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EXHIBIT 10.90
EXECUTION COPY
AMENDED AND RESTATED
JUNIOR SUBORDINATION AGREEMENT
AMENDED AND RESTATED JUNIOR SUBORDINATION AGREEMENT (this
"Agreement"), dated as of April 7, 1999, among (a) The 1818 Mezzanine Fund,
L.P., a Delaware limited partnership, PC Investment Company, a Delaware
corporation, Manufacturers Life Insurance Company (U.S.A.), a Michigan
corporation (collectively, the "Senior Subordinated Creditors"), The Structured
Finance High Yield Fund, LLC, a Delaware limited liability company ("SFHY," and
together with the Senior Subordinated Creditors, the "Senior Creditors"), (b)
each of the Persons listed on Schedule 1 hereto and having an address set forth
opposite such Person's name on Schedule 1 (each such Person, a "Subordinating
Creditor" and together the "Subordinating Creditors") and (c) NATIONAL AUTO
FINANCE COMPANY, INC., a Delaware corporation, having its principal office at
00000 Xxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, XX 00000 (the
"Borrower").
WHEREAS, BankBoston, N.A. (the "Agent"), the Borrower, the
Senior Creditors and the Subordinating Creditors have previously entered into
that certain Junior Subordination Agreement, dated as of March 27, 1998 (the
"Prior Subordination Agreement"), and such parties (other than the agent) desire
to amend, restate and supersede in their entirety the terms and provisions of
the Prior Subordination Agreement as set forth herein; and
WHEREAS, pursuant to that certain Securities Purchase
Agreement, dated as of December 22, 1997 (as amended and in effect from time to
time, including any replacement agreement therefor, the "Securities Purchase
Agreement"), between the Borrower, Progressive Investment Company, Inc. and the
Senior Subordinated Creditors, the Senior Subordinated Creditors have extended
credit to the Borrower; and
WHEREAS, pursuant to a Note Purchase Agreement, dated as of
March 27, 1998 (as amended and in effect from time to time, including any
replacement agreement therefor, the "Note Purchase Agreement"), between the
Borrower and SFHY, SFHY has extended credit to the Borrower; and
WHEREAS, each Subordinating Creditor has previously extended
credit to the Borrower evidenced by certain promissory notes (the "Old Junior
Subordinated Notes") described on Exhibit A to the Prior Subordination
Agreement; and
WHEREAS, the commitment of the Banks (as defined in the Prior
Subordination Agreement) has been terminated and all amounts payable by the
Borrower to the Agent and the Banks have been indefeasibly paid in full; and
WHEREAS, the Borrower, National Auto Finance Company, L.P.,
the Senior Creditors, the Subordinating Creditors and certain other parties have
entered into that certain Restructuring Agreement, dated as of April 7, 1999
(the "Restructuring Agreement"), pursuant to which the parties thereto have
agreed, among other things, to waive and amend certain provisions of the Note
Purchase Agreement and the Securities Purchase Agreement; and
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WHEREAS, it is a condition precedent to the Restructuring
Agreement that the Subordinating Creditors agree to certain amendments to the
terms and provisions of the Old Junior Subordinated Notes; and
WHEREAS, the Borrower and the Subordinating Creditors have
entered into that certain Note Exchange Agreement, dated as of April 7, 1999
(the "Exchange Agreement") in order to effect the changes in the Old Junior
Subordinated Notes as contemplated and required by the Restructuring Agreement;
and
WHEREAS, the Exchange Agreement calls for the issuance and
delivery of new promissory notes (as amended with the consent of the Senior
Creditors as provided herein and in effect from time to time, the "Junior
Subordinated Notes") by the Borrower to each Subordinating Creditor in exchange
for the Old Junior Subordinated Notes; and
WHEREAS, Section 10 of the Prior Subordination Agreement
requires that a majority of the Senior Creditors consent to the transactions
contemplated by the Exchange Agreement, including (without limitation) the
exchange of the Junior Subordinated Notes for the Old Junior Subordinated Notes;
and
WHEREAS, it is a condition precedent to the Senior Creditors'
willingness to continue their credit relationships with the Borrower pursuant to
the Note Purchase Agreement and the Securities Purchase Agreement, respectively
(each as amended by the Restructuring Agreement) that the Borrower and the
