Exhibit 5
EXECUTION COPY
INTERCREDITOR
AND COLLATERAL SUBORDINATION AGREEMENT
INTERCREDITOR AND COLLATERAL SUBORDINATION AGREEMENT, dated as
of August 13, 1999, by and among VALUE PARTNERS, LTD. (together with its
successors and assigns, each a "SUBORDINATED LENDER", and collectively the
"SUBORDINATED LENDERS"), ALTIVA FINANCIAL CORPORATION, a Delaware corporation,
formerly known as Mego Mortgage Corporation (together with its successors and
assigns, "ALTIVA"), GREENWICH CAPITAL MARKETS, INC., a Delaware corporation
(together with its successors and assigns, "GCM"), and GREENWICH CAPITAL
FINANCIAL PRODUCTS, INC., a Delaware corporation (together with its successors
and assigns, "GCFP"; collectively with GCM, "GREENWICH").
Altiva and Greenwich are parties to the Senior Agreements (as
defined herein) whereby Altiva pledged or sold certain assets to Greenwich to
secure the Senior Obligations (as defined herein). Altiva and the Subordinated
Lenders intend to enter into the Subordinated Loan Agreement (as defined herein)
whereby Altiva intends to pledge all or part of the assets securing the Senior
Obligations to the Subordinated Lenders to secure the Subordinated Obligations
(as defined herein). Greenwich is willing to permit the pledge of such assets to
the Subordinated Lenders, but only in accordance with the terms and conditions
contained herein.
The parties hereto hereby agree as follows:
1. DEFINITIONS.
(a) Unless otherwise defined herein, terms defined in the
Senior Agreements and used herein shall have the meanings given to them in the
Senior Agreements.
(b) The following terms shall have the following meanings:
"AGREEMENT": this Intercreditor and Collateral Subordination
Agreement, as the same may be amended, modified or otherwise supplemented from
time to time.
"ALTIVA": as defined in the Heading hereto.
"COLLATERAL": the collective reference to any and all property
subject to security interests to secure payment or performance of both the
Senior Obligations and the Subordinated Obligations as of the date of this
Agreement and listed on Schedule 1 attached hereto.
"GCM": as defined in the Heading hereto.
"GCFP": as defined in the Heading hereto.
"GREENWICH": as defined in the Heading hereto.
"INSOLVENCY EVENT": (1) Altiva commencing any case, proceeding
or other action (i) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization,
conservatorship or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent,
or seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or
(ii) seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or
Altiva making a general assignment for the benefit of its creditors; or (2)
there being commenced against Altiva any case, proceeding or other action of a
nature referred to in clause (1) above which (i) results in the entry of an
order for relief or any such adjudication or appointment or (ii) remains
undismissed, undischarged or unbonded for a period of 60 days; or (3) there
being commenced against Altiva any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or (4)
Altiva taking any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause (1), (2) or
(3) above; or (5) Altiva generally not paying, or being unable to pay, or
admitting in writing its inability to pay, its debts as they become due.
"SENIOR AGREEMENTS": the collective reference to (i) the
Master Repurchase Agreement, dated as of September 4, 1996, between Altiva and
GCM and (ii) the Pledge and Security Agreement, dated as of April 17, 1997,
between Altiva and GCFP, as such agreements may have been or may hereafter be
amended, modified or supplemented from time to time, including, without
limitation, amendments, modifications, supplements and restatements thereof
giving effect to increases, renewals, extensions, refundings, deferrals,
restructurings, replacements or refinancings of, or additions to, the
arrangements provided in such agreement (whether provided by Greenwich under
such agreement or by a successor to or assignee of Greenwich).
"SENIOR DOCUMENTS": the collective reference to the Senior
Agreements and all other documents that from time to time evidence the Senior
Obligations or secure or support payment or performance thereof.
"SENIOR OBLIGATIONS": the collective reference to the unpaid
principal, interest, repurchase price, pricing differential and all other
obligations and liabilities of Altiva to Greenwich (including, without
limitation, if applicable, interest accruing at the then applicable rate
provided in the relevant Senior Agreement after the maturity of such obligations
and interest accruing at the then applicable rate provided in the relevant
Senior Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
Altiva, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding), whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, any Senior Agreement and the other Senior
Documents or any other document made, delivered or given in connection
therewith, in each case whether on account of principal, interest, reimbursement
obligations, repurchase obligations, pricing differential, fees, indemnities,
costs,
-2-
expenses or otherwise (including, without limitation, all fees and disbursements
of counsel to Greenwich that are required to be paid by Altiva pursuant to the
terms of the Senior Agreements or this Agreement or any other Senior Document).
