Exhibit 4.3
AFFINITY TECHNOLOGY GROUP, INC.
CONVERTIBLE NOTE PURCHASE AGREEMENT
THIS CONVERTIBLE NOTE PURCHASE AGREEMENT (this "Agreement") is made and
entered into this 3rd day of June, 2002, by and among Affinity Technology Group,
Inc., a Delaware corporation (the "Company"), and each of the investors
identified on Schedule 1 attached hereto (collectively, the "Purchasers").
WHEREAS, the Company desires to enter into this Agreement with the
Purchasers to sell and issue up to $1,500,000 principal amount of its 8%
convertible secured notes (the "Notes") in substantially the form attached
hereto as Exhibit A; and
WHEREAS, the obligations under the Notes issued from time to time under
this Agreement shall be secured by a security interest in the Company's equity
interest in ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation and wholly-owned
subsidiary of the Company ("▇▇▇▇▇▇▇▇▇▇▇.▇▇▇"), pursuant to the Security
Agreement, in substantially the form attached hereto as Exhibit B (the "Security
Agreement"), to be entered into between the Company and the Purchasers at
Closing; and
WHEREAS, the Purchasers desire to enter into this Agreement to acquire
the Notes in the respective amounts set forth on Schedule 1 attached hereto on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, the Notes and the Security Agreement, the parties to this Agreement
mutually agree as follows:
1. AUTHORIZATION AND SALE.
1.1 Authorization. The Company has authorized the issuance and
sale of the Notes to the Purchasers. The Purchasers acknowledge and agree that
the maturity date of any Note issued under this Agreement shall be no earlier
than the first anniversary and no later than the second anniversary of the date
of issuance of such Notes, as such maturity dates shall be set forth on Schedule
1.
1.2 Sale. Subject to the terms and conditions hereof, each
Purchaser agrees separately (and not jointly) to purchase from the Company, and
the Company agrees to sell and issue to each Purchaser, a Note in the principal
amount and with the maturity date as set forth next to each Purchaser's name on
Schedule 1 hereto at the respective purchase price set forth opposite such
Purchaser's name on Schedule 1. Each Purchaser shall pay such purchase price by
check or wire transfer of immediately available funds to an account designated
in writing by the Company.
2. CLOSING; DELIVERY.
2.1 Initial Closing. The initial closing of the purchase and
sale of the Notes under this Agreement shall take place at the offices of the
Company, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on June
3, 2002 (the "Initial Closing"), or at such other time and date as the parties
may agree in writing.
2.2 Subsequent Closings. Following the Initial Closing, the
Company may issue and sell additional Notes under this Agreement, on the terms
set forth in this Agreement, provided that the aggregate principal amount of all
Notes issued by the Company at the Initial Closing and each subsequent closing
(a "Subsequent Closing" and, together with the Initial Closing, the "Closing")
shall not exceed $1,500,000. Schedule 1 to this Agreement and the Security
Agreement shall be amended and restated at each Subsequent Closing to reflect
the Notes issued to each Purchaser under this Agreement. Any Notes issued by the
Company at a Subsequent Closing shall be considered "Notes" for all purposes of
this Agreement, and each additional Purchaser shall be a "Purchaser" for all
purposes of this Agreement. Notwithstanding the foregoing, the Company shall not
issue any Notes if an Event of Default shall have occurred and be continuing
under any Note. For purposes of the immediately preceding sentence, an "Event of
Default" shall have the meaning given to such term in each respective Note.
2.3 Delivery. At the Closing, subject to the terms and
conditions hereof, the Company will deliver to the Purchasers the Notes (as set
forth on Schedule 1 hereto) and the Security Agreement, each duly executed by
the Company and dated the date of the Closing, and such other certificates,
consents, waivers and agreements as are reasonably requested by any Purchaser
(together with this Agreement and the Security Agreement, collectively the
"Transaction Documents"), against payment of the purchase price therefor payable
as of the date of such Closing by check or wire transfer. At the Closing, each
Purchaser shall deliver to the Company the Security Agreement, duly executed by
such Purchaser and dated as of the date of Closing.
2.4 Conditions to Closing. Each Purchaser's obligation to
purchase, and the Company's obligation to sell, the Notes at the Closing is
subject to the Purchasers having received a certificate, dated as of the Closing
Date, of the President of the Company certifying that the board of directors of
the Company has authorized the transactions contemplated by this Agreement and
that the Certificate of Incorporation and Bylaws of the Company attached thereto
are true, complete and correct.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchasers as follows:
3.1 Organization and Good Standing. Each of the Company and
its subsidiaries is a corporation duly organized and validly existing under the
laws of Delaware. Each of the Company and its subsidiaries has all requisite
corporate power and authority necessary to conduct its business as it is now
being conducted and as proposed to be conducted and to own or lease the
properties and assets it now owns or holds under lease, and is duly qualified
and in good standing as a foreign corporation in each jurisdiction where the
failure to qualify would have a material adverse effect upon its operations or
financial condition. The Company owns all the issued and outstanding capital
stock of ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, and no other person, firm or entity has an equity
interest in ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
3.2 Capital Stock. The authorized capital stock of the Company
consists of 60,000,000 shares of common stock, par value $.0001 per share
("Common Stock"), and 5,000,000 shares of preferred stock, par value $.0001 per
share ("Preferred Stock"). As of the close of business on May 1, 2002, (i)
40,731,355 shares of Common Stock were issued and outstanding, (ii) 2,856,690
shares of Common Stock were reserved for issuance upon exercise of options
granted by the Company under the Company's stock option plans, (iii) 1,439,848
shares of Common Stock were reserved for issuance upon exercise of warrants
issued by the Company to certain investors and (iv) no shares of Preferred Stock
were issued and outstanding. Except as set forth in the immediately preceding
sentence or in the SEC Reports (as defined below), as of May 1, 2002, there was
outstanding (i) no shares of capital stock or other voting securities of the
Company, (ii) no securities of the Company convertible into or exchangeable for
shares of capital stock or voting securities of the Company, and (iii) no
options, warrants or other rights to acquire from the Company, and no
subscriptions or other rights, convertible securities, agreements, arrangements
or commitments of any character, obligating the Company to issue, transfer or
sell any capital stock, voting securities or securities convertible into or
exchangeable for capital stock or voting securities of the Company or obligating
the Company to grant, extend or enter into any such option, warrant,
subscription or other right, convertible security, agreement, arrangement or
commitment, other than under this Agreement and the Notes issued hereunder. All
of the Company's outstanding securities have been duly and validly authorized
and issued and are fully paid and nonassessable. The shares of Common Stock that
may be issued upon conversion of the Notes are duly authorized and, when issued
in accordance with the terms of the Notes, will be validly issued, fully paid
and nonassessable.