Subordinating Creditor enter into this Agreement with the Senior Creditors; and
WHEREAS, in order to induce the Senior Creditors to continue
their credit relationships with the Borrower pursuant to the Note Purchase
Agreement and the Securities Purchase Agreement, respectively, the Borrower and
the Subordinating Creditors have agreed to enter into this Agreement with the
Senior Creditors;
NOW, THEREFORE, in consideration of the foregoing, the mutual
agreements herein contained and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Definitions. Terms not otherwise defined herein have the
same respective meanings given to them in the Restructuring Agreement. In
addition, the following terms shall have the following meanings:
"Indebtedness" shall mean as to any Person, (a) all
obligations of such Person for borrowed money (including, without limitation,
reimbursement and all other obligations with respect to surety bonds, letters of
credit and bankers' acceptances, whether or not matured), (b) all obligations
evidenced by notes, bonds, debentures or similar instruments, (c) all
obligations to pay the deferred purchase price of property or services, except
trade accounts payable and accrued liabilities arising in the ordinary course of
business, (d) all interest rate and currency swaps and similar agreements under
which payments are obliged to be made, whether periodically or upon the
happening of a contingency, (e) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such
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Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (f) all obligations under capital lease obligations, (g) all
indebtedness secured by any lien on any property or asset owned or held by that
Person regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is non-recourse to the credit of that Person, and (h)
any contingent obligation.
"Person" shall mean any individual, firm, corporation,
division, partnership, trust, incorporated or unincorporated association, joint
venture, joint stock company, governmental authority or other entity of any
kind, and shall include any successor (by merger or otherwise) of any such
entity.
"Senior Debt". All principal, interest, fees, costs,
enforcement expenses (including legal fees and disbursements), collateral
protection expenses and other reimbursement or indemnity obligations on any
Indebtedness of the Borrower whether outstanding as of the date hereof or
thereafter created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Subordinated Debt. Senior Debt shall
also include any monetary obligation of the Borrower created or evidenced by the
Note Purchase Agreement, the Securities Purchase Agreement, the Restructuring
Agreement or any of the Amended Notes or Convertible Notes (each as defined in
the Restructuring Agreement) or any prior, concurrent, or subsequent notes,
instruments or agreements of indebtedness, liabilities or obligations of any
type or form whatsoever relating thereto in favor of any Senior Creditor. Senior
Debt shall expressly include any and all interest accruing or out of pocket
costs or expenses incurred after the date of any filing by or against the
Borrower of any petition under the federal Bankruptcy Code or any other
bankruptcy, insolvency or reorganization act regardless of whether any Senior
Creditor's claim therefor is allowed or allowable in the case or proceeding
relating thereto.
"Subordinated Debt". All principal, interest, fees, costs,
enforcement expenses (including legal fees and disbursements), collateral
protection expenses and other reimbursement and indemnity obligations created or
evidenced by the Junior Subordinated Notes, any Junior Convertible Interest
Notes (as defined in the Junior Subordinated Note) or any prior, concurrent or
subsequent notes, instruments or agreements of indebtedness, liabilities or
obligations of any type or form whatsoever relating thereto in favor of any
Subordinating Creditor.
"Subordinated Documents". Collectively, the Exchange
Agreement, the Junior Subordinated Notes, any Junior Convertible Interest Note,
and any and all guaranties and security interests, mortgages and other liens
directly or indirectly guarantying or securing any of the Subordinated Debt, and
any and all other documents or instruments evidencing or further guarantying or
securing directly or indirectly any of the Subordinated Debt, whether now
existing or hereafter created.
