REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of August 9, 1996, by
and among National Auto Finance Company L.P., a Delaware limited partnership
(the "Company"), and the Persons set forth on Schedule I attached hereto (the
"Investors").
The Investors intend to purchase the Company's Deferred Additional
Interest Notes. The execution and delivery of this Agreement is a condition to
the Investors' purchase of the Deferred Additional Interest Notes. Capitalized
terms used herein shall have the meanings set forth in Section 9 below.
NOW, THEREFORE, the parties hereto, in consideration of the foregoing,
the mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, agree as follows:
1. Registration Statements.
(a) Demand Registration. (i) At any time after the consummation of an
Initial Public Offering, (A) if no Automatic Exchange Event has occurred, upon
each notice to the Company by the Xxxxx Foundation or the New York Trust, or (B)
if an Automatic Exchange Event (including without limitation a Qualified Public
Offering) has occurred, upon each notice to the Company by the holders of
Registrable Securities then constituting at least a majority of the Registrable
Securities, requesting, in the case of either (A) or (B), the registration of a
specified number of Registrable Securities, the Company shall, as promptly as
practicable and in any event not later than 90 days after the Company's receipt
of such notice, prepare and file with the Commission under the Securities Act a
Registration Statement with respect to the Registrable Securities to which such
notice relates, and shall use its reasonable best efforts to cause such
Registration Statement to be declared effective at the earliest practicable date
and to prepare and make available a Prospectus meeting the requirements of
Section 10(a) of the Securities Act and providing for the method of disposition
determined pursuant to Section 1(a)(iii) for such period as may be required by
the Securities Act, but in no event beyond the period reasonably required by the
underwriter(s) in any Underwritten Offering permitted pursuant to Section 7;
provided, that the Company will not be required to effect any such registration
within the period beginning on the effective date of a Registration Statement
filed by the Company on its behalf covering a firm commitment Underwritten
Offering and ending on the later of (A) 90 days after such effective date and
(B) the expiration of any lock-up period required by the underwriters, if any,
in connection therewith; and provided, further, that the Company shall use its
reasonable best efforts to, and shall cause each underwriter participating in
such registration and disposition to use its reasonable best efforts to, cause
any registration and disposition of Registrable Securities requested pursuant to
Section 1(a)(i)(A) to constitute a Qualified Public Offering. Two requests for
registration may
be made pursuant to this Section 1(a)(i); provided, that the number of such
permissible requests shall be increased as set forth in Sections 1(c)(ii)(A) and
1(c)(iv).
(ii) At any time that is both after the fifth anniversary of the
Closing Date and prior to the consummation of an Initial Public Offering, (A) if
no Automatic Exchange Event has occurred, upon each notice to the Company by the
Xxxxx Foundation or the New York Trust, or (B) if an Automatic Exchange Event
(other than a Qualified Public Offering) has occurred, upon each notice to the
Company by the holders of Registrable Securities then constituting at least a
majority of the Registrable Securities, requesting, in the case of either (A) or
(B), the registration of a specified number of Registrable Securities, the
Company shall, as promptly as practicable and in any event not later than 90
days after the Company's receipt of such notice, prepare and file with the
Commission under the Securities Act a Registration Statement with respect to the
Registrable Securities to which such notice relates, and shall use its
reasonable best efforts to cause such Registration Statement to be declared
effective at the earliest practicable date and to prepare and make available a
Prospectus meeting the requirements of Section 10(a) of the Securities Act and
providing for the method of disposition determined pursuant to Section 1(a)(iii)
for such period as may be required by the Securities Act, but in no event beyond
the period reasonably required by the underwriter(s) in any Underwritten
Offering permitted pursuant to Section 7; provided, that the Company will not be
required to effect any such registration within the period beginning on the
effective date of a Registration Statement filed by the Company on its behalf
covering a firm commitment Underwritten Offering and ending on the later of (A)
90 days after such effective date and (B) the expiration of any lock-up period
required by the underwriters, if any, in connection therewith; and provided,
further, that the Company shall use its reasonable best efforts to, and shall
cause each underwriter participating in such registration and disposition to use
its reasonable best efforts to, cause any registration and disposition of
Registrable Securities requested pursuant to Section 1(a)(ii)(A) to constitute a
Qualified Public Offering. One request for registration may be made pursuant to
this Section 1(a)(ii).