3.3 Authorization. The Company has the full corporate power
and authority to enter into this Agreement and each of the Transaction Documents
and to perform all of its obligations contemplated hereunder and thereunder. The
execution, delivery and performance of this Agreement and each of the
Transaction Documents to which the Company is a party have been duly authorized
by all necessary corporate action, and this Agreement and each of the
Transaction Documents constitutes (or will constitute, upon execution thereof) a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to laws of general application
relating to bankruptcy, insolvency and the relief of debtors and rules and laws
governing specific performance, injunctive relief and other equitable remedies.
No further authorization on the part of the Company, its board of directors or
its stockholders is necessary to consummate the transactions contemplated by
this Agreement or any of the Transaction Documents. Except for any filings
required by federal or state securities laws that have been or will be made by
the Company, no consent, approval, authorization or order of, or declaration by,
filing or registration with, any court or governmental or regulatory agency or
board is or will be required in connection with the execution and delivery of
this Agreement and the Transaction Documents and the consummation of the
transactions contemplated hereby or thereby.
3.4 SEC Reports; Financial Statements. The Company has
furnished to the Purchasers the Company's proxy statement, dated as of April 30,
2002, with respect to its 2002 annual meeting of stockholders (the "Proxy
Statement"), annual report on Form 10-K for the year ended December 31, 2001
(the "Form 10-K"), and quarterly report on Form 10-Q for the quarter ended March
31, 2002 (together with the Proxy Statement and the Form 10-K, the "SEC
Reports"), which contain, among other things, the Company's 2001 audited
consolidated financial statements and interim unaudited consolidated condensed
financial statements for the quarter ended March 31, 2002 (collectively, the
"Financial Statements"). The Financial Statements consist of the consolidated
statements of operations, stockholders' equity and cash flows of the Company for
each of the three years in the period ended December 31, 2001, the consolidated
balance sheet of the Company as of December 31, 2001, the condensed consolidated
statements of operations and cash flows for the three months ended March 31,
2002 and March 31, 2001, and the condensed consolidated balance sheet as of
March 31, 2002 (the "Balance Sheet"). As of its filing date, each SEC Document
complied in all material respects with the requirements of the Securities
Exchange Act of 1934, as amended, and did not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The Financial Statements (a) are in accordance with the books
and records of the Company, (b) have been prepared in accordance with generally
accepted accounting principles ("GAAP") consistently applied (subject, in the
case of interim financial statements, to normal recurring year-end adjustments
and the absence of notes), and (c) fairly present the financial position of the
Company as of the respective dates thereof, and the results of operations and
cash flows for each of the periods presented.
3.5 Absence of Undisclosed Liabilities. Except as disclosed in
the SEC Reports, neither the Company nor any of its subsidiaries has any
liabilities or obligations (whether accrued, absolute, contingent, unliquidated
or otherwise, whether due or to become due) other than (a) liabilities or
obligations reserved against or otherwise disclosed in the Balance Sheet, or (b)
other liabilities or obligations (including accounts payable, accrued expenses,
wages and salaries) that were incurred after the date of the Balance Sheet in
the ordinary course of business consistent with past practice.
3.6. Absence of Material Changes. Except as disclosed in the
SEC Reports, since the date of the Balance Sheet, the Company and its
subsidiaries have conducted their business in the ordinary course, consistent
with past practice, and there has not been (a) any material adverse change in
the condition (financial or otherwise), results of operations, business, assets,
or liabilities of the Company or any subsidiary, individually or taken together
as a whole, or any event or condition which would have such a material adverse
change, (b) any waiver or cancellation of any right of the Company or any
subsidiary to the extent such waiver or cancellation has had or would have a
material adverse effect on the condition (financial or otherwise) results of
operations, business or assets of the Company or any subsidiary, or the
cancellation of any material debt or claim held by the Company or any
subsidiary, (c) any encumbrances upon the assets of the Company or any
subsidiary, other than a Permitted Lien (as defined in Section 5(c)(ii) hereof),
(d) any sale, assignment or transfer of any tangible or intangible assets of the
Company or any subsidiary, except in the ordinary course of business, (e) any
loan by the Company or any subsidiary to any officer, director, employee,
consultant or shareholder of the Company or any subsidiary (other than advances
to such persons in the ordinary course of business in connection with bona fide
business expenses), (f) any damage, destruction or loss (whether or not covered
by insurance) materially and adversely affecting the assets, property, financial
condition or results of operations of the Company or any subsidiary,
individually and taken as a whole, (g) any change in the accounting methods,
practices or policies of the Company or any subsidiary, (h) any indebtedness
incurred for borrowed money by the Company or any subsidiary, other than under
this Agreement, (i) any default that has not been waived or material adverse
amendment or premature termination of any material contract of the Company or
any subsidiary or (j) any agreement or commitment (contingent or otherwise) by
the Company or any subsidiary to do any of the foregoing.
3.7 Title to Properties and Assets; Liens, Etc. The Company and each of
its subsidiaries has good and marketable title to its properties and assets,
including the properties and assets reflected in the Balance Sheet, and good
title to its leasehold estates, in each case subject to no mortgage, pledge,
lien, lease, encumbrance or charge, other than Permitted Liens. All facilities,
equipment, fixtures, and other properties owned, leased or used by the Company
and its subsidiaries are in reasonable operating condition and repair and are
reasonably fit and usable for the purposes for which they are being used. The
Company and each of its subsidiaries are in substantial compliance with all
material terms of each lease to which they are parties or otherwise bound.
3.8 Tax Matters. The Company and its subsidiaries have filed all tax
returns that they are required to file pursuant to any applicable law, and all
such returns are complete and correct in all material respects. The Company and
its subsidiaries have paid all taxes due and owing by them and have withheld and
paid over all taxes which they are obligated to withhold from amounts paid or
owing to any employee, partner, creditor or other third party. Neither the
Company nor any subsidiary has waived any statute of limitations with respect to
taxes or agreed to any extension of time with respect to a tax assessment or
deficiency. The federal income tax returns of the Company and its subsidiaries
have never been audited, no federal, state or local tax audits are pending or
being conducted with respect to the Company or any of its subsidiaries, no
information related to tax matters has been requested by any federal, state or
local taxing authority, and no notice indicating an intent to open an audit or
other review has been received by the Company or any of its subsidiaries from
any federal, state or local taxing authority.