2. General. Notwithstanding anything to the contrary in the
Note Purchase Agreement, the Securities Purchase Agreement or the Restructuring
Agreement, the Subordinated Debt and any and all Subordinated Documents shall be
and hereby are subordinated and the payment thereof is deferred until the full
and final payment in cash or cash
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equivalents of the Senior Debt, whether now or hereafter incurred or owed by the
Borrower. Notwithstanding the immediately preceding sentence, the Borrower shall
be permitted to pay, in cash or by delivery of Junior Convertible Interest
Notes, and the Subordinating Creditors shall be permitted to receive, any
regularly scheduled payment of interest on the Subordinated Debt so long as at
the time of such payment, or after giving effect thereto, no Default or Event of
Default has occurred and is continuing under the Note Purchase Agreement, the
Securities Purchase Agreement or the Restructuring Agreement or would occur
after giving effect thereto; and provided, further, that the Borrower shall be
permitted to pay, and the Subordinating Creditors shall be permitted to receive,
payment of the principal amount on the Subordinated Debt upon the scheduled
maturity thereof on January 31, 2002 so long as at the time of such payment, or
after giving effect thereto, no Default or Event of Default has occurred and is
continuing under the Note Purchase Agreement, the Securities Purchase Agreement
or the Restructuring Agreement or would occur after giving effect thereto.
Notwithstanding any provision contained herein to the contrary, so long as no
Default or Event of Default has occurred and is continuing under the Note
Purchase Agreement, the Securities Purchase Agreement or the Restructuring
Agreement or would occur after giving effect thereto, the Subordinating
Creditors shall be permitted (subject to the Note Purchase Agreement, the
Securities Purchase Agreement and the Restructuring Agreement) to convert the
Subordinated Debt to equity interests in the Borrower.
3. Consent to Exchange Agreement and Related Matters.
Notwithstanding any provision of the Prior Subordination Agreement or of this
Agreement to the contrary, each Senior Creditor signatory hereto hereby consents
to the Subordinating Creditors' entering into the Exchange Agreement and to the
consummation of the transactions contemplated by the Exchange Agreement,
including (without limitation), the exchange of the Junior Subordinated Notes
for the Old Junior Subordinated Notes.
4. Enforcement. The Subordinating Creditors will not take or
omit to take any action or assert any claim with respect to the Subordinated
Debt or otherwise which is inconsistent with the provisions of this Agreement.
Without limiting the foregoing, none of the Subordinating Creditors will assert,
collect or enforce the Subordinated Debt or any part thereof or take any action
to foreclose or realize upon the Subordinated Debt or any part thereof or
enforce any of the Subordinated Documents except to the extent (but only to such
extent) that the commencement of a legal action may be required to toll the
running of any applicable statute of limitations. Until the Senior Debt has been
finally paid in full in cash, the Subordinating Creditors shall not have any
right of subrogation, reimbursement, restitution, contribution or indemnity
whatsoever from any assets of the Borrower or any guarantor of or provider of
collateral security for the Senior Debt. Each Subordinating Creditor further
waives any and all rights with respect to marshalling.
5. Payments Held in Trust. Each Subordinating Creditor will
hold in trust and immediately pay over to the Senior Creditors, and/or any other
holders of Senior Debt, in the same form of payment received, with appropriate
endorsements, for application to the Senior Debt, any cash amount that the
Borrower pays to such Subordinating Creditor with respect to the Subordinated
Debt, or as collateral for the Senior Debt any other assets of the Borrower that
such Subordinating Creditor may receive with respect to the Subordinated Debt,
in each case except with respect to payments expressly permitted pursuant to
Section 2.