(iii) If a request for registration is made pursuant to Section
1(a)(i) or 1(a)(ii), the Company shall promptly give written notice of such
request to all holders of Registrable Securities who did not participate in such
request; and each of such holders shall have the right, by giving written notice
to the Company promptly (and in any event within 30 days after such notice is
given by the Company), to join in such request and to have included in the
Registration Statement to be filed by the Company pursuant to such request such
number of Registrable Securities as such holder shall specify in such notice;
and the method of distribution of the Registrable Securities to be included in
such Registration Statement under Section 1(a)(i) or 1(a)(ii) shall be selected
by the holders of a majority of the Registrable Securities with respect to which
the request for registration was made under Section 1(a)(i) and this Section
1(a)(iii), collectively, or under Section 1(a)(ii) and this Section 1(a)(iii),
collectively;
2
(iv) The Company may delay the filing of a Registration Statement
requested pursuant to this Section 1(a) if, in its reasonable judgment, (A) the
filing of such Registration Statement at such time would adversely affect a
proposed financing, reorganization or recapitalization, or pending negotiations
relating to a merger, consolidation, acquisition or similar transaction, or
otherwise adversely affect the Company; or (B) financial statements meeting the
requirements of Regulation S-X are not available at such time because of any
such pending proposal or negotiations; provided, however, that the right of the
Company pursuant to this subsection (iv) to delay the filing of a Registration
Statement shall not extend for more than 135 days from the date that notice is
given pursuant to Section 1(a)(i) or 1(a)(ii), as the case may be, requesting
registration.
(b) Incidental Registration. (i) In addition to, and independent of the
rights afforded by Section 1(a), prior to filing with the Commission any
Registration Statement (other than a Registration Statement on Form S-4 or S-8
or any successor forms to such Forms) with respect to (A) any public offering by
and for the account of the Company of its equity securities or any securities
convertible into or exchangeable or exercisable for such equity securities or
(B) any public offering by the Company for the account of IronBrand, or any
other holders of equity securities of the Company, of the Company's equity
securities or any securities convertible into or exchangeable or exercisable for
such equity securities, the Company shall notify each holder of the Registrable
Securities of such proposed filing, specifying whether such offering is to be an
Underwritten Offering and if so, the price range at which the shares are
expected to be offered pursuant thereto. Any such holder wishing to have any of
such holder's Registrable Securities included in such Registration Statement
shall promptly (and in any event within 30 days after such notice is given by
the Company) give written notice to the Company requesting registration of such
holder's Registrable Securities, specifying the number of Registrable Securities
requested to be registered and describing the proposed method of disposition
thereof, and if the proposed offering is to be an Underwritten Offering and such
holder wishes to participate therein, specifying the number of Registrable
Securities which such holder wishes to dispose of pursuant to such Underwritten
Offering.
(ii) If the proposed public offering as to which notice is given by
the Company pursuant to Section 1(b)(i) is other than an Underwritten Offering,
the Company shall use its reasonable best efforts to register the Registrable
Securities requested to be included in its Registration Statement and, in
connection therewith, to prepare and make available a Prospectus meeting the
requirements of Section 10(a) of the Securities Act for such period as may be
required by the Securities Act.
(iii) At any time prior to the time that a Registration Statement as
to which notice has been given by the Company pursuant to Section 1(b) has been
filed by the Company or, if filed, has been declared effective, the Company may
determine not to file, or may withdraw, such Registration Statement, in either
of which events the Company shall have no
3
obligation pursuant to this Section 1(b) to register any Registrable Securities
in connection with such proposed Registration Statement.