"SUBORDINATED LOAN AGREEMENT": the Secured Convertible Note
Purchase Agreement, dated as of August __, 1999, among Altiva and the
Subordinated Lenders parties thereto, as the same may be amended, modified or
otherwise supplemented from time to time.
"SUBORDINATED LENDERS": as defined in the Heading hereto.
"SUBORDINATED LOAN DOCUMENTS": the collective reference to the
Subordinated Loan Agreement, the Subordinated Notes and any other documents or
instruments that from time to time evidence the Subordinated Obligations or
secure or support payment or performance thereof.
"SUBORDINATED LOANS": the loans made by the Subordinated
Lenders to Altiva pursuant to the Subordinated Loan Agreement.
"SUBORDINATED NOTES": the promissory notes of Altiva
outstanding from time to time pursuant to the Subordinated Loan Agreement.
"SUBORDINATED OBLIGATIONS": the collective reference to the
unpaid principal of and interest on the Subordinated Notes and all other
obligations and liabilities of Altiva to the Subordinated Lenders (including,
without limitation, interest accruing at the then applicable rate provided in
the Subordinated Loan Agreement after the maturity of the Subordinated Loans and
interest accruing at the then applicable rate provided in the Subordinated Loan
Agreement after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to Altiva, whether
or not a claim for post-filing or post-petition interest is allowed in such
proceeding), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out
of, or in connection with, the Subordinated Loan Agreement, the Subordinated
Notes, this Agreement, or any other Subordinated Loan Document, in each case
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
fees and disbursements of counsel to the Subordinated Lenders that are required
to be paid by Altiva pursuant to the terms of the Subordinated Loan Agreement or
this Agreement or any other Subordinated Loan Document).
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section and
paragraph references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. RIGHTS IN COLLATERAL.
-3-
(a) Notwithstanding anything to the contrary contained in any
Senior Document or any Subordinated Loan Document and irrespective of:
(1) the time, order or method of attachment or perfection of
the security interests created by any Senior Document or any
Subordinated Loan Document,
(2) the time or order of filing or recording of financing
statements or other documents filed or recorded to perfect security
interests in any Collateral,
(3) anything contained in any filing or agreement to which
Greenwich or any Subordinated Lender now or hereafter may be a party,
and
(4) the rules for determining priority under the Uniform
Commercial Code or any other law governing the relative priorities of
secured creditors,
any security interest in any Collateral pursuant to any Senior Document has and
shall have priority, to the extent of any unpaid Senior Obligations, over any
security interest in such Collateral pursuant to any Subordinated Loan Document.
(b) So long as the Senior Obligations have not been paid in
full and any Senior Document remains in effect, whether or not any event or
proceeding described in clause (1) of the definition of "Insolvency Event" has
been commenced by or against Altiva,
(1) no Subordinated Lender will (A) exercise or seek to
exercise any rights or exercise any remedies with respect to any
Collateral or (B) institute any action or proceeding with respect to
such rights or remedies, including without limitation, any action of
foreclosure against any Collateral or (C) contest, protest or object to
any foreclosure proceeding or action brought by Greenwich or any other
exercise by Greenwich of any rights and remedies under any Senior
Document; and
(2) Greenwich shall have the exclusive right to enforce rights
and exercise remedies with respect to the Collateral;
PROVIDED, that, except as provided in Section 10(b) of this Agreement, nothing
contained in this Agreement shall prevent a Subordinated Lender from exercising
or seeking to exercise any rights or remedies with respect to any assets pledged
by Altiva to secure the Subordinated Obligations which are not included in the
Collateral.
(c) In exercising rights and remedies with respect to the
Collateral, Greenwich may enforce the provisions of the Senior Documents, all in
such order and in such manner as they may determine in the exercise of their
sole business judgment. Such exercise and enforcement shall include, without
limitation, the rights to sell or otherwise dispose of Collateral, to incur
expenses in connection with such sale or disposition and to exercise all the
rights and remedies of a secured lender under the Uniform Commercial Code of any
applicable jurisdiction.