3.9 Compliance with Law and Other Instruments. To the Company's
knowledge, the Company and its subsidiaries have complied in all material
respects with, and are not in material violation of, any and all statutes, laws,
regulations, decrees and orders of the United States and of all states,
municipalities and agencies applicable to the Company, its subsidiaries or the
conduct of their respective businesses. Upon consummation of this Agreement,
neither the Company nor any of its subsidiaries will be in default in any
material respect in the performance of any obligation, agreement or condition
contained in any bond, debenture, promissory note, indenture, loan agreement or
other material contract to which it is a party or by which its properties are
bound. Neither the issuance of the Notes, or the execution and delivery of this
Agreement and the Transaction Documents nor the consummation of the transactions
contemplated herein or therein, will (i) conflict with, constitute a breach of,
constitute a default under, or an event which, with notice or lapse of time or
both, would be a breach of or default under, the respective certificates of
incorporation or bylaws of the Company or any of its subsidiaries, (ii) conflict
with or constitute a breach of, constitute a default under, or an event which,
with notice or lapse of time or both would be a breach of or default under, any
agreement, indenture, mortgage, deed of trust or other instrument or undertaking
to which the Company or any of its subsidiaries is a party or by which any of
its properties are bound which would have a material adverse effect on the
Company's business, (iii) constitute a violation of any law, regulation,
judgment, order or decree applicable to the Company or any of its subsidiaries,
(iv) result in the creation or imposition of any lien or material charge or
encumbrance upon any property of the Company or any of its subsidiaries, other
than under the Security Agreement, or (v) permit any party to terminate any
agreement to which the Company or any of its subsidiaries is a party or
beneficiary thereto which would have a material adverse effect on the Company's
business.
3.10 Litigation. Except as disclosed in the SEC Reports, there
is no litigation or governmental proceeding or investigation pending or, to the
Company's knowledge, threatened against or affecting the Company or any of its
subsidiaries, which would reasonably be expected to result in any judgment or
liability which would materially and adversely affect any of the property and
assets of the Company or any of its subsidiaries, or the right of the Company or
any of its subsidiaries to conduct its or their businesses as now conducted or
as proposed to be conducted.
3.11 Intellectual Property. Except as disclosed in the SEC
Reports, the Company and its subsidiaries own or possess sufficient legal rights
to all patents, trademarks, service marks, trade names, copyrights, trade
secrets, licenses, information and other intellectual property and proprietary
rights and processes (collectively, "Intellectual Property") used in their
business as now conducted and as presently proposed to be conducted, without any
known infringement of the rights of others. The Company has not received any
communications alleging that the Company has violated or, by conducting its
business as presently proposed, would violate any of the patents, trademarks,
service marks, trade names, copyrights, trade secrets or other proprietary
rights of any other person or entity. The Company has transferred and assigned
all of its rights under the following patents to ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇: U.S. Patent
No. 5870721 ("System and Method for Real Time Loan Approval"); U.S. Patent No.
5940811 ("Closed Loop Financial Transaction Method and Apparatus"); and U.S.
Patent No. 6105007 ("Automatic Financial Account Processing System")
(collectively, the "Patents").
3.12 Disclosure. Neither this Agreement nor any of the
Transaction Documents contains any untrue statement of any material fact, or
omits to state any material fact that is necessary in order to make the
statements contained herein or therein, in light of the circumstances under
which they were made, complete and not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each Purchaser hereby severally represents and warrants to the Company
as follows:
4.1 Purchase for Own Account. Such Purchaser is acquiring the
Notes and the securities into which they may be converted for its own account,
for investment and not with a view to or in connection with any distribution or
resale thereof. Such Purchaser does not have any contract, understanding,
agreement or arrangement with any person to sell or transfer the Notes or the
securities into which they may be converted.
4.2 Restrictions on Transfer. Such Purchaser understands that
(a) neither the Notes nor any securities issuable upon conversion thereof has
been registered under the Securities Act of 1933, as amended (the "Securities
Act"), or the securities laws of any jurisdiction and (b) the economic risk of
an investment in the Notes must be borne for an indefinite period of time
because neither the Notes nor the securities into which they may be converted
may be sold or otherwise transferred unless subsequently registered under the
Securities Act or an exemption from registration under the Securities Act is or
becomes available.
4.3 Knowledge of the Purchaser. Such Purchaser (a) is
knowledgeable with respect to the financial, tax and business aspects of
ownership of the Notes and the securities into which they may be converted and
of the business of the Company and (b) can bear the economic risk of an
investment in the Notes including the complete loss thereof. By virtue of his or
its own knowledge and experience in financial and business matters, such
Purchaser is capable of evaluating the merits and risks of making this
investment. Such Purchaser is an "accredited investor" within the meaning of
Rule 501(a) of Regulation D promulgated under the Securities Act.
4.4 Power and Authority. Such Purchaser has the requisite
power and authority to enter into this Agreement, to purchase the Notes and to
carry out and perform his or its obligations under the terms of this Agreement.
The execution, delivery and performance by such Purchaser of this Agreement and
the other Transaction Documents to which such Purchaser is a party do not
contravene the terms of such Purchaser's organizational documents and do not
violate, conflict with or result in any breach or contravention of any contract
or agreement of such Purchaser or constitute a violation of any law, regulation,
judgment, order or decree applicable to such Purchaser
4.5 Due Execution. This Agreement has been duly authorized,
executed and delivered by such Purchaser and, upon due execution and delivery by
the Company, will be a valid and binding agreement of such Purchaser, subject to
laws of general application relating to bankruptcy, insolvency and the relief of
debtors and rules and laws governing specific performance, injunctive relief and
other equitable remedies.
5. COVENANTS. Until the date that any amounts due under the Notes are
no longer outstanding:
(a) The Company and each of its subsidiaries will maintain true books
and records of account in which full and correct entries will be made of
all its business transactions pursuant to a system of accounting
established and administered in accordance with GAAP consistently applied,
and will set aside on its books all such proper accruals and reserves as
shall be required under GAAP consistently applied.
(b) The Company will furnish the Purchasers, promptly upon request,
such information about the business, condition (financial or otherwise) or
operations of the Company and its subsidiaries as the Purchasers may from
time to time reasonably request, provided that the requested information is
reasonably available to the Company or can be easily obtained and provided
further that each requesting Purchaser shall have entered into a
confidentiality agreement with the Company in form and substance reasonably
satisfactory to the Company.