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6. Defense to Enforcement. If any Subordinating Creditor, in
contravention of the terms of this Agreement, shall commence, prosecute or
participate in any suit, action or proceeding against the Borrower, then the
Borrower may interpose as a defense or plea the making of this Agreement, and
any Senior Creditor and/or any other holder of Senior Debt, may intervene and
interpose such defense or plea in its name or in the name of the Borrower. If
any Subordinating Creditor, in contravention of the terms of this Agreement,
shall attempt to collect any of the Subordinated Debt or enforce any of the
Subordinated Documents, then any Senior Creditor, other holder of Senior Debt or
the Borrower may, by virtue of this Agreement, restrain the enforcement thereof
in the name of such Senior Creditor and/or other holder of Senior Debt or in the
name of the Borrower. If any Subordinating Creditor, in contravention of the
terms of this Agreement, obtains any cash or other assets of the Borrower as a
result of any administrative, legal or equitable actions, or otherwise, such
Subordinating Creditor agrees forthwith to pay, deliver and assign to the Senior
Creditors and/or any other holders of Senior Debt in each case with appropriate
endorsements, any such cash for application to the Senior Debt and any such
other assets as collateral for the Senior Debt.
7. Bankruptcy, etc.
7.1 Payments relating to Subordinated Debt. At any meeting
of creditors of the Borrower or in the event of any case or proceeding,
voluntary or involuntary, for the distribution, division or application of
all or part of the assets of the Borrower or the proceeds thereof, whether
such case or proceeding be for the liquidation, dissolution or winding up of
the Borrower or its business, a receivership, insolvency or bankruptcy case
or proceeding, an assignment for the benefit of creditors or a proceeding by
or against the Borrower for relief under the federal Bankruptcy Code or any
other bankruptcy, reorganization or insolvency law or any other law relating
to the relief of debtors, readjustment of indebtedness, reorganization,
arrangement, composition or extension or marshalling of assets or otherwise,
the Senior Creditors and/or any other holder of Senior Debt are hereby
irrevocably authorized at any such meeting or in any such proceeding to
receive or collect for the benefit of the Senior Creditors and/or any other
holder of Senior Debt, as the case may be, any cash or other assets of the
Borrower distributed, divided or applied by way of dividend or payment, or
any securities issued on account of any Subordinated Debt, and apply such
cash to or to hold such other assets or securities as collateral for the
Senior Debt, and to apply to the Senior Debt any cash proceeds of any
realization upon such other assets or securities that the Senior Creditors
and/or any other holders of Senior Debt in their discretion elect to effect,
until all of the Senior Debt shall have been paid in full in cash, rendering
to the Subordinating Creditor any surplus to which the Subordinating
Creditors are then entitled.
7.2 Securities by Plan of Reorganization or Readjustment.
Notwithstanding the foregoing provisions of Section 7.1, the Subordinating
Creditors shall be entitled to receive and retain any securities of the
Borrower or any other corporation or other entity provided for by a plan of
reorganization or readjustment (i) the payment of which securities is
subordinate, at least to the extent provided in this Agreement with respect
to Subordinated Debt, to the payment of all Senior Debt under any such plan
of reorganization or readjustment and (ii) all other terms of which are
acceptable to the Senior Creditors and/or any other holders of Senior Debt.
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7.3 Subordinated Debt Voting Rights. At any such meeting
of creditors or in the event of any such case or proceeding, the
Subordinating Creditors shall retain the right to vote and otherwise act with
respect to the Subordinated Debt (including, without limitation, the right to
vote to accept or reject any plan of partial or complete liquidation,
reorganization, arrangement, composition or extension), provided that the
Subordinating Creditors shall not vote with respect to any such plan or take
any other action in any way so as to contest (i) the validity of any Senior
Debt or any collateral therefor or guaranties thereof, (ii) the relative
rights and duties of any holders of any Senior Debt established in any
instruments or agreements creating or evidencing any of the Senior Debt with
respect to any of such collateral or guaranties or (iii) the Subordinating
Creditors' obligations and agreements set forth in this Agreement.
8. Lien Subordination. Each Subordinating Creditor
acknowledges and agrees that the Subordinated Debt is unsecured.