(d) When all Senior Obligations have been paid in full and the
Senior Documents
-4-
no longer are in effect, the Subordinated Lenders shall have the right to
enforce the provisions of the Subordinated Loan Documents and exercise remedies
thereunder with respect to the Collateral.
(e) Any money, property or securities realized upon the sale,
disposition or other realization by Greenwich, Altiva or any Subordinated Lender
upon all or any part of the Collateral or any collections, distributions or
other proceeds received by Greenwich in respect of the Collateral shall be
applied by Greenwich, Altiva or any Subordinated Lender in the following order:
(1) FIRST, to the payment in full of all costs and expenses
(including, without limitation, attorneys' fees and disbursements) paid
or incurred by Greenwich in connection with the such realization on the
Collateral or the protection of their rights and interests therein;
(2) SECOND, to the payment in full of all Senior Obligations
in such order as Greenwich may elect in its sole discretion;
(3) THIRD, to pay the balance to the Subordinated Lenders,
unless the Subordinated Lenders shall have notified Greenwich in
writing that the Subordinated Lenders have been paid in full; and
(4) FOURTH, if the Subordinated Lenders has been paid in full,
to pay to Altiva, or its representative or as a court of competent
jurisdiction may direct, any surplus then remaining.
(f) Greenwich's rights with respect to the Collateral include
the right to release any or all of the Collateral from the lien of any Senior
Document or Subordinated Loan Document in connection with the sale of such
Collateral; PROVIDED, that the net proceeds of any such sale shall be used to
permanently prepay the Senior Obligations or Subordinated Obligations
(including, without limitation, reimbursement of expenses and indemnities
provided in the Subordinated Loan Documents), and subject to the Subordinated
Lenders' right under the Subordinated Loan Documents to retain such balance as
security for repayment of the Subordinated Notes in accordance with their terms.
If Greenwich shall determine, in connection with any sale of Collateral, that
the release of the lien of any Subordinated Loan Document on such Collateral in
connection with such sale is necessary or advisable, the Subordinated Lenders
shall execute such release documents and instruments and shall take such further
actions as Greenwich shall request, subject to the Subordinated Lenders' right
under the Subordinated Loan Documents to retain such proceeds as security for
repayment of the Subordinated Notes in accordance with their terms. Each
Subordinated Lender hereby irrevocably constitutes and appoints Greenwich and
any officer or agent of Greenwich, with full power of substitution, as its true
and lawful attorney-in-fact with full irrevocable power and authority in the
place and stead of such Subordinated Lender and in the name of such Subordinated
Lender or in Greenwich's own name, from time to time in Greenwich's discretion,
for the purpose of carrying out the terms of this paragraph, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this paragraph,
including, without limitation, any financing statements, endorsements,
assignments or other instruments of transfer or release.
-5-
Each Subordinated Lender hereby ratifies all that said attorneys shall lawfully
do or cause to be done pursuant to the power of attorney granted in this
paragraph.
3. COLLATERAL AGENCY.
(a) Greenwich acknowledges that it holds and will hold the
Collateral (i) for the purpose of perfecting and maintaining perfection of its
own first and prior security interest therein and (ii) as bailee for the
Subordinated Lenders for the purpose of maintaining perfection of the
Subordinated Lenders' second and subordinate security interest therein.
Notwithstanding anything to the contrary herein, Greenwich's sole duties
hereunder with respect to the Collateral shall be to hold the Collateral, to
release the Collateral in accordance with the terms hereof and to remit amounts
received by Greenwich in respect of the Collateral in accordance with Section
2(e) hereof.
(b) Greenwich agrees that it shall not release or deliver the
Collateral to any person or entity other than the Subordinated Lenders or their
designee (designated in writing by the Subordinated Lenders to Greenwich),
without the express prior written consent of the Subordinated Lenders, except in
connection with the enforcement of remedies against the Collateral by Greenwich.