(c) The Company shall not, and shall not permit any of its
subsidiaries to, directly or indirectly, take any of the following actions
without first obtaining the approval of Purchasers holding at least a
majority of the aggregate principal balance of all Notes then outstanding:
(i) create, incur, or assume any indebtedness for
money borrowed in excess of $500,000 in the aggregate by the
Company or any of its subsidiaries other than indebtedness
pursuant to this Agreement;
(ii) mortgage, encumber, create, or incur liens on
the assets of the Company or any of its subsidiaries, other
than (A) under this Agreement and the Security Agreement, (B)
liens incurred in the ordinary course of business, (C) liens
in favor of carriers, warehousemen, mechanics, landlords and
materialmen and other similar persons that are incurred in the
ordinary course of business for sums not yet due and payable;
(D) liens for current taxes incurred in the ordinary course of
business that are not delinquent or remain payable without any
penalty or are being contested in good faith by appropriate
proceedings; (E) statutory liens of banks and statutory rights
of set-off; (F) as to any leased assets or properties, rights
of the lessors thereof, including liens evidenced by the
filing, for notice purposes only, of financing statements in
respect of true leases; (G) liens incurred in the ordinary
course of business in connection with workers' compensation,
unemployment insurance or other forms of governmental
insurance or benefits, or to secure the performance of letters
of credit, bids, tenders, statutory obligations, surety and
appeal bonds, leases, government contracts and other similar
obligations (other than obligations for borrowed money)
entered into in the ordinary course of business; and (H) liens
and encumbrances that do not materially detract from the value
of the property subject thereto or materially impair the
operations of the Company and its subsidiaries (collectively,
"Permitted Liens");
(iii) pay, or set aside any sums for the payment of,
any distributions or dividends on the equity securities of the
Company, or repurchase or otherwise acquire any of the
Company's outstanding equity securities, other than in
connection with the termination of an employee's employment
with the Company or any of its subsidiaries;
(iv) cause ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ to convey, distribute,
assign or transfer the Patents to the Company or any affiliate
thereof; or
(v) agree or otherwise commit to take any of the
actions set forth in the foregoing clauses (i) through (iv).
(d) In case any one or more of the covenants and/or agreements
set forth in this Agreement or the Transaction Documents shall have
been breached by any party hereto, the Purchasers, with respect to a
breach by the Company, and the Company, with respect to a breach by the
Purchasers, may proceed to protect and enforce his or its rights either
by suit in equity or by action at law or by both, including but not
limited to an action for damages as a result of any such breach or an
action for specific performance of any such covenant or agreement
contained in the Transaction Documents.
7. MISCELLANEOUS.
7.1 Entire Agreement; Effectiveness. This Agreement and the
documents referred to herein constitute the entire agreement among the parties
with respect to the subject matter hereof, and no party shall be liable or bound
to any other party in any manner by any warranties, representations or covenants
except as specifically set forth herein or therein. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the successors
and assigns of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any third party any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
7.2 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of South Carolina, without regard to the
conflicts of laws provisions of the State of South Carolina or any other state.
7.3 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.4 Headings. The headings used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
7.5 Notices. Any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given upon
personal delivery, after three business days following deposit with the United
States Post Office, postage prepaid, or after one business day if sent by
confirmed telecopy, addressed:
(a) If to the Company: Affinity Technology Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as the Company shall have furnished to the Purchasers
in writing; and
(b) If to any Purchaser, the address set forth on Schedule 1 attached
hereto or at such other address as such Purchaser shall have furnished to the
Company in writing.
7.6 Severability. In case any provision of this Agreement
shall be invalid, illegal or unenforceable, it shall, to the extent practicable,
be modified so as to make it valid, legal and enforceable and to retain as
nearly as practicable the intent of the parties, and the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
7.7 Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing to the Company or the Purchasers upon any
breach, default or noncompliance of the Purchasers or the Company under this
Agreement shall impair any such right, power or remedy, nor shall it be
construed to be a waiver of any such breach, default or noncompliance, or any
acquiescence therein, or of any similar breach, default or noncompliance
thereafter occurring. It is further agreed that any waiver, permit, consent or
approval of any kind or character on the part of the Company or the Purchasers
of any breach, default or noncompliance under this Agreement or any waiver on
the Company's or the Purchasers' part of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing and that all remedies, whether under this
Agreement, by law, or otherwise afforded to the Company and the Purchasers,
shall be cumulative and not alternative.
7.8 Amendments and Waivers. Except as otherwise expressly
provided herein, any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance, either retroactively or prospectively and either for a specified
period of time or indefinitely) with the written consent of the Company and the
Purchasers holding at least a majority of the principal amount of all Notes then
outstanding.
7.9 Survival of Covenants and Agreements, Representations and
Warranties. Except as expressly provided in Section 5, all covenants and
agreements contained herein or made in writing by the Company or the Purchasers
in connection with the transactions contemplated hereby shall survive the
execution and delivery of this Agreement, the Transaction Documents and the
Closing until the respective Purchaser ceases to own any Notes. All warranties
and representations contained herein shall survive for a period of two years
after the Closing.
7.10 Further Assurances. Prior to and after the Closing, at
the request of the Purchasers, the Company will take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and cooperate in doing,
as the Purchasers may reasonably deem necessary or desirable, all things
necessary to consummate and make effective, in a practicable manner, the Closing
and the other transactions contemplated by this Agreement and the Transaction
Documents, including, without limitation, (a) the execution and delivery of any
additional waivers, consents, confirmations, agreements, instruments or
documents, or the taking of all actions, whether prior to or after the Closing,
necessary to issue and sell the Notes to the Purchasers and (b) to otherwise
carry out the purpose and intent of this Agreement and the Transaction
Documents.
[THE NEXT PAGE IS THE SIGNATURE PAGE.]
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date of Closing.
THE COMPANY: AFFINITY TECHNOLOGY GROUP, INC.
a Delaware corporation
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
[SIGNATURE PAGES FOR THE PURCHASERS FOLLOW THIS PAGE.]
PURCHASER SIGNATURE PAGE
Principal Amount of
Note Purchased: $
By:
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Name:
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Title:
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Schedule 1
Name and Address Principal Amount
of Purchaser of Note Acquired Purchase Price Maturity Date
8% CONVERTIBLE SECURED NOTE
NEITHER THIS NOTE NOR THE SECURITIES ISSUABLE UPON CONVERSION HEREOF HAVE BEEN
REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE OR UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"). THIS NOTE AND THE SECURITIES ISSUABLE UPON CONVERSION
HEREOF ARE RESTRICTED AND MAY NOT BE OFFERED, RESOLD, PLEDGED OR TRANSFERRED
EXCEPT AS PERMITTED UNDER THE ACT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT OR AN EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
No. X US $XXXXXX
Affinity Technology Group, Inc.
8% CONVERTIBLE SECURED NOTE DUE XXXXXX
THIS NOTE is issued by Affinity Technology Group, Inc., a corporation
organized and existing under the laws of the State of Delaware (the "Company"),
and is designated as its 8% Convertible Secured Note Due XXXXXX.
FOR VALUE RECEIVED, the Company promises to pay to XXX XXX, or his or
its permitted assigns (the "Holder"), the principal sum of XXXXX XXXXXXX and
00/100 Dollars ($XXX,XXX) plus interest on the principal sum outstanding from
time to time at the rate of 8% per annum on XXXXXX (the "Maturity Date").
