EXECUTION COPY
LIEN SUBORDINATION AGREEMENT
LIEN SUBORDINATION
AGREEMENT ("Subordination Agreement"), dated
as of April 30, 1997, by Norwest Bank Minnesota,
National Association, as "Indenture Trustee" (as
defined below), in favor of III Finance Ltd., a
Cayman Islands corporation and such other parties
as may be holders of "Senior Indebtedness" (as such
term is defined in the Indenture referred to below).
W I T N E S S
E T H :
WHEREAS, pursuant to that certain
Indenture (the "Indenture") dated as of April 30,
1997 between, Aegis Auto Finance, Inc. (the
"Company") and Norwest Bank Minnesota, National
Association, as Trustee (herein called the "Indenture
Trustee"), the Issuer has issued those certain
$21,333,333 12% Exchangeable Subordinated Notes
(the "Securities"); and
WHEREAS, pursuant to the
"Collateral Documents" (as defined in the
Indenture), the Securities are secured by certain
"Collateral" (as defined in the Indenture), as more
expressly referenced in Section 15.01 of the
Indenture; and
WHEREAS, the Securities are also by
their terms subordinated in right of payment and
priority to the payment of "Senior Indebtedness" (as
defined in the Indenture), which Senior Indebtedness
is also secured by the Collateral; and
WHEREAS, the parties hereto are
entering into this Agreement in order, among other
things, to evidence the subordination of the
Indenture Trustee's lien on the Collateral and the
Proceeds and to define certain of the respective
rights of the Indenture Trustee and the holders of
Senior Indebtedness (or their representatives) with
respect to the Collateral and the Proceeds thereof.
NOW, THEREFORE, in
consideration of the premises and the mutual
agreements contained herein, the parties hereto agree
as follows:
1. Definitions. (a) Defined Terms. Capitalized
terms used herein and not otherwise defined in this
Agreement shall have the meanings ascribed to such
terms in the Indenture. In addition, the terms
defined above shall have their respective meanings
set forth above and the following terms shall have
the following meanings:
"Grantor" shall mean the Company,
the Parent and any of their Affiliates which now or
hereafter may grant a security interest to the
Indenture Trustee in order to secure the Junior
Indebtedness.
"Junior Indebtedness" shall mean all
principal and interest owed under or on account of
the Securities.
"Possessory Collateral" shall mean all
Collateral constituting instruments, certificated
securities or documents (each as defined in the
UCC) or other property in which a security interest
can be perfected only by possession.
"Proceeds" shall have the meaning set
forth in Section 9-306(1) of the UCC, and in any
event shall include (i) any and all proceeds of any
insurance, indemnity, warranty or guaranty payable
to either Company from time to time with respect to
any of the Collateral, (ii) any and all payments (in
any form whatsoever) made or due and payable to
either Company from time to time in connection
with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of the
Collateral by any governmental authority, (iii) any
dividends, distributions, redemptions or similar
payments in respect of any Collateral; and (iv) any
and all amounts from time to time paid or payable
under or in connection with any of the Collateral.
"Secured Parties" shall mean each of
(i) the Indenture Trustee and (ii) any Senior Secured
Party.
"Senior Secured Party" shall mean
any holder of Senior Indebtedness or representative
of such holder which has been granted a security
interest in or lien on any of the Collateral.
"Senior Security Agreement" shall
mean any security agreement, loan and security
agreement, pledge agreement, depositary account
agreement or any other agreement whereby a
security interest in or lien has been created on any
of the Collateral in favor of a Senior Secured Party.
"UCC" means the Uniform
Commercial Code as from time to tome in effect in
the State of New York.
(b) Other
Definitional
Provisions.
The words "hereof", and "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 provisions of this
Agreement, and Section references are to this
Agreement, unless otherwise specified. Wherever
appropriate in context, terms used herein in the
singular also include the plural, and vice-versa, and
each masculine, feminine or neuter pronoun shall
also include the other gender.
Section 2. Priorities Regarding
Collateral. Notwithstanding any term or provision
to the contrary contained in any Collateral
Document or any Senior Security Agreement
respecting any of the foregoing, and notwithstanding
the time, order or method of attachment or
perfection of any security interest, lien or
encumbrance granted thereby or the time or order of
filing or recording of financing statements or other
liens, pledges or security interests, and
notwithstanding anything contained in any filing or
agreement to which any Secured Party may now or
hereafter be a party, the Indenture Trustee hereby
agrees that all liens and security interests of the
Indenture Trustee, whether now or hereafter arising
and howsoever existing, in any of the Collateral and
the Proceeds thereof shall be and hereby are
subordinated to the liens and security interests of
each Senior Secured Party in the Collateral and
Proceeds thereof as collateral security for any of the
Senior Indebtedness. All amounts in respect of the
Collateral or Proceeds thereof, all amounts in respect
of such Collateral and any Proceeds thereof received
by any Secured Party (net of collection costs and
expenses) shall be distributed to all Senior Secured
Parties in satisfaction of the Senior Indebtedness
before any such amounts may be distributed to the
Indenture Trustee for satisfaction of the Junior
Indebtedness. The priority of interest of one Senior
Secured Party as against another Senior Secured
Party shall be as established by other law or
agreement without regard to this Agreement.