9. Further Agreements of The Subordinating Creditors.
9.1 Further Assurances. Each Subordinating Creditor hereby
agrees, upon request of the Senior Creditors and/or any other holders of
Senior Debt at any time and from time to time, to execute such other
documents or instruments as may be requested by the Senior Creditors and/or
any other holders of Senior Debt further to evidence of public record or
otherwise the senior priority of the Senior Debt as contemplated hereby.
9.2 Books and Records. Each Subordinating Creditor further
agrees to maintain on its books and records such notations as the Senior
Creditors may reasonably request to reflect the subordination contemplated
hereby and to perfect or preserve the rights of the Senior Creditors and/or
any other holders of Senior Debt hereunder. A copy of this Agreement may be
filed as a financing statement in any Uniform Commercial Code recording
office.
10. Freedom of Dealing. Each Subordinating Creditor agrees,
with respect to the Senior Debt and any and all collateral therefor or
guaranties thereof, that the Borrower, the Senior Creditors and/or any other
holders of Senior Debt may agree to increase the amount of the Senior Debt or
otherwise modify the terms of any of the Senior Debt, and the Senior Creditors
and/or the other holders of any Senior Debt may grant extensions of the time of
payment or performance to and make compromises, including releases of collateral
or guaranties, and settlements with the Borrower and all other persons, in each
case without the consent of the Subordinating Creditors or the Borrower and
without affecting the agreements of the Subordinating Creditors or the Borrower
contained in this Agreement; provided, however, that nothing contained in this
Section 10 shall constitute a waiver of the right of the Borrower itself to
agree or consent to a settlement or compromise of a claim which any Senior
Creditor and/or any other holder of Senior Debt may have against the Borrower.
11. Modification or Sale of the Subordinated Debt. None of
the Subordinating Creditors will, at any time while this Agreement is in effect,
modify any of the terms of any of the Subordinated Debt or any of the
Subordinated Documents; nor will any Subordinating Creditor sell, transfer,
pledge, assign, hypothecate or otherwise dispose of any or all of the
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Subordinated Debt to any person other than a person who agrees in a writing,
satisfactory in form and substance to a majority of the Senior Creditors and/or
any other holder of Senior Debt to become a party hereto and to succeed to the
rights and to be bound by all of the obligations of such Subordinating Creditor
hereunder. In the case of any such disposition by any Subordinating Creditor,
such Subordinating Creditor will notify the Senior Creditors and/or any other
holder of Senior Debt at least 10 days prior to the date of any of such intended
disposition.
12. Borrower's Obligations Absolute. Nothing contained in
this Agreement shall impair, as between the Borrower and the Subordinating
Creditors, the obligation of the Borrower to pay to the Subordinating Creditors
all amounts payable in respect of the Subordinated Debt as and when the same
shall become due and payable in accordance with the terms thereof, or prevent
the Subordinating Creditors (except as expressly otherwise provided in Section 4
or Section 7) from exercising all rights, powers and remedies otherwise
permitted by Subordinated Documents and by applicable law upon a default in the
payment of the Subordinated Debt or under any Subordinated Document, all,
however, subject to the rights of the Senior Creditors and/or any other holders
of Senior Debt as set forth in this Agreement. The Borrower hereby represents
that as of the date hereof the Subordinating Creditors are the only holders of
"Junior Subordinated Indebtedness" as such term is defined in the Note Purchase
Agreement and the Securities Purchase Agreement.