Accrual of interest shall commence on the first day after the date of initial
issuance and continue until payment in full of the principal sum has been made
or duly provided for. If the Maturity Date is not a business day in the State of
South Carolina, then such payment shall be made on the next succeeding business
day. The delivery of a check shall constitute payment of principal and interest
hereunder and shall satisfy and discharge the liability for principal and
interest under this Note to the extent of the sum represented by such check plus
any amounts withheld in accordance with paragraph 1 below.
This Note is subject to the following additional provisions:
1. The Company shall be entitled to withhold from all payments of interest
on this Note any amounts required to be withheld under the applicable provisions
of federal and state income tax laws and other applicable laws at the time of
such payments, and the Holder shall execute and deliver all required
documentation in connection therewith.
2. This Note has been issued in reliance upon investment representations of
the original purchaser hereof and may be resold, transferred and disposed of
only in compliance with the Securities Act of 1933, as amended (the "Act"), and
all applicable state and foreign securities laws. The Holder shall deliver
written notice to the Company of any proposed transfer of this Note. In the
event of any proposed transfer of this Note, the Company may require, prior to
issuance of a new Note in the name of the transferee, that it receive reasonable
transfer documentation (including legal opinions) that the transfer of the Note
will not cause a violation of the Act or any applicable state or foreign
securities laws. Prior to due presentment for transfer of this Note, the Company
and any agent of the Company may treat the person in whose name this Note is
duly registered on the Company's Note Register as the owner hereof for the
purpose of receiving payment as herein provided and for all other purposes,
whether or not this Note be overdue, and neither the Company nor any such agent
shall be affected by notice to the contrary. This Note has been executed and
delivered pursuant to the Convertible Note Purchase Agreement, dated as of
XXXXXX, between the Company and the Purchasers named therein (the "Purchase
Agreement"), and is subject to the terms and conditions of the Purchase
Agreement, which are, by this reference, incorporated herein and made a part
hereof. Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to them in the Purchase Agreement.
3. The Holder of this Note is entitled, at its option, to convert, at any
time commencing on the date hereof, the principal amount of this Note or any
portion thereof into shares of Common Stock of the Company (the "Conversion
Shares") at a conversion price for each share of Common Stock (the "Conversion
Price") equal to $0.20 per share (subject to adjustment, as equitable, for stock
splits, stock dividends, reverse stock splits, recapitalizations and similar
transactions). If the Holder shall elect to convert all or a portion of the
principal amount of this Note, the Company shall, concurrently with such
conversion, pay all accrued and unpaid interest in respect of the principal
amount of this Note being converted. Payment of accrued and unpaid interest
shall be made, at the Company's option, (a) in cash in accordance with the terms
of this Note or (b) by converting such accrued and unpaid interest into
Conversion Shares at the Conversion Price.
4. The rate of interest on this Note shall be eight percent (8%), per
annum, on the outstanding principal until paid or converted. Subject to Section
3, the Company shall pay accrued and unpaid interest in cash.
5. The Company may prepay principal and interest under this Note in whole
or in part at any time. The Company shall pay a prepayment fee of eight percent
(8%) of the principal amount being prepaid for any prepayments made during the
first year following the issuance of this Note, and the Company shall pay a
prepayment fee of four percent (4%) of the principal amount being prepaid for
any prepayments made during the second year following the issuance of this Note.
The Company shall give the Holder at least five (5) days' notice prior to the
date of prepayment of any portion of this Note (the "Prepayment Date") and shall
include in such notice the portion of the outstanding principal amount of this
Note that it intends to prepay pursuant to this Section 5. The Holder shall have
the right to convert the then outstanding principal amount of this Note (or any
portion hereof) into Conversion Shares in accordance with Section 3 of this Note
until the close of business on the business day immediately prior to any
Prepayment Date.
6. On the Maturity Date, the Company will pay the principal of and any
accrued but unpaid interest due upon this Note, less any amounts required by law
to be deducted, to the registered holder of this Note, and such payment shall be
sent to such holder at the last address appearing on the Note Register.
7. Conversion shall be effectuated by surrendering this Note to the Company
together with the form of conversion notice attached hereto as Exhibit A (the
"Notice of Conversion"), executed by the Holder, evidencing such Holder's
intention to convert this Note or a specified portion (as above provided)
hereof, and accompanied, if required by the Company, by proper assignment hereof
in blank. If this Note shall have been converted in part, the Company shall
deliver to the Holder a new Note evidencing the rights of the Holder to convert
the unconverted portion of this Note, which new Note shall in all other respects
be identical to this Note. Interest accrued or accruing from the date of
issuance to the date of conversion shall be paid as set forth above. No fraction
of a share or scrip representing a fraction of a share will be issued on
conversion, but the number of shares issuable shall be rounded to the nearest
whole share. The date on which Notice of Conversion is given (the "Conversion
Date") shall be deemed to be the date on which the Holder faxes the duly
executed Notice of Conversion to the Company. Facsimile delivery of the Notice
of Conversion shall be accepted by the Company at facsimile number (803)
758-2560, Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President and Chief Executive Officer of the
Company. Certificates representing Common Stock issuable upon conversion will be
delivered to the Holder within five business days from the date the Notice of
Conversion is delivered to the Company. Delivery of shares upon conversion shall
be made to the address specified by the Holder in the Notice of Conversion.
8. No recourse shall be had for the payment of the principal of, or the
interest on, this Note, or for any claim based hereon, or otherwise in respect
hereof, against any shareholder, employee, officer or director, as such, past,
present or future, of the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
9. In case of any (1) merger or consolidation of the Company into another
company, or (2) sale by the Company of all or substantially all the assets of
the Company in one or a series of related transactions, the Holder shall have
the right to (A) deem such an occurrence an Event of Default and exercise its
rights of prepayment pursuant to Section 12 herein, (B) convert its aggregate
principal amount of this Note then outstanding into the shares of stock and
other securities, cash and property receivable upon or deemed to be held by
holders of Common Stock following such merger, consolidation or sale, and the
Holder shall be entitled upon such event or series of related events to receive
such amount of securities, cash and property as the shares of Common Stock into
which such aggregate principal amount of this Note could have been converted
immediately prior to such merger, consolidation or sale would have been
entitled, or (C) in the case of a merger or consolidation, (x) require the
surviving entity to issue convertible Notes in such face amount, as the case may
be, equal to the aggregate principal amount of this Note then held by the
Holder, plus all accrued and unpaid interest and other amounts owing thereon,
which newly issued Notes shall have terms identical (including with respect to
conversion) to the terms of this Note and shall be entitled to all of the rights
and privileges of the Holder of this Note set forth, and (y) simultaneously with
the issuance of such convertible Notes, shall have the right to convert such
instrument only into shares of stock and other securities, cash and property
receivable upon or deemed to be held by holders of Common Stock following such
merger or consolidation. In the case of clause (C), the conversion price
applicable for the newly issued convertible Notes shall be based upon the amount
of securities, cash and property that each share of Common Stock would receive
in such transaction and the Conversion Price in effect immediately prior to the
effectiveness or closing date for such transaction. The terms of any such
merger, sale or consolidation shall include such terms so as to continue to give
the Holder the right to receive the securities, cash and property set forth in
this Section upon any conversion or redemption following such event. This
Section shall similarly apply to successive such events.