Section 3. Rights to Enforce;
Amounts in Trust. (a) The Indenture Trustee shall
have no right to possession of any Collateral or any
Proceeds thereof, or to enforce the collection
thereof, whether by notice to any person obligated
to make payments constituting such Collateral or
otherwise, or to foreclose upon any such Collateral
or any Proceeds thereof, whether by judicial action
or otherwise, unless and until all of the Senior
Indebtedness shall have been fully paid and satisfied
and all commitments on the part of any Senior
Secured Party to advance further funds to or for the
benefit of any Grantor have been terminated. In the
event that any Senior Secured Party sells, assigns,
disposes of or otherwise releases and of the
Collateral in order to satisfy the Senior
Indebtedness, the Indenture Trustee shall thereupon
execute and deliver to such Senior Secured Party
such termination statements and releases as such
Senior Secured Party shall reasonably request to
release the Indenture Trustee's security interest in or
lien against such Collateral. The Indenture Trustee
acknowledges and agrees that, to the extent the
terms and provisions of this Agreement are
inconsistent with the Collateral Documents or the
Indenture, the Collateral Documents and the
Indenture shall be deemed to be subject to this
Agreement.
(b) Should any payment or
distribution on account of the Collateral or any
Proceeds thereof be received by the Indenture
Trustee in violation of this Agreement, the Indenture
Trustee shall receive and hold such payment or
distribution in trust, as trustee, for the benefit of the
Senior Secured Parties and shall forthwith deliver
the same to the Senior Secured Party claiming a first
priority interest therein, in precisely the form
received (except for the endorsement or assignment
by the Indenture Trustee where necessary), for
application to all or any of the Senior Indebtedness,
provided, however, that the Indenture Trustee shall
be under no obligation to make such delivery in the
event that it has been given conflicting demands by
differing Senior Secured Parties unless the Indenture
Trustee shall have been indemnified to its
satisfaction against liability for following any such
instruction. In the event of the failure of the
Indenture Trustee to make any such endorsement or
assignment to a Senior Secured Party as required
hereinabove, then such other Secured Party or any
of its officers or employees is hereby irrevocably
authorized to make the same.
Section 4. Further Assurances. The
Indenture Trustee agrees for the benefit of the
Senior Secured Parties to execute further documents
or amendments, and to undertake such other actions,
as may be necessary to effect the purposes of this
Agreement, including, without limitation, any
registration or recordation upon any applicable
public records, or any bailment agreements or
notices required with respect to any Possessory
Collateral in the possession or under the control of
the Indenture Trustee. No Senior Secured Party
shall be under any duty to or obligation to the
Indenture Trustee or the holder of the Securities to
ensure that the Indenture Trustee's security interest
in any Possessory Collateral has been perfected,
which duties shall remain the obligations of the
relevant Grantor as set forth in any Collateral
Document.
Section 5. No Liability. Except as
may be otherwise expressly agreed by a Secured
Party, the Indenture Trustee has not made to any
Senior Secured Party and no Senior Secured Party
has made to the Indenture Trustee nor does the
Indenture Trustee hereby or otherwise make any
representations or warranties, express or implied, nor
does the Indenture Trustee assume any liability to
any other Secured Party nor does any such Secured
Party have any liability to the Indenture Trustee
with respect to: (a) obligors under any instruments
of guarantee; (b) the enforceability, validity, value
or collectibility of the extension of any of the credit
facilities to any Grantor, any collateral therefor, or
any guarantee or security which may have been
granted to any of them in connection with any
Senior Indebtedness or Junior Indebtedness; or (c)
any Grantor's title or right to transfer any of the
Collateral. Except as otherwise provided under the
UCC, no Senior Secured Party shall be liable to the
Indenture Trustee nor shall the Indenture Trustee be
liable to any Senior Secured Party for any action or
failure to act or any error or judgment, negligence,
or mistake or oversight whatsoever on its part or the
part of any of its agents, officers, employees or
attorneys with respect to any transaction relating to
any Indebtedness of any Grantor or any security or
guarantees therefor, provided that nothing in this
Section 5 shall relieve any party from liability
arising on account of such party's gross negligence
or willful misconduct.
Section 6. Amendments, Agreements,
Etc. (a) Each Senior Secured Party, at any time and
from time to time may enter into such agreement or
agreements with the Grantors as such Senior
Secured Party may deem proper, extending the time
of payment of or renewing or otherwise altering the
terms of all or any of the Senior Indebtedness, as
the case may be, without in any way thereby
impairing or affecting this Agreement.