13. Termination of Subordination. This Agreement shall
continue in full force and effect, and the obligations and agreements of the
Subordinating Creditors and the Borrower hereunder shall continue to be fully
operative, until all of the Senior Debt shall have been paid and satisfied in
full in cash or cash equivalents and such full payment and satisfaction shall be
final and not avoidable. To the extent that the Borrower or any guarantor of or
provider of collateral for the Senior Debt makes any payment on the Senior Debt
that is subsequently invalidated, declared to be fraudulent or preferential or
set aside or is required to be repaid to a trustee, receiver or any other party
under any bankruptcy, insolvency or reorganization act, state or federal law,
common law or equitable cause (such payment being hereinafter referred to as a
"Voided Payment"), then to the extent of such Voided Payment, that portion of
the Senior Debt that had been previously satisfied by such Voided Payment shall
be revived and continue in full force and effect as if such Voided Payment had
never been made. In the event that a Voided Payment is recovered from any Senior
Creditor and/or any other holder of Senior Debt, an Event of Default shall be
deemed to have existed and to be continuing under the Note Purchase Agreement or
the Securities Purchase Agreement, as the case may be, from the date of such
Senior Creditor's and/or any other Senior Debt holder's initial receipt of such
Voided Payment until the full amount of such Voided Payment is restored to such
Senior Creditor and/or other holder of Senior Debt. During any continuance of
any such Event of Default, this Agreement shall be in full force and effect with
respect to the Subordinated Debt. To the extent that any Subordinating Creditor
has received any payments with respect to the Subordinated Debt subsequent to
the date of any Senior Creditors' and/or other Senior Debt holders' initial
receipt of such Voided Payment and such payments have not been invalidated,
declared to be fraudulent or preferential or set aside or are required to be
repaid to a trustee, receiver, or any other party under any bankruptcy act,
state or federal law, common law or equitable cause, such Subordinating Creditor
shall be obligated and hereby agrees that any such payment so made or received
shall be deemed to have been received in trust for the benefit of the Senior
Creditors and/or other holders of Senior Debt, and such Subordinating Creditor
hereby agrees to pay to the
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Senior Subordinated Creditors, upon demand, the full amount so received by such
Subordinating Creditor during such period of time to the extent necessary fully
to restore to the Senior Creditors and/or other holder of Senior Debt the amount
of such Voided Payment. Upon the payment and satisfaction in full in cash or
cash equivalent of all of the Senior Debt, which payment shall be final and not
avoidable, this Agreement will automatically terminate without any additional
action by any party hereto.
14. Notices. All notices and other communications which are
required and may be given pursuant to the terms of this Agreement shall be in
writing and shall be sufficient and effective in all respects if given in
writing or telecopied, delivered or mailed by registered or certified mail,
postage prepaid, as follows:
If to The 1818 Mezzanine Fund, L.P.:
c/o Brown Brothers Xxxxxxxx & Co.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
with a copy to: Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X.X. Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
If to PC Investment Company, Inc.:
0 Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx Xxx
Telecopier No.: (000) 000-0000
with a copy to: Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X.X. Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
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If to Manufacturers Life Insurance Company (U.S.A.):
c/o ManuLife Financial
00 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Xx.
Telecopier No.: (000) 000-0000
with a copy to: Manufacturers Life Insurance Company
Corporate Law Department
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0XxXX, Xxxxxx
Attention: Xxxxxxx Xxxxxx, Esq.
Telecopier No: (000) 000-00000
If to SFHY: The Structured Finance High Yield
Fund, LLC
c/o Prudential Investments-Structured
Finance Group
Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Telecopier No. (000) 000-0000
with a copy to: Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X.X. Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
If to any Subordinating Creditor, at the address set forth
opposite such Person's name on Schedule 1 hereto
If to the Borrower: 00000 Xxxxxxxx Xxxx Xxxxxxxxx,
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telecopier No.: (000) 000-0000
with copies to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
Telecopier No.: (000) 000-0000
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or such other address or addresses as any party hereto shall have designated by
written notice to the other parties hereto. Notices shall be deemed given and
effective upon the earlier to occur of (i) the third day following deposit
thereof in the U.S. mail or (ii) receipt by the party to whom such notice is
directed.
15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW.