10. The Holder of this Note, by acceptance hereof, agrees that this Note is
being acquired for investment and that such Holder will not offer, sell or
otherwise dispose of this Note or the Conversion Shares issuable upon conversion
thereof except under circumstances which will not result in a violation of the
Act or any applicable state or foreign securities laws or similar laws relating
to the sale of securities.
11. This Note shall be governed by and construed in accordance with the
laws of the State of South Carolina. Each of the parties consents to the
jurisdiction of the federal courts whose districts encompass any part of the
City of Columbia or the state courts of the State of South Carolina sitting in
the City of Columbia in connection with any dispute arising under this Note and
hereby waives, to the maximum extent permitted by law, any objection, including
any objection based on forum non conveniens, to the bringing of any such
proceeding in such jurisdictions.
12. The following shall constitute an "Event of Default":
a. The Company shall default in the payment of principal or interest
on this Note and same shall continue for a period of ten (10)
business days; or
b. There shall occur an Event of Default under any Note issued under
the Purchase Agreement that is not waived by the holder thereof;
or
c. Any of the material representations or warranties made by the
Company in the Purchase Agreement shall be false or misleading in
any material respect at the time made; or
d. The Company shall fail to perform or observe, in any material
respect, any other material covenant, term, provision, condition,
agreement or obligation of the Company under the Purchase
Agreement, the Security Agreement executed in connection
therewith or this Note and such failure shall continue uncured
for a period of thirty (30) days after written notice from the
Holder of such failure; or
e. The Company shall (1) admit in writing its inability to pay its
debts generally as they mature; (2) make an assignment for the
benefit of creditors or commence proceedings for its dissolution;
or (3) apply for or consent to the appointment of a trustee,
liquidator or receiver for its or for a substantial part of its
property or business; or
f. A trustee, liquidator or receiver shall be appointed for the
Company or for a substantial part of its property or business
without its consent and shall not be discharged within one
hundred and twenty days (120) after such appointment; or
g. Any governmental agency or any court of competent jurisdiction,
at the instance of any governmental agency, shall assume custody
or control of the whole or any substantial portion of the
properties or assets of the Company and such action shall not be
dismissed within one hundred and twenty days (120) days
thereafter; or
h. Any money judgment, writ or warrant of attachment, or similar
process in excess of Five Hundred Thousand Dollars ($500,000) in
the aggregate shall be entered against the Company or any of its
properties or other assets and shall remain unpaid, unvacated,
unbonded or unstayed for a period of one hundred and twenty days
(120) days; or
i. Bankruptcy, reorganization, insolvency or liquidation proceedings
or other proceedings for relief under any bankruptcy law or any
law for the relief of debtors shall be instituted by or against
the Company and, if instituted against the Company, shall not be
dismissed within one hundred and twenty days (120) days after
such institution or the Company shall by any action or answer
approve of, consent to, or acquiesce in any such proceedings or
admit the material allegations of, or default in answering a
petition filed in, any such proceeding; or
j. There shall be a Change in Control of the Company. For such
purposes, a Change in Control shall be deemed to occur as of: (i)
the date on which any "person" or "group" (as such terms are used
in Sections 13(d) and 14(d) of the Securities Act of 1934, as
amended (the "1934 Act") becomes the beneficial owner (as defined
in Rules 13d-3 and 13d-5 under the ▇▇▇▇ ▇▇▇) of shares
representing more than 25% of the combined voting power of the
then-outstanding securities entitled to vote generally in
elections of directors of the Company ("Voting Stock"); (ii) the
date on which the stockholders of the Company approve a
definitive agreement under which the Company will consolidate
with or merge into any other corporation, or convey, transfer or
lease all or substantially all of its assets to any person, or
any other corporation will merge into the Company, and, in the
case of any such transaction, the outstanding Common Stock of the
Company will be converted into cash, securities or other
property, unless the stockholders of the Company immediately
before such transaction own, directly or indirectly immediately
following such transaction, at least 51% of the combined voting
power of the outstanding securities of the corporation resulting
from such transaction in substantially the same proportion as
their ownership of the Voting Stock immediately before such
transaction; or (iii) the date on which there shall have been a
change in a majority of the Board of Directors of the Company
within a 12-month period unless the nomination for election of
each new director was approved by the vote of a majority of the
directors then still in office who were in office at the
beginning of the 12-month period.
Then, or at any time thereafter, and in each and every such case, unless such
Event of Default shall have been waived in writing by the Holder (which waiver
shall not be deemed to be a waiver of any subsequent default) at the option of
the Holder and in the Holder's sole discretion, the Holder may consider this
Note immediately due and payable, without presentment, demand, protest or notice
of any kind, all of which are hereby expressly waived, anything herein or in any
note or other instruments contained to the contrary notwithstanding, and the
Holder may immediately enforce any and all of the Holder's rights and remedies
provided herein or any other rights or remedies afforded by law.
13. Nothing contained in this Note shall be construed as conferring upon the
Holder the right to vote or to receive dividends or to consent or receive notice
as a stockholder in respect of any meeting of stockholders or any rights
whatsoever as a stockholder of the Company, unless and to the extent converted
in accordance with the terms hereof.
[THE NEXT PAGE IS THE SIGNATURE PAGE.]
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by an officer thereunto duly authorized.
Dated: XXXXXX
AFFINITY TECHNOLOGY GROUP, INC.
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
Attest:
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EXHIBIT A
NOTICE OF CONVERSION
(To be Executed by the Registered Holder in order to Convert the Note)
The undersigned hereby irrevocably elects to convert $ ______________ of
the principal amount of the above Note No. _____ into shares of Common Stock of
Affinity Technology Group, Inc. according to the terms hereof, as of the date
written below.
Date of Conversion
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Signature
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[Name]
Address:
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EXHIBIT B
SECURITY AGREEMENT
THIS SECURITY AGREEMENT, dated as of the 3rd day of June, 2002 (the "Security
Agreement"), is made by and among Affinity Technology Group, Inc., a Delaware
corporation (the "Company"), whose address is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and each of the investors identified on Schedule
1 attached hereto (collectively, the "Purchasers").