(b) The Indenture Trustee hereby
agrees that it shall not have, and hereby waives, any
claim it might otherwise now or hereafter have
against any Senior Secured Party which claim (i)
would not have existed but for a Grantor's grant of
a junior lien to the Indenture Trustee in any of the
Collateral and (ii) arises out of, any and all actions
which a Senior Secured Party, in good faith, takes
or omits to take (including without limitation,
actions with respect to the creation, perfection or
continuation of liens or security interests in the
Collateral and any other security for the Senior
Indebtedness and actions with respect to the
collection or foreclosure upon, sale, release, or
depreciation of, or failure to realize upon, any of
such Collateral and actions with respect to the
collection of any claim for all or any part of the
Senior Indebtedness from any account debtor,
guarantor or any other party) or to the collection of
such Senior Indebtedness or the valuation, use,
protection or release of any Collateral and/or other
security for the Senior Indebtedness other than those
resulting from the gross negligence or willful
misconduct of such Senior Secured Party. Without
limiting the foregoing, the Indenture Trustee agrees
that it will not in any manner interfere with or
otherwise oppose a sale or other disposition of
Collateral to which the applicable Senior Secured
Parties have otherwise consented.
Section 7. Bankruptcy Issues. The
agreements of the parties set forth herein shall
survive the filing of a petition in bankruptcy by or
against any Grantor and the Indenture Trustee agrees
that it will not object to or oppose a sale or other
disposition of any Collateral (or any portion thereof)
free and clear of security interests, liens or other
claims of the Indenture Trustee under Section 363 of
the Bankruptcy Code of 1978, as amended (the
"Bankruptcy Code") or any other provision of the
Bankruptcy Code if the applicable Senior Secured
Party has consented to such sale or disposition of
such Collateral and so long as the Proceeds of such
disposition (net of any amounts which are required
by court order to be paid to third parties) are applied
in accordance with Section 2 hereof. The Indenture
Trustee further agrees that it will not seek to have
the automatic stay lifted with respect to such
Collateral without the prior written consent of all
Senior Secured Parties claiming an interest in such
Collateral.
Section 8. Notices. The Indenture
Trustee hereby expressly waives all notice of the
acceptance by any Senior Secured Party of the
subordination and other provisions of this
Agreement and all other notices not specifically
required pursuant to the terms of this Agreement
whatsoever, and the undersigned expressly waives
reliance by any such Senior Secured Party upon the
subordination and other agreements as herein
provided.
Section 9. Successors and
Assigns. This Agreement shall be binding upon and
shall insure to the benefit of each Secured Party and
its respective participants, successors and assigns.
Section 10.
Counterparts.
This
Agreement may be executed in any number of
counterparts and by the different parties hereto in
separate counterparts, each of which when so
executed and delivered shall be deemed an original,
and all of which shall together constitute one and
the same agreement.
Section 11. Waivers and
Amendments. Neither this Agreement nor any terms
hereof may be amended, modified or otherwise
supplement except in writing signed by the parties
hereto.
Section 12.
Governing
Law.
THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED
BY THE LAWS OF THE STATE OF NEW
YORK.
Section 13. Third Party Rights.
This Agreement is solely for the benefit of the
Secured Parties and their respective participants,
successors and assigns, and no other person, firm,
entity or corporation, including, but not limited to,
the Companies, shall have any right, benefit, priority
or interest under, or because of the existence of, this
Agreement.
Section 14. Merger. This
Agreement represents the agreements of the
Indenture Trustee and the Grantors with respect to
the subject matter hereof and there are no
agreements, promises, undertakings, representations
or warranties relative to the subject matter hereof
not expressly set forth or referred to herein, and this
Agreement supersedes all prior agreements, if any,
relative to the subject matter hereof.
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly
executed by their proper and duly authorized
officers as of the day and year first above written.
Each of the Grantors, although not a direct party
hereto, has signed below to indicate its
understanding of the foregoing and its acceptance
and agreement with all of the terms and provisions
hereof.
NORWEST BANK MINNESOTA, N.A.,
AS INDENTURE TRUSTEE
By__________________
Name:_______________
Title:______________
III FINANCE LTD.
By__________________
Name:_______________
Title:______________
Acknowledged and agreed to
as of the date first above
written:
THE AEGIS CONSUMER FUNDING GROUP,
INC.
By_________________________________
Name:______________________________
Title:_______________________________
AEGIS AUTO FINANCE, INC.
By_________________________________
Name:______________________________
Title:_____________________________
AEGIS CONSUMER FINANCE, INC.
By_________________________________
Name:______________________________
Title:_____________________________
AEGIS CAPITAL MARKETS, INC.
By_________________________________
Name:______________________________
Title:_____________________________
AEGIS ACCEPTANCE CORP.
By_________________________________
Name:______________________________
Title:_____________________________