16. Waiver of Jury Trial. EACH OF THE SUBORDINATING CREDITORS
AND THE BORROWER EACH HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO
ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS
AND OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, EACH OF THE SUBORDINATING
CREDITORS AND THE BORROWER HEREBY WAIVES ANY RIGHT WHICH IT MAY HAVE TO CLAIM OR
RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. EACH OF THE SUBORDINATING CREDITORS AND THE
BORROWER (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY SENIOR
CREDITOR AND/OR OTHER HOLDER OF SENIOR DEBT HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT ANY SENIOR CREDITOR AND/OR OTHER HOLDER OF SENIOR DEBT WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B)
ACKNOWLEDGES THAT EACH OF THE SENIOR CREDITORS AND/OR OTHER HOLDERS OF SENIOR
DEBT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
17. Miscellaneous. This Agreement may be executed in several
counterparts and by each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Agreement, it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against which enforcement is sought. A majority in interest of the Senior
Creditors and/or other holders of Senior Debt may, in their sole and absolute
discretion, waive any provisions of this Agreement benefiting such Persons;
provided, however, that such waiver shall be effective only if in writing and
signed by a majority in interest of the Senior Creditors, and shall be limited
to the specific provision or provisions expressly so waived. This Agreement
shall be binding upon the successors and assigns of the Subordinating Creditors
and the Borrower and shall inure to the benefit of the Senior Creditors and/or
other holders of Senior Debt and the Senior Creditors' and/or other holders' of
Senior Debt respective successors and assigns, any lender or lenders refunding
or refinancing any of the Senior Debt and their respective successors and
assigns, but shall not otherwise create any rights or benefits for any third
party. In the event that any lender or lenders refund or refinance any of the
Senior Debt, the terms "Event of Default," "Note Purchase Agreement,"
"Securities Purchase Agreement," "Restructuring Agreement," "Amended Notes,"
"Convertible Notes" and the like shall refer mutatis mutandis to the agreements
and instruments in favor of such lender or lenders and to the
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related definitions contained therein. This Agreement supercedes and replaces in
its entirety the Prior Subordination Agreement.
[SIGNATURES CONTAINED ON SUCCEEDING PAGES]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
SENIOR CREDITORS: THE 1818 MEZZANINE FUND, L.P.
By: Xxxxx Brothers Xxxxxxxx & Co.,
its General Partner
By: /s/ XXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Partner:
PC INVESTMENT COMPANY
By: /s/ XXXXXX XXX
----------------------------------------
Name: Xxxxxx Xxx
Title: Portfolio Manager
MANUFACTURERS LIFE INSURANCE
COMPANY (U.S.A.)
By: /s/ XXXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Managing Director
THE STRUCTURED FINANCE HIGH YIELD FUND, LLC
By: /s/ XXXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
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SUBORDINATING CREDITORS: NOVA FINANCIAL CORPORATION
By: /s/ EXECUTED BY AUTHORIZED OFFICER
---------------------------------------
Name: Executed by Authorized Officer
Title:
NOVA CORPORATION
By: /s/ EXECUTED BY AUTHORIZED OFFICER
---------------------------------------
Name: Executed by Authorized Officer
Title:
/s/ XXXXXXX X. XXXXX
---------------------------------------
Xxxxxxx X. Xxxxx
/s/ XXXXX X. XXXX
---------------------------------------
Xxxxx X. Xxxx
/s/ XXXX X. XXXXXXX
---------------------------------------
Xxxx X. Xxxxxxx
BORROWER: NATIONAL AUTO FINANCE COMPANY, INC.
By: /s/ XXXXX X. XXXXX
---------------------------------------
Xxxxx X. Xxxxx
Chief Executive Officer
13
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SCHEDULE 1
SUBORDINATING CREDITORS WITH ADDRESSES
Nova Financial Corporation
0000 Xxxxxxxx Xxxxxx, X
Xxxxxxx Xxxx, Xxxxxx 00000
Nova Corporation
0000 Xxxxxxxx Xxxxxx, X
Xxxxxxx Xxxx, Xxxxxx 00000
Xxxxxxx X. Xxxxx
Bullova Technologies
000 Xxxxx Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
Xxxxx X. Xxxx
Congress Point Financial Corp.
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Xxxx X. Xxxxxxx
National Financial Companies LLC
Xxx Xxxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
000 Xxxxx Xxxxxxx Xxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
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