WHEREAS, the Company and the Purchasers have entered into a Convertible Note
Purchase Agreement, dated as of June 3, 2002 (the "Note Purchase Agreement"),
pursuant to which the Company has issued and sold to the Purchasers its 8%
convertible secured notes (the "Notes"); and
WHEREAS, to induce the Purchasers to enter into the Note Purchase Agreement and
acquire the Notes, the Company has agreed to enter into this Security Agreement
and to grant to the Purchasers a security interest in the Collateral (as defined
below);
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company and the Purchasers hereby agree
for themselves, their successors and assigns, as follows:
Article I
DEFINITIONS
1.1 For purposes of this Security Agreement, in addition to the terms
defined elsewhere herein, the following terms shall have the meanings set forth
below:
"Collateral" shall mean, collectively, the Company's interest in all
issued and outstanding shares (the "Shares") of common stock, par value $.001
per share, of ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation and wholly-owned
subsidiary of the Company (the "Subsidiary"), together with all (a)
certificates, instruments and entries upon the books of the Subsidiary
evidencing the foregoing, (b) rights to receive interest, dividends,
distributions, returns of capital and other amounts in respect thereof, (c)
additional stock, warrants, options, securities, interests and other property
from time to time paid or payable or distributed and/or distributable in respect
thereof, and (d) all proceeds of any of the foregoing. For purposes of this
Security Agreement, the term "proceeds" shall mean and include all cash,
securities and other property for any nature received or receivable upon the
sale, exchange or other disposition of a realization upon any Collateral,
together with distributions in respect of any Collateral, including pursuant to
any liquidation, reorganization or similar proceeding with respect to the
Company or the Subsidiary.
"Collateral Agent" shall mean XXX XXXX, a resident of XXX, XXXXX, and a
Purchaser under the Note Purchase Agreement.
"Event of Default" shall have the meaning given to such term in the
Notes.
"Obligations" shall mean the Company's indebtedness and other
obligations under the Notes issued from time to time pursuant to the Note
Purchase Agreement.
1.2 All terms in this Security Agreement that are not capitalized shall
have the meanings provided by the Uniform Commercial Code of South Carolina to
the extent the same are used or defined therein.
Article II
CREATION OF SECURITY INTEREST
2.1 To secure the prompt payment and other performance of the
Obligations under the Notes as issued from time to time under the Note Purchase
Agreement, the Company hereby grants, pledges, assigns and delivers to the
Collateral Agent, for the ratable benefit of the Purchasers, a security interest
in the Collateral.
2.2 The Company shall execute and deliver to the Collateral Agent,
concurrent with the execution of this Security Agreement, (a) all certificates
evidencing the Collateral, together with the endorsement of the Company and
undated stock powers or other necessary instruments of transfer or assignment,
duly executed in blank, (b) all related UCC financing statements, and (c) all
other documents or instruments as may, from time to time, be reasonably
necessary to fully carry out the intent of this Security Agreement in order to
perfect and maintain the security interest and lien created hereunder, as a
legal, valid, and binding security interest and lien upon the Collateral.
2.3 The Company does hereby irrevocably make, constitute and appoint
the Collateral Agent as the true and lawful attorney of the Company with power
to, upon the occurrence and during the continuance of an Event of Default, take
or bring at the Company's cost, in the Company's name or in the name of the
Purchasers, all steps, actions and suits deemed by the Collateral Agent and the
Purchasers to be necessary or desirable to effect foreclosure on, and
collections of, the Collateral. This power, being coupled with an interest, is
irrevocable so long as any of the Obligations remain unpaid.
2.4 Neither the Purchasers or the Collateral Agent nor their respective
attorneys will be liable for any act or omission nor for any error of judgment
or mistake of fact unless such act, omission, error or mistake shall occur as a
result of the willful misconduct of such persons.
Article III
APPOINTMENT OF COLLATERAL AGENT
3.1 Without in any way limiting the rights of the Purchasers hereunder
or otherwise, the Purchasers hereby appoint the Collateral Agent to hold the
Collateral and any and all certificates evidencing the Collateral for the
ratable benefit of all Purchasers hereunder. The Collateral Agent hereby accepts
such appointment and agrees to hold the Collateral and such certificates for the
ratable benefit of all Purchasers.
Article IV
PRIORITY OF SECURITY INTERESTS
4.1 The Company warrants and represents that as to those assets for
which perfection may be accomplished by filing under the UCC, the security
interests granted to the Collateral Agent for the ratable benefit of the
Purchasers hereunder, when properly perfected by filing, shall constitute at all
times a valid and perfected security interest in and upon the Collateral vested
in the Collateral Agent for the ratable benefit of the Purchasers. The Company
further warrants and represents that the security interests in the Collateral
granted hereunder are not and hereinafter shall not become subordinate or junior
to any other security interests, liens or claims in the Collateral.
Article V
COVENANTS OF THE COMPANY
5.1 So long as no Event of Default shall have occurred and be
continuing, the Company may, in any lawful manner not inconsistent with the
provisions of this Security Agreement and the Note Purchase Agreement, use,
control and manage the Collateral in the operation of its business, and receive
and use the income, revenue and profits arising therefrom and the proceeds
thereof, in the same manner and with the same effect as if this Security
Agreement had not been made; provided, however, that without the written consent
of the Purchasers holding at least a majority of the aggregate principal balance
of all Notes then outstanding, the Company will not sell, assign or otherwise
dispose of, grant any option with respect to, or mortgage, pledge, grant any
lien with respect to or otherwise encumber any of the Collateral or any interest
therein, except for the security interest created in favor of the Collateral
Agent hereunder and except as may be otherwise expressly permitted in accordance
with the terms of this Security Agreement and the Note Purchase Agreement.
5.2 So long as no Event of Default shall have occurred and be
continuing, the Company shall be entitled to exercise all voting rights
pertaining to the Shares, and for that purpose the Collateral Agent will execute
and deliver or cause to be executed and delivered to the Company all such
proxies and other instruments as the Company may reasonably request in writing
to enable the Company to exercise such voting rights; provided, however, that
the Company will not cast any vote, give any consent, waiver or ratification, or
take or fail to take any action in any manner that would, or could reasonably be
expected to, violate or be inconsistent with any of the terms of this Security
Agreement or the Note Purchase Agreement, or have the effect of impairing the
position or interests of the Collateral Agent or any Purchaser.
