JUNIOR SUBORDINATION AGREEMENT
JUNIOR SUBORDINATION AGREEMENT (this "Agreement"), dated as of March
27, 1998 among (a) BANKBOSTON, N.A., a national banking association, having its
head office at 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, in its capacity as agent
(the "Agent") for the Banks (as hereinafter defined), (b) 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 Agent and Banks, the
"Senior Creditors") (c) each of the Persons listed on Schedule 1 hereto and
having an address set forth opposite such Person's name on Schedule 1 (each a
"Subordinating Creditor" and together the "Subordinating Creditors") and (d)
NATIONAL AUTO FINANCE COMPANY, INC., a Delaware corporation, having its head
office at 000 X.X. 00xx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000 (the
"Borrower").
WHEREAS, pursuant to a Revolving Credit Agreement dated as of
September 29, 1997 (as amended and in effect from time to time, including any
replacement agreement therefor, the "Credit Agreement"), among the financial
institutions party thereto (the "Banks"), the Agent and the Borrower, the Banks
have agreed, upon the terms and subject to the conditions contained therein, to
make loans and otherwise to extend credit to the Borrower; and
WHEREAS, pursuant to a Securities Purchase Agreement, dated as of
December 19, 1997 (as amended and in effect from time to time, including any
replacement agreement therefor, the "Note 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 Securities Purchase Agreement, dated as of
March 27, 1998 (as amended and in effect from time to time, including any
replacement agreement therefor, the "Securities Purchase Agreement"), between
the Borrower and SFHY, SFHY has extended credit to the Borrower; and
WHEREAS, each Subordinating Creditor has extended credit to the
Borrower evidenced by certain promissory notes described on Exhibit A hereto (as
amended with the consent of the Agent as provided herein and in effect from time
to time, the "Junior Subordinated Notes"), issued by the Borrower to each of the
Subordinating Creditors; and
WHEREAS, it is a condition precedent to the Banks' willingness to
continue to make loans and otherwise to extend credit to the Borrower pursuant
to the
Doc#:DS4:339764.1 2521
Credit Agreement, the Senior Subordinated Creditors' willingness to continue to
extend credit to the Borrower pursuant to the Note Purchase Agreement and SFHY's
willingness to extend credit to the Borrower pursuant to the Securities Purchase
Agreement that the Borrower and the Subordinating Creditors enter into this
Agreement with the Agent, the Senior Subordinated Creditors and SFHY; and
WHEREAS, in order to induce the Banks to continue to make loans and
otherwise extend credit to the Borrower pursuant to the Credit Agreement, to
induce the Senior Subordinated Creditors to continue to extend credit to the
Borrower pursuant to the Note Purchase Agreement, and to induce SFHY to extend
credit to the Borrower pursuant to the Securities Purchase Agreement, the
Borrower and the Subordinating Creditors have agreed to enter into this
Agreement with the Agent, the Senior Subordinated Creditors and SFHY;
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 Credit Agreement. In addition, the
following terms shall have the following meanings:
Senior Debt. All principal, interest, fees, costs, enforcement
expenses (including legal fees and disbursements), collateral protection
expenses and other reimbursement or indemnity obligations created or evidenced
by the Credit Agreement, any of the other Loan Documents, the Note Purchase
Agreement, the Securities Purchase Agreement or any of the Senior Subordinated
Notes (as defined in each of the Note Purchase Agreement and the Securities
Purchase 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 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 Junior Subordinated Notes,
any promissory notes executed in connection therewith 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 Credit
Agreement, the Note Purchase Agreement or the Securities Purchase 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 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, 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 Credit Agreement, the Note Purchase Agreement or the
Securities Purchase 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 Credit
Agreement, the Note Purchase Agreement or the Securities Purchase 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 Credit Agreement, the Note Purchase Agreement or the
Securities Purchase Agreement or would occur after giving effect thereto, the
Subordinating Creditors shall be permitted, subject to the Note Purchase
Agreement and the Securities Purchase Agreement, to convert the Subordinated
Debt to equity interests in the Borrower.
3. 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 limitation. Until the Senior Debt has been finally
paid in full in cash, the Subordinating Creditor 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.
4. Payments Held in Trust. Each Subordinating Creditor will hold in
trust and immediately pay over (a) to the Agent for the account of the Banks and
the Agent, or (b), in the event that the Senior Debt with respect to the Banks
and the Agent has been indefeasibly paid in full in cash or cash equivalents, to
the Senior Subordinated Creditors and SFHY 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 ss. 2.