(c) Underwritten Offerings. If the proposed method of disposition of
Registrable Securities as to which notice is given by the holders of Registrable
Securities under, as applicable, either Sections 1(a)(i) and 1(a)(iii),
collectively, or Sections 1(a)(ii) and 1(a)(iii), collectively, or the proposed
public offering as to which notice is given by the Company pursuant to Section
1(b)(i) is to be an Underwritten Offering:
(i) the Company shall request the underwriter(s) participating in such
offering to purchase and sell all Registrable Securities the disposition of
which pursuant to such Underwritten Offering shall have been requested by the
holders thereof in notices given pursuant to Section 1(a)(i), 1(a)(ii),
1(a)(iii) or 1(b)(i), as the case may be;
(ii) (A) each holder of Registrable Securities giving a notice
pursuant to Section 1(a)(i), 1(a)(ii) or 1(a)(iii), as the case may be, agrees
that, by the giving of such notice, if the underwriter(s) desire(s) to purchase
any of the Registrable Securities requested by such holder to be purchased, such
holder shall sell such Registrable Securities to such underwriter(s) pursuant to
an underwriting agreement to be entered into by and among the Company, the
underwriter(s), such holder and any other holders of securities of the Company
participating in such Underwritten Offering, unless, upon written notice to the
Company and the managing underwriter given at least five Business Days prior to
the date that the Registration Statement with respect to such offering is
proposed to become effective (or any later proposed effective date), such holder
withdraws its Registrable Securities from such Underwritten Offering; provided,
that, if the holders of Registrable Securities constituting a majority of such
Registrable Securities covered by a notice pursuant to Section 1(a)(i) or
1(a)(iii) (with respect to a registration requested under Section 1(a)(i))
withdraw the Registrable Securities requested by such holders pursuant to
Section 1(a)(i) or 1(a)(iii) (with respect to a registration requested under
Section 1(a)(i)) to be included in such Underwritten Offering because the
underwriter(s) have advised the Company in writing that the number of
Registrable Securities requested to be included in such registration exceeds the
number of such securities that can be sold in such offering within a price range
acceptable to such holders, then such request for registration shall be
withdrawn as to all holders of Registrable Securities, the number of requests
for registration that may be made pursuant to Section 1(a)(i) shall be increased
by one, and notwithstanding anything to the contrary in this Agreement, all of
the costs incurred by such holders in connection with such registration shall be
paid by the Company; and, provided, further, if any holder of Registrable
Securities requesting registration of such securities pursuant to Section
1(a)(i), 1(a)(ii) or 1(a)(iii) withdraws its request for registration for any
reason that is not based on such advice from the underwriter(s), then,
notwithstanding anything to the contrary in this Agreement, any expenses
incident to the Company's preparation in accordance with this Agreement for the
registration of such Registrable Securities so withdrawn shall be borne entirely
by the holders of such Registrable
4
Securities, pro rata among such holders requesting such withdrawal, in the
proportion that the number of Registrable Securities requested by each such
holder to be included in such Underwritten Offering and so withdrawn bears to
the total number of Registrable Securities requested to be included in such
Underwritten Offering and so withdrawn.
(B) each holder of Registrable Securities giving a notice
pursuant to Section 1(b)(i) agrees that, by the giving of such notice, if the
underwriter(s) desire(s) to purchase any of the Registrable Securities requested
by such holder to be purchased, such holder shall sell such Registrable
Securities to such underwriter(s) pursuant to an underwriting agreement to be
entered into by and among the Company, the underwriter(s), such holder and any
other holders of securities of the Company participating in such Underwritten
Offering, unless, upon written notice to the Company and the managing
underwriter given at least five Business Days prior to the date that the
Registration Statement with respect to such offering is proposed to become
effective (or any later proposed effective date), such holder withdraws its
Registrable Securities from such Underwritten Offering.
(iii) if the underwriter(s) elect(s) to purchase less than all
securities (including Registrable Securities) which it is requested to purchase
in connection with such offering (or if, in the judgment of the Company, on the
written advice of such underwriter(s), the inclusion of all such securities in
such Underwritten Offering would adversely affect the proposed public offering
by and for the account of the Company), the Company shall use its reasonable
best efforts to cause purchases, if any, by such underwriter(s), (A) if such
Underwritten Offering is the result of a request for registration pursuant to
Section 1(a)(i) or 1(b)(i)(B), first, of securities to be offered for the
account of holders of Registrable Securities and IronBrand, to be made pro rata
according to the number of securities requested by each such holder and
IronBrand to be included in the Underwritten Offering, second, of securities to
be offered for the account of the Company, and third, of securities to be
offered for the account of Persons other than (1) the Company, (2) IronBrand and
(3) the holders of Registrable Securities, to be made pro rata according to the
number of securities requested by such other Persons to be included in the
Underwritten Offering and (B) if such Underwritten Offering is the result of a
request for registration pursuant to Section 1(a)(ii) or 1(b)(i)(A), first, of
securities to be offered for the account of the Company, second, of securities
to be offered for the account of holders of Registrable Securities and
IronBrand, to be made pro rata according to the number of securities requested
by each such holder and IronBrand to be included in the Underwritten Offering,
and third, of securities to be offered for the account of Persons other than (1)
the Company, (2) IronBrand and (3) the holders of Registrable Securities, to be
made pro rata according to the number of securities requested by such other
Persons to be included in the Underwritten Offering.
