application of
Collateral, or proceeds thereof, to all or
any of the Guaranteed Obligations, or any
manner of sale or other disposition of any
Collateral for all or any of the Guaranteed
Obligations under the Loan Agreement or
any other assets of either Borrower or any
of its Affiliates; or
(e) any change, restructuring or
termination of the corporate structure or
existence of either Borrower or any of its
Affiliates.
This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any
payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by the
Lender or any other Person upon the insolvency,
bankruptcy or reorganization of either Borrower or
otherwise, all as though such payment had not
been made.
Section 3. Waivers and
Acknowledgments. (a) The Guarantor hereby
waives promptness, diligence, notice of acceptance
and any other notice with respect to any of the
Guaranteed Obligations and this Guaranty and any
requirement that the Lender protect, secure,
perfect or insure any lien or any property subject
thereto or exhaust any right or take any action
against the Borrowers or any other Person or any
Collateral.
(b) The Guarantor hereby waives
any right to revoke this Guaranty, and
acknowledges that this Guaranty is continuing in
nature and applies to all Guaranteed Obligations,
whether existing now or in the future.
(c) The Guarantor acknowledges
that it will receive substantial direct and indirect
benefits from the financing arrangements
contemplated by the Loan Agreement and that the
waivers set forth in this Section 3 are knowingly
made in contemplation of such benefits.
Section 4. Subrogation. The
Guarantor will not exercise any rights that it may
now or hereafter acquire against the Borrowers
that arise from the existence, payment,
performance or enforcement of the Guarantor's
Obligations under this Guaranty, including,
without limitation, any right of subrogation,
reimbursement, exoneration, contribution or
indemnification and any right to participate in any
claim or remedy of the Lender against the
Borrowers or any Collateral, whether or not such
claim, remedy or right arises in equity or under
contract, statute or common law, including,
without limitation, the right to take or receive
from either Borrower directly or indirectly, in cash
or other property or by set-off or in any other
manner, payment or security on account of such
claim, remedy or right, unless and until all of the
Guaranteed Obligations and all other amounts
payable under this Guaranty shall have been paid
in full in accordance with the terms of the Loan
Agreement. If any amount shall be paid to the
Guarantor in violation of the preceding sentence at
any time prior to the payment in full of the
Guaranteed Obligations and all other amounts
payable under this Guaranty, such amount shall be
held in trust for the benefit of the Lender and
shall forthwith be paid to the Lender to be
credited and applied to the Guaranteed Obligations
and all other amounts payable under this
Guaranty, whether matured or unmatured, in
accordance with the terms of the Loan Agreement,
or to be held as Collateral for any Guaranteed
Obligations or other amounts payable under this
Guaranty thereafter arising. If (i
) the Guarantor
shall make payment to the Lender of all or any
part of the Guaranteed Obligations and (ii) all of
the Guaranteed Obligations and all other amounts
payable under this Guaranty shall be paid in full,
the Lender will, at the Guarantor's request and
expense, execute and deliver to the Guarantor
appropriate documents, without recourse and
without representation or warranty, necessary to
evidence the transfer by subrogation to the
Guarantor of an interest in the Guaranteed
Obligations resulting from such payment by the
Guarantor.
Section 5. Representations and
Warranties. The Guarantor hereby represents and
warrants as follows:
(a) The Guarantor (i) is a
corporation duly organized, validly existing
and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly
qualified and in good standing as a foreign
corporation in each other jurisdiction in
which it owns or leases property or in
which the conduct of its business requires
it to so qualify or be licensed except where
the failure to so qualify or be licensed
would not have a material adverse effect
on the business or properties, taken as a
whole, or the condition, financial or
otherwise, of the Guarantor (a "Material
Adverse Effect"), and (iii) has all requisite
corporate power and authority to own or
lease and operate its properties and to carry
on its business as now conducted and as
proposed to be conducted.
(b) The execution, delivery and
performance by the Guarantor of this
Guaranty are within the Guarantor's
corporate powers, have been duly
authorized by all necessary corporate
action, and do not (i) contravene the
Guarantor's charter or bylaws, (ii) violate
any law (including, without limitation, the
Securities Exchange Act of 1934 and the
Racketeer Influenced and Corrupt
Organizations Chapter of the Organized
Crime Control Act of 1970), rule,
regulation (including, without limitation,
Regulations G, T, U and X of the Board of
Governors of the Federal Reserve System),
order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with
or result in the breach of, or constitute a
default under, any loan agreement,
contract, indenture, mortgage, deed of trust,
lease or other instrument binding on or
affecting the Guarantor, any of its
subsidiaries or any of its or their
properties, the effect of which conflict,
breach or default is reasonably likely to
have a Material Adverse Effect, or (iv)
except for the Liens created under the
Loan Agreement, result in or require the
creation or imposition of any Lien upon or
with respect to any of the properties of the
Guarantor or any of its subsidiaries. The
Guarantor is not in violation of any such
law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award,
or in breach of any such contract, loan
agreement, indenture, mortgage, deed of
trust, lease or other instrument, the
violation or breach of which would be
reasonably likely to have a Material
Adverse Effect.