5. 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 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 or
the Borrower may, by virtue of this Agreement, restrain the enforcement thereof
in the name of such Senior Creditor 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 Agent, for the account of the Banks
and the Agent, or, in the event that the Senior Debt with respect to the Banks
and the Agent has been indefeasibly paid in full in cash or cash equivalents, to
the Senior Subordinated Creditors and SFHY 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.
6. Bankruptcy, etc.
6.1 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 Agent or, in the event
that the Senior Debt with respect to the Banks and the Agent has been
indefeasibly paid in full in cash or cash equivalents, the Senior Subordinated
Creditors and SFHY are hereby irrevocably authorized at any
such meeting or in any such proceeding to receive or collect for the benefit of
the Banks and the Agent or the Senior Subordinated Creditors or SFHY, 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 Agent or, in the event that the Senior Debt with respect to the Banks and
the Agent has been indefeasibly paid in full in cash or cash equivalents, the
Senior Subordinated Creditors and SFHY in their discretion elect to effect,
until all of the Senior Debt shall have been paid in full in cash, rendering to
the Subordinating Creditors any surplus to which the Subordinating Creditors are
then entitled.
6.2 Securities by Plan of Reorganization or Readjustment.
Notwithstanding the foregoing provisions of ss. 6.1, 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.
6.3 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.
7. Lien Subordination. Each Subordinating Creditor acknowledges and
agrees that the Subordinated Debt is unsecured.
8. Further Agreements of Subordinating Creditor.
8.1 Further Assurances. Each Subordinating Creditor hereby
agrees, upon request of the Agent, the Senior Subordinated Creditors or SFHY at
any time and from time to time, to execute such other documents or instruments
as may be requested by the Agent, the Senior Subordinated Creditors or SFHY
further to evidence of public record or otherwise the senior priority of the
Senior Debt as contemplated hereby.
8.2 Books and Records. Each Subordinating Creditor further
agrees to maintain on its books and records such notations as the Agent or the
Senior Subordinated Creditors may reasonably request to reflect the
subordination contemplated hereby and to perfect or preserve the rights of the
Agent hereunder. A copy of this Agreement may be filed as a financing statement
in any Uniform Commercial Code recording office.
9. 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 and the Banks or the Borrower and the Senior
Subordinated Creditors or the Borrower and SFHY, as the case may be, may agree
to increase the amount of the Senior Debt or otherwise modify the terms of any
of the Senior Debt, and the Banks, the Senior Subordinated Creditors or SFHY 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 ss. 9 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 may have against the
Borrower.
10. 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
Subordinated Debt to any person other than a person who agrees in a writing,
satisfactory in form and substance to the Agent and a majority of the Senior
Subordinated Creditors and SFHY, to become a party hereto and to succeed to the
rights and to be bound by all of the obligations of the Subordinating Creditor
hereunder. In the case of any such disposition by any Subordinating Creditor,
such Subordinating Creditor will notify the Agent and the Senior Subordinated
Creditors at least 10 days prior to the date of any of such intended
disposition.
11. 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 ss. 3 or ss.
6) 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 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.
12. 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,
an Event of Default shall be deemed to have existed and to be continuing under
the Credit Agreement or the Note Purchase Agreement or the Securities Purchase
Agreement, as the case may be, from the date of such Senior Creditor's initial
receipt of such Voided Payment until the full amount of such Voided Payment is
restored to such Senior Creditor. 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 Creditor's 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 Agent or such Bank or the Senior Subordinated Creditors or
SFHY, as applicable, and each Subordinating Creditor hereby agrees to pay to
either (i) the Agent for the benefit of the Agent or (as the case may be) such
Bank or (ii) the Senior Subordinated Creditors, as
applicable, 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 Agent, such Bank or the Senior Subordinated Creditors or SFHY 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.
13. 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 Xx000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Vice President
with a copy Xxxxx X. Xxxxxx, Esq.
Xxxxxxx, Xxxx & Xxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
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 Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxx, Esq.
Telecopier No.: (000) 000-0000
If to PC Investment Company, Inc.:
000 Xxxxxxxx Xxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Telecopier No.: (000) 000-0000
with a copy Xxxxx & Xxxxxxxxx LLP
3200 National City Center
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
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 Manufacturers Life Insurance Company
Corporate Law Department
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X0XX, Xxxxxx
Attention: Xxxxxxx Xxxxxx, Esq.
Telecopier No: (000) 000-0000
If to SFHY: The Structured Finance High Yield Fund, LLC
c/o Prudential Investments -- Structured Finance
Group
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attention: Managing Director
If to any Subordinating Creditor, at the address set forth opposite
such Person's name on Schedule 1 hereto.