(c) Greenwich agrees that if and when the Senior Obligations
are paid in full and satisfied, Greenwich shall deliver physical possession of
the Collateral to (and only to) the Subordinated Lenders or their designee, at
the address designated by the Subordinated Lenders in writing, unless Greenwich
shall have received written notice from the Subordinated Lenders that the
Subordinated Obligations have been paid in full and satisfied in accordance with
the terms of the Subordinated Loan Documents, in which case Greenwich shall
deliver physical possession of the Collateral to Altiva or its designee.
(d) Greenwich agrees that it shall handle and maintain the
Collateral with the same standard of care with which it holds similar
instruments pledged to Greenwich as collateral.
(e) The Subordinated Lenders agree to indemnify Greenwich, its
affiliates, officers, directors and agents (the "INDEMNIFIED PARTIES") and hold
the Indemnified Parties harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Senior
Obligations) be imposed on, incurred by or asserted against any of the
Indemnified Parties in any way relating to or arising out of this Agreement or
any action taken or omitted by any of the Indemnified Parties under or in
connection herewith; PROVIDED, that no Subordinated Lenders shall be liable to
any Indemnified Party for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting in substantial part from such Indemnified
Party's gross negligence or willful misconduct. The agreements in this Section
3(e) shall survive the payment of the Senior Obligations and all other amounts
payable under the Senior Documents.
4. CONSENT OF SUBORDINATED LENDERS.
-6-
(a) Each Subordinated Lender consents that, without the
necessity of any reservation of rights against any Subordinated Lender, and
without notice to or further assent by any Subordinated Lender:
(1) any demand for payment of any Senior Obligations made by
Greenwich may be rescinded in whole or in part by Greenwich, and any
Senior Obligation may be continued, and the Senior Obligations, or the
liability of Altiva or any guarantor or any other party upon or for any
part thereof, or any collateral security or guarantee therefor or right
of offset with respect thereto, or any obligation or liability of
Altiva or any other party under the Senior Agreements or any other
agreement, may, from time to time, in whole or in part, be renewed,
extended, modified, accelerated, compromised, waived, surrendered, or
released by Greenwich; and
(2) the Senior Agreement and any other Senior Document may be
amended, modified, supplemented or terminated, in whole or in part, as
may deem advisable from time to time, and any collateral security at
any time held by Greenwich for the payment of any of the Senior
Obligations may be sold, exchanged, waived, surrendered or released,
in each case all without notice to or further assent by any Subordinated Lender,
which will remain bound under this Agreement, and all without impairing,
abridging, releasing or affecting the lien subordination provided for herein.
(b) Each Subordinated Lender waives any and all notice of the
creation, renewal, extension or accrual of any of the Senior Obligations and
notice of or proof of reliance by Greenwich upon this Agreement. The Senior
Obligations, and any of them, shall be deemed conclusively to have been created,
contracted or incurred in reliance upon this Agreement, and all dealings between
Altiva and Greenwich shall be deemed to have been consummated in reliance upon
this Agreement. Each Subordinated Lender waives notice of or proof of reliance
on this Agreement and protest, demand for payment and notice of default.
5. NEGATIVE COVENANTS OF THE SUBORDINATED LENDERS. So long as
any of the Senior Obligations shall remain outstanding, no Subordinated Lender
shall, without the prior written consent of Greenwich:
(a) sell, assign, or otherwise transfer, in whole or in part,
the Subordinated Obligations or any interest therein to any other Person (a
"TRANSFEREE") or create, incur or suffer to exist any security interest, lien,
charge or other encumbrance whatsoever upon the Subordinated Obligations in
favor of any Transferee unless (1) such action is made expressly subject to this
Agreement and (2) the Transferee expressly acknowledges to Greenwich, by a
writing in substantially in the form of Exhibit A attached hereto, the lien
subordination provided for herein and agrees to be bound by all of the terms
hereof;
(b) permit any of the Subordinated Loan Documents to be
amended, modified or otherwise supplemented to provide for a stated maturity
date or scheduled payments of principal
-7-
or interest prior to December 31, 1999.