5.3 So long as no Event of Default shall have occurred and be
continuing (or would occur as a result thereof), and except as provided
otherwise herein, all interest, income, dividends, distributions and other
amounts payable in cash in respect of the Shares may be paid to and retained by
the Company; provided, however, that all such interest, income, dividends,
distributions and other amounts shall, at all times after the occurrence and
during the continuance of an Event of Default, be paid to the Collateral Agent
for the ratable benefit of all the Purchasers and retained by it as part of the
Collateral. The Collateral Agent shall also be entitled at all times (whether or
not during the continuance of an Event of Default) to receive directly, and to
retain as part of the Collateral, (a) all interest, income, dividends,
distributions or other amounts paid or payable in cash or other property in
respect of the Shares in connection with the dissolution, liquidation,
recapitalization or reclassification of the capital of the Subsidiary to the
extent representing an extraordinary, liquidating or other distribution in
return of capital, (b) all additional equity interests or other securities or
property (other than cash) paid or payable or distributed or distributable in
respect of the Shares in connection with any noncash dividend, distribution,
return of capital, spin-off, stock split, split-up, reclassification,
combination of shares or similar rearrangement, and (c) without affecting any
restrictions against such actions contained in this Security Agreement, all
additional capital stock, equity interests or other securities or property
(including cash) paid or payable or distributed or distributable in respect of
the Shares in connection with any consolidation, merger, exchange of securities,
liquidation or other reorganization. All interest, income, dividends,
distributions or other amounts that are received by the Company in violation of
the provisions of this Section shall be received in trust for the benefit of the
Collateral Agent, shall be segregated from other property or funds of the
Company and shall be forthwith delivered to the Collateral Agent as Collateral
in the same form as so received (with any necessary endorsements).
5.4 If the Company shall, at any time and from time to time after the
date hereof, acquire any additional capital stock or other equity interests in
the Subsidiary, the same shall be automatically deemed to be Collateral, and to
be pledged to the Collateral Agent pursuant to Section 2.1, and the Company will
forthwith pledge and deposit the same with the Collateral Agent for the ratable
benefit of the Purchasers and deliver to the Collateral Agent any certificates
or instruments therefor, together with the endorsement of the Company and
undated stock powers or other necessary instruments of transfer or assignment,
duly executed in blank, to the Collateral Agent for the ratable benefit of the
Purchasers, together with such other certificates and instruments as the
Collateral Agent may reasonably request (including UCC financing statements or
appropriate amendments thereto).
5.5 Unless the Company shall have obtained the written consent of the
Purchasers holding at least a majority of the aggregate principal balance of all
Notes then outstanding:
(a) The Company will cause the Shares pledged by it hereunder to
constitute at all times 100% of the outstanding capital and equity interests in
the Subsidiary, such that the Subsidiary shall be a wholly-owned subsidiary of
the Company; and
(b) The Company will not cause or permit the Subsidiary to issue or
sell any new capital stock in the Subsidiary, any warrants, options or rights to
acquire any such capital stock, or other equity interests in the Subsidiary of
any nature to any person, firm or entity other than the Company, or cause,
permit or consent to the admission of any other person, firm or entity as a
stockholder, partner or member of the Subsidiary.
Article VI
DEFAULT
6.1 Subject to the immediately succeeding sentence, if an Event of
Default shall have occurred and be continuing, the Purchasers shall have, in
addition to any other rights and remedies contained in this Security Agreement,
all the rights and remedies of a secured party under the Uniform Commercial
Code, and all other rights and remedies provided by law, all of which shall be
cumulative to the extent permitted by law. Upon the occurrence of an Event of
Default and at any time thereafter if such or any other Event of Default shall
then be continuing, the Purchasers, acting by the written consent of the
Purchasers holding at least two-thirds of the aggregate principal balance of all
Notes then outstanding, shall have the right without further notice to the
Company to settle, compromise or release, in whole or in part, any amounts owing
on the Collateral, to prosecute any action, suit or proceeding with respect to
the Collateral, to sell, assign and deliver the Collateral (or any part
thereof), at public or private sale, at broker's board, for cash, upon credit or
otherwise, at the Purchasers' sole option and discretion and the Purchasers may
bid or become purchasers at any such sale, if public, free from any right of
redemption, which is hereby expressly waived. The net cash proceeds resulting
from the exercise of any of the foregoing rights or remedies shall be applied by
the Purchasers to the payment of the Obligations in such order as the Purchasers
may elect, and the Company shall remain liable to the Purchasers for any
deficiency, together with interest thereon at the rate provided in the Notes,
and the cost and expenses of collection of such deficiency, including (to the
extent permitted by law), without limitation, attorneys' fees, expenses and
disbursements.
6.2 If at any time or times hereafter the Purchasers or the Collateral
Agent employ counsel for advice with respect to this Security Agreement, or to
intervene, file a petition, answer, motion or other pleading in any suit or
proceeding relating to this Security Agreement or relating to any Collateral, or
to protect, take possession of, or liquidate any Collateral, or to attempt to
enforce any security interest or lien in any Collateral, or to represent the
Purchasers in any pending or threatened litigation with respect to the affairs
of the Company in any way relating to any of the Collateral or to the
Obligations or to enforce any rights of the Purchasers or liabilities of the
Company, account debtors, or any other person, firm or corporation which may be
obligated to the Purchasers by virtue of this Security Agreement or any
instrument or document now or hereafter delivered to the Purchasers by or for
the benefit of the Company, then in any of such events, all of the attorneys'
fees arising from such services, and any expenses, costs and charges relating
thereto, shall become a part of the Obligations secured by the Collateral
payable on demand.
Article VII
MISCELLANEOUS
7.1 The laws of the State of South Carolina shall govern this Security
Agreement.
7.2 All notices and other communications hereunder shall be in writing
and shall be deemed to have been validly served, given or delivered (a) upon
receipt, if delivered personally or by fax, or (b) three (3) days after deposit
in the United States mails with postage prepaid, and addressed to the party to
be notified as provided above, if sent by mail.
7.3 Except as otherwise expressly provided herein, any term of this
Security Agreement may be amended and the observance of any term of this
Security Agreement may be waived (either generally or in a particular instance,
either retroactively or prospectively and either for a specified period of time
or indefinitely) with the written consent of the Company and the Purchasers
holding at least a majority of the principal amount of all Notes then
outstanding.
7.4 The terms and conditions of this Security Agreement shall inure to
the benefit of and be binding upon the successors and assigns of the parties.
Nothing in this Security Agreement, express or implied, is intended to confer
upon any third party any rights, obligations or liabilities under or by reason
of this Security Agreement, except as expressly provided in this Security
Agreement.
[THE NEXT PAGE IS THE SIGNATURE PAGE.]
IN WITNESS WHEREOF, this Security Agreement has been executed as of the
day and year first above written.
THE COMPANY: AFFINITY TECHNOLOGY GROUP, INC.,
a Delaware corporation
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
[SIGNATURE PAGES FOR THE PURCHASERS FOLLOW THIS PAGE.]
PURCHASER SIGNATURE PAGE
Principal Amount of
Note Purchased: $xxx,xxx
By:
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Name:
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Title:
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Schedule 1
Name and Address Principal Amount
of Purchaser of Note Acquired Purchase Price Maturity Date