(c) No authorization or approval or
other action by, and no notice to or filing
with, any governmental authority or
regulatory body or any other third party is
required for (i) the due execution, delivery,
recordation, filing or performance by the
Guarantor of this Guaranty, and (ii) the
exercise by the Lender of its rights under
this Guaranty.
(d) This Guaranty has been duly
executed and delivered by the Guarantor.
This Guaranty is the legal, valid and
binding obligation of the Guarantor,
enforceable against the Guarantor in
accordance with its terms except as
enforceability may be limited by
bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or
limiting creditors' rights or by equitable
principles generally.
(e) There are no conditions
precedent to the effectiveness of this
Guaranty that have not been satisfied or
waived.
(f) The Guarantor has,
independently and without reliance upon
the Lender, and based on such documents
and information as it has deemed
appropriate, made its own credit analysis
and decision to enter into this Guaranty.
Section 6. Amendments, Etc. No
amendment or waiver of any provision of this
Guaranty and no consent to any departure by the
Guarantor therefrom shall in any event be
effective unless the same shall be in writing and
signed by the Lender, and then such waiver or
consent shall be effective only in the specific
instance and for the specific purpose for which
given.
Section 7. Notices, Etc. All notice
and other communications provided for hereunder
shall be in writing (including telegraphic,
telecopy
or telex communication) and mailed, telegraphed,
telecopied
, telexed or delivered by overnight
courier of nationally recognized standing to it, if
to the Guarantor, addressed to ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇.
▇▇▇▇▇▇▇
, General
Counsel, if to the Lender, at its address specified
in the Loan Agreement, or as to any party, at such
other address as shall be designated by such party
in a written notice to each other party complying
as to delivery with the terms of this Section 7.
All such notices and other communications shall,
when mailed,
telecopied
, telegraphed, telexed or
sent by courier, be effective when deposited in the
mails, delivered to the telegraph company,
transmitted by
telecopier
, confirmed by telex
answerback
or delivered to the overnight courier,
respectively, addressed as aforesaid.
Section 8. No Waiver, Remedies.
No failure on the part of the Lender to exercise,
and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder
preclude any other or further exercise thereof or
the exercise of any other right. The remedies
herein provided are cumulative and not exclusive
of any remedies provided by law.
Section 9. Indemnification.
Without limitation on any other Guaranteed
Obligations of the Guarantor or remedies of the
Lender under this Guaranty, the Guarantor shall,
to the fullest extent permitted by law, indemnify,
defend and save and hold harmless the Lender
from and against, and shall pay on demand, any
and all losses, liabilities, damages, costs, expenses
and charges (including the reasonable fees and
disbursement of the Lender's legal counsel)
suffered or incurred by the Lender as a result of
any failure of any Guaranteed Obligations to be
the legal, valid and binding obligations of either
Borrower enforceable against such Borrower in
accordance with their terms.
Section 10. Continuing Guaranty;
Assignments under the Loan Agreement. This
Guaranty is a continuing guaranty and shall (a)
remain in full force and effect until the later of the
payment in full of the Guaranteed Obligations and
all other amounts payable under this Guaranty and
the Termination Date, (b) be binding upon the
Guarantor, its successors and assigns, and (c) inure
to the benefit of and be enforceable by the Lender
and its successors, transferees and assigns.
Section 11. Governing Law;
Jurisdiction. This Guaranty shall be governed by,
and construed in accordance with, the laws of the
State of New
York.
Section 12. Reference to and Effect
on Earlier Guaranties. This Guaranty restates the
terms of various earlier guarantees executed by the
Guarantor in connection with the Existing Loan
Agreements. The Guarantor hereby
acknowledges and agrees that this Guaranty is
intended simply to reevidence its existing guaranty
obligations and to restate certain of the terms
relating thereto and is not intended to be deemed
the incurrence of a new guaranty obligation.
IN WITNESS WHEREOF, the
Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto
duly authorized as of the date first above written.
THE AEGIS CONSUMER FUNDING GROUP,
INC
By: _____________________________________
Name: _______________________________
Title: ________________________________