6. SENIOR OBLIGATIONS UNCONDITIONAL. All rights and interests
of Greenwich hereunder, and all agreements and obligations of the Subordinated
Lenders and Altiva hereunder, shall remain in full force and effect irrespective
of:
(a) any lack of validity or enforceability of any Senior
Document;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Senior Obligations, or any amendment or
waiver or other modification, whether by course of conduct or otherwise, of the
terms of any Senior Document;
(c) any exchange, release or nonperfection of any security
interest in any Collateral, or any release, amendment, waiver or other
modification, whether in writing or by course of conduct or otherwise, of all or
any of the Senior Obligations or any guarantee thereof; PROVIDED, that any
Collateral which is released by Greenwich shall no longer be subject to this
Agreement; or
(d) any other circumstances which otherwise might constitute a
defense available to, or a discharge of, Altiva in respect of the Senior
Obligations, or of either any Subordinated Lender or Altiva in respect of this
Agreement.
7. REPRESENTATIONS AND WARRANTIES. Each Subordinated Lender
represents and warrants to Greenwich as of the date hereof that:
(a) Its Subordinated Notes (1) have been issued to it for good
and valuable consideration and (2) constitute the only evidence of the
obligations evidenced thereby.
(b) Such Subordinated Lender has capacity and the legal right
to execute and deliver and to perform its obligations under this Agreement and
has taken all necessary action to authorize its execution, delivery and
performance of this Agreement.
(c) This Agreement constitutes a legal, valid and binding
obligation of such Subordinated Lender.
(d) The execution, delivery and performance of this Agreement
will not violate any provision of any requirement of law or contractual
obligation of such Subordinated Lender and will not result in the creation or
imposition of any lien on any of the properties or revenues of such Subordinated
Lender pursuant to any requirement of law affecting or any contractual
obligation of such Subordinated Lender.
(e) No consent or authorization of, filing with, or other act
by or in respect of, any arbitrator or Governmental Authority and no consent of
any other Person (including, without limitation, any creditor of such
Subordinated Lender), is required in connection with the execution, delivery,
performance, validity or enforceability of this Agreement.
-8-
8. NO REPRESENTATION BY GREENWICH. Greenwich has not made, and
does not hereby or otherwise make to the Subordinated Lenders, any
representations or warranties, express, or implied, nor does Greenwich assume
any liability to any Subordinated Lender with respect to: (a) the financial or
other condition of obligors under any instruments of guarantee with respect to
the Senior Obligations, (b) the enforceability, validity, value or
collectibility of the Senior Obligations or the Subordinated Obligations, any
collateral therefor, or any guarantee or security which may have been granted in
connection with any of the Senior Obligations or the Subordinated Obligations or
(c) Altiva's title or right to transfer any Collateral or security.
9. WAIVER OF CLAIMS. To the maximum extent permitted by law,
each Subordinated Lender waives any claim it might have against Greenwich with
respect to, or arising out of, any action or failure to act or any error of
judgment, negligence, or mistake or oversight whatsoever on the part of
Greenwich or their respective directors, officers, employees or agents with
respect to any exercise of rights or remedies under the Senior Documents or any
transaction relating to the Collateral. Neither Greenwich nor any of their
respective directors, officers, employees or agents shall be liable for failure
to demand, collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of Altiva or any Subordinated Lender or any other
Person or to take any other action whatsoever with regard to the Collateral or
any part thereof.
10. PROVISIONS APPLICABLE AFTER BANKRUPTCY; NO TURNOVER.
(a) The provisions of this Agreement shall continue in full
force and effect notwithstanding the occurrence of any event contemplated under
clause (a) of the definition of "Insolvency Event."
(b) To the extent that any Subordinated Lender has or acquires
any rights under Section 363 or Section 364 of the Bankruptcy Code with respect
to the Collateral, such Subordinated Lender hereby agrees not to assert such
rights without the prior written consent of Greenwich, which shall not be
unreasonably withheld.
11. FURTHER ASSURANCES. The Subordinated Lenders and Altiva,
at their own expense and at any time from time to time, upon the written request
of Greenwich will promptly and duly execute and deliver such further instruments
and documents and take such further actions as Greenwich reasonably may request
for the purposes of obtaining or preserving the full benefits of this Agreement
and of the rights and powers herein granted.
12. EXPENSES.
(a) Altiva will pay or reimburse Greenwich, upon demand, for
all its reasonable costs and expenses in connection with the enforcement or
preservation of any rights under this Agreement, including, without limitation,
reasonable fees and disbursements of counsel to
-9-
Greenwich.