(iv) if (A) pursuant to Section 1(c)(iii), any of the Registrable
Securities requested by holders of Registrable Securities to be disposed of
pursuant to any Underwritten Offering shall not have been purchased by the
underwriter(s) thereunder and (B) the
5
Underwritten Offering is the result of a request for registration pursuant to
Section 1(a)(i), then the number of permissible requests for registration that
may be made pursuant to such Section 1(a)(i) shall be increased by one.
(d) Restrictions on Public Sale by Holder. Each holder whose Registrable
Securities are covered by a Registration Statement filed pursuant to this
Section 1 agrees, upon the request of the underwriter(s) in any Underwritten
Offering permitted pursuant to Section 8, not to effect any public sale or
distribution of securities of the Company of the same class as the securities,
or any security convertible into or exchangeable or exercisable for such
securities, included in such Registration Statement, including a sale pursuant
to Rule 144 under the Securities Act (except as part of such registration),
during the 10-day period prior to, and during the 90-day period (or such longer
period, not exceeding 180 days, as is required by the underwriter(s)) beginning
on, the closing date of any such Underwritten Offering made pursuant to such
Registration Statement, to the extent timely notified in writing by the Company
or such underwriter(s); provided, that all other Persons selling securities in
such Underwritten Offering and all officers and directors of the Company shall
enter into agreements providing for the same restriction on a public sale as
described herein.
The foregoing provisions shall not apply to any holder of Registrable
Securities if such holder is prevented by applicable statute, regulation or
preexisting contractual or fiduciary duty from entering into any such agreement.
(e) Restrictions on Sale of Securities by the Company. The Company agrees
not to effect any public or private offer, sale or distribution of its equity
securities or any security convertible into or exchangeable or exercisable for
such equity security, including a sale pursuant to Regulation D under the
Securities Act, during the 10-day period prior to, and during the 90-day period
(or such longer period, not exceeding 180 days, as is required by the
underwriter(s)) beginning on, the closing date of each Underwritten Offering
permitted pursuant to Section 8, to the extent timely and reasonably so
requested in writing by the underwriter(s) (except as part of such registration,
if permitted, or pursuant to registrations on Form S-4 or S-8 or any successor
forms to such Forms or pursuant to an issuance of equity securities of the
Company where such equity securities are exempted from the Securities Act
pursuant to Section 3(a)(10) thereof).
(f) Amendments. Upon the occurrence of any event that would cause any
Registration Statement (i) to contain a material misstatement or omission or
(ii) not to be effective and usable for resale of Registrable Securities during
the period that such Registration Statement is required to be effective and
usable, the Company shall promptly file an amendment to the Registration
Statement, in the case of clause (i), correcting any such misstatement or
omission, and in the case of either clause (i) or (ii), using its reasonable
best efforts to cause such amendment to be declared effective and such
Registration Statement to become usable as soon as practicable thereafter.
