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EXHIBIT 10.124
WAIVER
THIS WAIVER, effective as of September 30, 1999, by the 1818
Mezzanine Fund, L.P., a Delaware limited partnership (the "Fund"), PC Investment
Company, a Delaware corporation ("PCI"), Progressive Investment Company, Inc., a
Delaware corporation ("Progressive"), Manufacturers Life Insurance Company
(U.S.A.), a Michigan corporation ("ML"), and The Structured Finance High Yield
Fund, LLC, a Delaware limited liability company ("SFHY"), for the benefit of
National Auto Finance Company, Inc., a Delaware corporation (the "Company"). The
Fund, PCI, ML and SFHY are sometimes collectively referred to herein as the
"Noteholders," and the Fund and Progressive are sometimes collectively referred
to herein as the "Equityholders."
PRELIMINARY STATEMENT
Pursuant to a Securities Purchase Agreement, dated as of December 22,
1997 (the "December Agreement"), (i) the Fund, PCI and ML purchased from the
Company $40,000,000 aggregate principal amount of the Company's Senior
Subordinated Notes due December 22, 2004 (the "Notes"), and 1,038,924 detachable
warrants to purchase initially 1,038,924 shares of the Company's Common Stock,
par value $.01 per share (the "Common Stock"), and (ii) the Fund and Progressive
purchased 1,904,762 shares of the Company's Common Stock.
Pursuant to a Securities Purchase Agreement, dated as of March 27, 1998
(the "March Agreement"; the December Agreement and the March Agreement are
sometimes collectively
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referred to herein as the "Agreements"), SFHY purchased
from the Company, $20,000,000 aggregate principal amount of the Company's Notes
and 593,671 detachable warrants to purchase initially 593,671 shares of the
Company's Common Stock.
Pursuant to a Restructuring Agreement dated as of April 7, 1999 (the
"Restructuring Agreement"), among other things, the Company, the Noteholders and
the Equityholders amended Article 10 of each of the Agreements to add a new
Section 10.15, providing for a Return on Assets Covenant (as defined in the
Restructuring Agreement).
In conformity with applicable provisions of the Agreements and the
Restructuring Agreement (in particular, Section Eleven (11) Miscellaneous.
Subsection (e)(ii) Amendment and Waiver, of the Restructuring Agreement, the
Company has requested the Noteholders and Equityholders to waive the required
Return on Assets Covenant for the Measurement Period ended on September 30,
1999.
1. Waiver. For valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each of the Noteholders and
Equityholders, by and through its authorized corporate officers, does hereby
waive compliance by the Company with the Return on Assets Covenant for the
Measurement Period ended on the Measurement Date of September 30, 1999, as such
terms are defined in Section 10.15 of each of the Agreements and the
Restructuring Agreement.
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2. Ratification. Except as expressly set forth herein, this
Waiver shall not alter, waive, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the
Agreements, the Restructuring Agreement, or any other agreement executed in
connection therewith, all of which are hereby ratified and affirmed in all
respects by the Noteholders, Equityholders and the Company, and shall continue
in full force and effect. This Waiver shall apply solely to the waiver of the
Company's compliance requirements with respect to attaining the designated
Return on Assets Covenant for the Measurement Period ended on the Measurement
Date of September 30, 1999, and shall not be construed as waiving the Company's
compliance requirements with respect to such Return on Assets Covenant for any
future Measurement Period.
3. Counterparts. This Waiver may be executed in any number of
counterparts and by the parties hereto in separate counterparts of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same Waiver.
4. Notice of Waiver. In conformity and in accordance with
Section Eleven (11) Miscellaneous. Subsection (b) Notices of the Restructuring
Agreement, this Waiver is hereby delivered by telecopier to the following:
to the Fund: with a copy to:
The 1818 Mezzanine Fund, X.X. Xxxxxxxxxx, Xxxxxxxxxx & Xxxx
c/o Brown Brothers Xxxxxxxx & Co. 000 Xxxxxx Xxxx
00 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxx X.X. Xxxxxxx, Esq.
Attention: Xxxxxx Xxxxxx Telecopier No.: (000)000-0000
Telecopier No.: 000-000-0000
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to PCI or Progressive: with a copy to:
0 Xxxxxxxxx Xxxxx, 0xx Xxxxx Xxxxxxxxxx, Xxxxxxxxxx & Xxxx
Xxxxxx, Xxxxxxxxxxx 00000 000 Xxxxxx Xxxx
Attention: Xxxxxx Xxx Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000)000-0000 Attention: Xxxxx X.X. Xxxxxxx, Esq.
Telecopier No.: (000)000-0000
to ML: with a copy to:
c/o MF Private Capital, Inc. Manufacturers Life Insurance Company
00 Xxxx Xxxxxx, Xxxxx 000 Corporate Xxx Xxxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000 000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx: Xxxxxxx X. Xxxx, Xx. Xxxxxxx, Xxxxxxx X0X 0XX, Xxxxxx
Telecopier No.: (000)000-0000 Attention: Xxxxxxx Xxxxxx, Esq.
Telecopier No.: (000)000-0000
to SFHY: with a copy to:
The Structured Finance High Cadwalader, Xxxxxxxxxx & Xxxx
Yield Fund, LLC 000 Xxxxxx Xxxx
c/o Prudential Investments -- Structured Xxx Xxxx, Xxx Xxxx 00000
Finance Group Attention: Xxxxx X.X. Xxxxxxx, Esq.
One Gateway Center, 11th Floor Telecopier No.: (000)000-0000
Xxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
to the Company: with a copy to:
National Auto Finance Company, Inc. Weil, Gotshal & Xxxxxx LLP
00000 Xxxxxxxx Xxxx Xxxx., Xxxxx 000 000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000-0000
Attention:Xxxxxxx X. Xxxx Attention: Xxxxxx Xxxxxxxxxx, Esq.
Telecopier No.: (000) 000-0000 Telecopier No.: (000)000-0000
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IN WITNESS WHEREOF, each of the Noteholders and Equityholders has duly
executed this Waiver this 15th day of November, 1999.
THE 1818 MEZZANINE FUND, L.P.
By: Xxxxx Brothers Xxxxxxxx and Co.,
its General Partner
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
Title: Senior Manager
PC INVESTMENT COMPANY
By: /s/ XXXXXX XXX
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Name: Xxxxxx Xxx
Title: Portfolio Manager
PROGRESSIVE INVESTMENT
COMPANY, INC.
By: /s/ XXXXXX XXX
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Name: Xxxxxx Xxx
Title: Portfolio Manager
MANUFACTURERS LIFE INSURANCE
COMPANY (U.S.A.)
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Senior Managing Director
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THE STRUCTURED FINANCE HIGH YIELD
FUND, LLC
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Managing Director
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