(b) Altiva will pay, indemnify, and hold Greenwich harmless
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions (whether sounding in contract, tort or on any other ground),
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of, or in any other way arising out of or relating to this
Agreement or any action taken or omitted to be taken by Greenwich with respect
to any of the foregoing.
13. PROVISIONS DEFINE RELATIVE RIGHTS. This Agreement is
intended solely for the purpose of defining the relative rights of Greenwich on
the one hand and the Subordinated Lenders on the other, and no other Person
shall have any right, benefit or other interest under this Agreement.
14. POWERS COUPLED WITH AN INTEREST. All powers,
authorizations and agencies contained in this Agreement are coupled with an
interest and are irrevocable until the Senior Obligations are paid in full.
15. NOTICES. All notices, requests and demands to or upon
Greenwich or Altiva or any Subordinated Lender to be effective shall be in
writing (or by fax or similar electronic transfer confirmed in writing) and
shall be deemed to have been duly given or made (1) when delivered by hand or
(2) if given by mail, when deposited in the mails by certified mail, return
receipt requested, or (3) if by fax or similar electronic transfer, when sent
and receipt has been confirmed, addressed as follows:
If to Greenwich: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
If to Altiva: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
If to any Subordinated Lender, at its address or transmission number for notices
set forth under its signature below.
Greenwich, Altiva and any Subordinated Lender may change their addresses and
transmission numbers for notices by notice in the manner provided in this
Section.
-10-
16. COUNTERPARTS. This Agreement may be executed by one or
more of the parties on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the counterparts of this Agreement signed by all the
parties shall be lodged with Greenwich.
17. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
18. INTEGRATION. This Agreement represents the agreement of
Greenwich and the Subordinated Lenders with respect to the subject matter hereof
and there are no promises or representations by Greenwich or any Subordinated
Lender relative to the subject matter hereof not reflected herein.
19. AMENDMENTS IN WRITING; NO WAIVER: CUMULATIVE REMEDIES.
(a) None of the terms or provisions of this Agreement may be
waived, amended, supplemented or otherwise modified except by a written
instrument executed by Greenwich, Altiva and each Subordinated Lender; PROVIDED,
that any provision of this Agreement may be waived by Greenwich in a letter or
agreement executed by Greenwich or by facsimile transmission from Greenwich.
(b) No failure to exercise, nor any delay in exercising, on
the part of Greenwich, any right, power or privilege hereunder shall operate as
a waiver thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
20. SECTION HEADINGS. The section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
21. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the successors and assigns of Altiva and the Subordinated Lenders and shall
inure to the benefit of Greenwich and their successors and assigns.
22. GOVERNING LAW. This Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
-11-
23. LEGEND. The Subordinated Lenders shall cause each
Subordinated Loan Document at all times to bear a conspicuous legend relating to
the applicability of this Agreement to such Subordinated Loan Document as
follows:
"THIS AGREEMENT IS SUBJECT TO THE TERMS AND CONDITIONS OF THE
INTERCREDITOR AND COLLATERAL SUBORDINATION AGREEMENT, DATED
AUGUST 13, 1999 (THE "SUBORDINATION AGREEMENT"), AS THE SAME
MAY BE AMENDED, MODIFIED OR OTHERWISE SUPPLEMENTED FROM TIME
TO TIME, BY AND AMONG ALTIVA FINANCIAL CORPORATION, AS
BORROWER, GREENWICH CAPITAL MARKETS, INC. AND GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC., PARTIES TO THE SENIOR
AGREEMENTS REFERRED TO IN THE SUBORDINATION AGREEMENT, AND THE
HOLDERS FROM TIME TO TIME OF THE OBLIGATIONS ARISING UNDER THE
SUBORDINATED LOAN AGREEMENT REFERRED TO IN THE SUBORDINATION
AGREEMENT."
[Signature Pages Follow]
-12-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
GREENWICH CAPITAL MARKETS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
ALTIVA FINANCIAL CORPORATION
By: /s/ Champ Meyercord
----------------------------
Name: Champ Meyercord
Title: Chairman
-13-
VALUE PARTNERS, LTD.
by: ▇▇▇▇▇ & PARTNERS,
general partner
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Partner
Address:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
-14-