If to the Borrower621 X.X. 00xx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
with copies Xxxxx X. Xxxxx
National Financial Companies LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Xxxx X. Xxxxxxx
National Financial Companies LLC
Xxx Xxxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
000 Xxxxx Xxxxxxx Xxxxxxx
Xxxx Xxxxx, XX 00000
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.
14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MASSACHUSETTS AND SHALL
BE A SEALED INSTRUMENT UNDER SUCH LAWS.
15. 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 HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ANY SENIOR CREDITOR WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES
THAT EACH OF THE AGENT AND THE SENIOR SUBORDINATED CREDITORS HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS
CONTAINED HEREIN.
16. 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. The Agent, acting upon the instructions of
the requisite
Banks, and a majority in interest of the Senior Subordinated Creditors and SFHY
(collectively) 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 the Agent or a majority in
interest of the Senior Subordinated Creditors and SFHY (collectively), as
applicable, 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 the Senior Creditors' 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 "Credit
Agreement", "Loan Documents", "Event of Default", "Note Purchase Agreement",
"Securities Purchase Agreement", "Senior Subordinated Notes" and the like shall
refer mutatis mutandis to the agreements and instruments in favor of such lender
or lenders and to the related definitions contained therein. This Agreement
supercedes and replaces in its entirety the Junior Subordinated Agreement dated
as of December 22, 1997 among the Agent, the Senior Subordinated Creditors, the
Borrower and the Subordinating Creditors.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
SENIOR CREDITORS: BANKBOSTON, N.A., As Agent
By: _______________________________
Title:
THE 1818 MEZZANINE FUND, L.P.
By: Xxxxx Brothers Xxxxxxxx & Co.,
its General Partner
By: _______________________________
Name:
Partner
PC INVESTMENT COMPANY
By: _______________________________
Name:
Title:
MANUFACTURERS LIFE INSURANCE
COMPANY (U.S.A)
By: _______________________________
Name:
Title:
THE STRUCTURED FINANCE
HIGH YIELD FUND, LLC
By: _______________________________
Name:
Title:
SUBORDINATING
CREDITORS: NOVA FINANCIAL CORPORATION
By: _______________________________
Title:
NOVA CORPORATION
By: _______________________________
Title:
-----------------------------------
Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxx Xxxx
-----------------------------------
Xxxx X. Xxxxxxx
BORROWER: NATIONAL AUTO FINANCE COMPANY,
INC.
By: _______________________________
Title:
COMMONWEALTH or STATE OF ___________________
_______________, ss _________, 19__
Then personally appeared the above-named _________________, and
acknowledged the foregoing instrument to be ______ free act and deed and the
free act and deed of ____________,
Before me,
---------------------------
Notary Public
My Commission expires:
COMMONWEALTH or STATE OF ___________________
_______________, ss _________, 19__
Then personally appeared the above-named _________________, and
acknowledged the foregoing instrument to be ______ free act and deed and the
free act and deed of ____________,
Before me,
---------------------------
Notary Public
My Commission expires:
COMMONWEALTH or STATE OF ___________________
_______________, ss _________, 19__
Then personally appeared the above-named _________________, and
acknowledged the foregoing instrument to be ______ free act and deed and the
free act and deed of ____________,
Before me,
---------------------------
Notary Public
My Commission expires:
COMMONWEALTH or STATE OF ___________________
_______________, ss _________, 19__
Then personally appeared the above-named _________________, and
acknowledged the foregoing instrument to be ______ free act and deed and the
free act and deed of ____________,
Before me,
---------------------------
Notary Public
My Commission expires:
COMMONWEALTH or STATE OF ___________________
_______________, ss _________, 19__
Then personally appeared the above-named _________________, and
acknowledged the foregoing instrument to be ______ free act and deed and the
free act and deed of ____________,
Before me,
---------------------------
Notary Public
My Commission expires:
COMMONWEALTH or STATE OF ___________________
_______________, ss _________, 19__
Then personally appeared the above-named _________________, and
acknowledged the foregoing instrument to be ______ free act and deed and the
free act and deed of ____________,
Before me,
---------------------------
Notary Public
My Commission expires:
Schedule 1
Subordinating Creditors
Subordinating Creditor Address
Xxxxxxx Xxxxx Bullova Technologies
000 Xxxxx Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
Xxxxx Xxxx National Healthnet Services
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000 Xxxxx
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
Exhibit A