6
2. Registration Procedures.
In connection with any Registration Statement and subject to the provisions
of Section 1 the Company shall use its reasonable best efforts to effect such
registration to permit the sale of the Registrable Securities being sold in
accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Company shall as expeditiously as possible:
(a) prepare and file with the Commission a Registration Statement relating
to the registration on any appropriate form under the Securities Act, which form
shall be available for the sale of the Registrable Securities being sold in
accordance with the intended method or methods of distribution thereof and shall
include all financial statements required by the Commission to be filed
therewith (including, if required by the Securities Act or any regulation
thereunder, financial statements of any Subsidiary of the Company which shall
have guaranteed any indebtedness of the Company), cooperate and assist in any
filings required to be made with the NASD and use its reasonable best efforts to
cause such Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable the selling
holders to consummate the disposition of such Registrable Securities; provided,
that before filing a Registration Statement or any Prospectus, or any amendments
or supplements thereto, the Company shall (i) furnish to the holders of the
Registrable Securities and the underwriter(s), if any, copies of all such
documents proposed to be filed, which documents shall be subject to the review
of such holders and (ii) make the Company's representative available for
discussion of such documents; and provided, further, that in connection with any
registration of Registrable Securities pursuant to Section 1(a), the Company
shall not file any Registration Statement or amendment thereto or any Prospectus
or any supplement thereto to which the holders of a majority of Registrable
Securities covered by such Registration Statement or the underwriter(s), if any,
shall reasonably object within 10 Business Days after the receipt thereof; and
provided, further, that in connection with any registration pursuant to Section
1(b)(i), if the holders of a majority of Registrable Securities covered by a
Registration Statement in connection therewith reasonably object within 10
Business Days after the receipt of such Registration Statement or amendment
thereto or any Prospectus or any supplement thereto, the Company shall provide
written notice not more than five Business Days after the end of the 10
Business-Day period referred to above to such holders as to whether or not the
Company plans on filing such document, notwithstanding such objection (which
such notice shall bind the Company), and if the Company notifies such holders
that it plans on filing such document, any holder of Registrable Securities to
be registered under such Registration Statement may withdraw its Registrable
Securities from such Registration Statement and the offering in connection
therewith and, if such holder makes such a withdrawal, it shall have no further
obligations in connection with such Registration Statement or offering. For
purposes of the preceding provisos, an objection made by a holder of the
Registrable Securities or an underwriter, if any, shall be deemed to be
reasonable if, including without limitation, the Registration Statement,
amendment, Prospectus or
7
supplement, as applicable, as filed or proposed to be filed, contains, in the
reasonable judgment of the holder of Registrable Securities or underwriter, a
material misstatement or omission;
(b) prepare and file with the Commission such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable period set forth in Section
1, or such shorter period which will terminate when all Registrable Securities
covered by such Registration Statement have been sold;
(c) if requested by the holders of a majority of the Registrable Securities
being sold in an Underwritten Offering permitted by Section 7 or the
underwriter(s) thereof, promptly incorporate in a Prospectus, Prospectus
supplement or post-effective amendment such information as such underwriter(s)
and the holders of a majority of the Registrable Securities being sold agree
should be included therein relating to the plan of distribution of the
Registrable Securities, including, without limitation, information with respect
to the number of Registrable Securities being sold to such underwriter(s), the
purchase price being paid therefor and with respect to any other terms of the
offering of the Registrable Securities to be sold in such offering; and make any
required filings of such Prospectus, Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the matters to
be incorporated in such Prospectus, Prospectus supplement or post-effective
amendment;
(d) advise the underwriter(s), if any, and holders of the Registrable
Securities promptly and, if requested by such Persons, confirm such advice in
writing:
(i) when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to the Registration Statement or any
post-effective amendment thereto, when the same has become effective;
(ii) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information relating thereto;
(iii) if at any time the representations and warranties of the Company
contemplated by clause (l)(i) below cease to be true and correct;
(iv) if the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference therein contains
any untrue statement of a material fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances in
which they were made, not misleading; and
8
(v) of the issuance by the Commission of any stop order or other order
suspending the effectiveness of the Registration Statement, or any order issued
by any state securities commission or other regulatory authority suspending the
qualification or exemption from qualification of such Registrable Securities
under state securities or "blue sky" laws. If at any time the Company shall
receive any such stop order suspending the effectiveness of the Registration
Statement, or any such order from a state securities commission or other
regulatory authority, the Company shall use its reasonable best efforts to
obtain the withdrawal or lifting of such order at the earliest possible time.
(e) furnish to each holder of the Registrable Securities and each of the
underwriter(s), if any, without charge, at least one complete conformed copy of
the Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference therein and
all exhibits (including exhibits incorporated therein by reference);
(f) deliver to each holder of the Registrable Securities and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such Persons may reasonably request; the Company consents to the use of the
Prospectus and any amendment or supplement thereto by each of the holders of the
Registrable Securities and each of the underwriter(s), if any, in connection
with the offering and the sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto;
(g) prior to any public offering of Registrable Securities, cooperate with
the holders of the Registrable Securities, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification of the
Registrable Securities under the securities or "blue sky" laws of such
jurisdictions as the holders of the Registrable Securities or underwriter(s) may
reasonably request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the Registration Statement, except that the Company shall
not for any such purpose be required to (i) qualify generally to do business as
a foreign corporation in any jurisdiction wherein it would not, but for the
requirements of this clause (g), be obligated to so qualify or to consent to any
general service of process in any such jurisdiction or (ii) subject itself to
taxation in respect of doing business in any jurisdiction in which it would not
otherwise be so subject;
(h) cooperate with the holders of the Registrable Securities and the
underwriter(s), if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold without bearing any
restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as such holders or the
underwriter(s), if any, may request;
9
(i) use its reasonable best efforts to cause the Registrable Securities
covered by the Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriter(s), if any, to consummate the
disposition of such Registrable Securities;
(j) if any fact or event contemplated by clause (d)(iv) above shall exist
or have occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Registrable Securities, the Prospectus will not
contain any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
in which they were made, not misleading;
(k) provide a transfer agent and registrar (which may include the Company)
and CUSIP number for all Registrable Securities not later than the effective
date of the Registration Statement;
(l) enter into such agreements (including an underwriting agreement) and
take all such other actions in connection therewith as may be reasonably
required in order to expedite or facilitate the disposition of the Registrable
Securities pursuant to the Registration Statement, and in connection with any
such underwriting agreement entered into by the Company:
(i) make such representations and warranties to the holders of the
Registrable Securities and the underwriter(s), in form, substance and scope as
are customarily made by issuers to underwriters in primary underwritten
offerings;
(ii) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the underwriter(s) and the holders of the Registrable Securities
being sold), addressed to the underwriter(s) covering the matters customarily
covered in opinions requested in underwritten offerings and such other matters
as may reasonably be requested by such holders and underwriters; and use its
reasonable best efforts to have such opinions addressed to each such selling
holder;
(iii) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants, addressed to the
underwriters, such letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters by underwriters in connection
with primary underwritten offerings; and use its reasonable best efforts to have
such letters and updates addressed to each selling holder of Registrable
Securities;
10
(iv) set forth in full or incorporate by reference in the underwriting
agreement the indemnification provisions and procedures of Section 4 with
respect to all parties to be indemnified pursuant to said Section; and
(v) deliver such documents and certificates as may be reasonably
requested by the holders of the Registrable Securities being sold or the
underwriter(s) of such Underwritten Offering to evidence compliance with
subclause (i) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company pursuant
to this clause (l).
The above shall be done at each closing under such underwriting or
similar agreement, as and to the extent required thereunder;
(m) make available for inspection by a representative of the selling
holders of the Registrable Securities, any underwriter participating in any
disposition pursuant to the Registration Statement, and any attorney, accountant
or other professional retained by such holders or any of the underwriters,
subject to reasonable notice and during regular business hours, all financial
and other records, pertinent corporate documents and properties of the Company,
provided, that all expenses incurred by any party requesting such access shall
be paid by such party, and cause the Company's officers, directors and employees
to supply all information reasonably requested by any such holder, underwriter,
attorney, accountant or other professional in connection with such Registration
Statement subsequent to the filing thereof and prior to its effectiveness,
except that the aforementioned advisors may be required to sign a reasonably
acceptable confidentiality agreement;
(n) otherwise use its reasonable best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to the
holders of the Registrable Securities, as soon as practicable, a consolidated
earnings statement (which need not be audited) for the 12-month period (A)
commencing at the end of any fiscal quarter in which Registrable Securities are
sold to underwriters in a firm or best efforts Underwritten Offering or (B) if
not sold to underwriters in such an offering, beginning with the first month of
the Company's first fiscal quarter commencing after the effective date of the
Registration Statement; provided, however, that such reporting obligations shall
be in addition to and not in place of the obligations imposed on the Company by
Section 5 of the Note Purchase Agreements;
(o) use its reasonable best efforts to cause all Registrable Securities to
be listed on each securities exchange, if any, on which equity securities issued
by the Company are then listed; and
(p) use its reasonable best efforts to take all other steps necessary to
effect the registration of the Registrable Securities contemplated hereby.
11
The Company may require each holder of Registrable Securities as to which
any registration is being effected to furnish the Company such information
regarding such holder and the distribution of such securities as the Company may
from time to time reasonably request in writing and as is required by applicable
laws and regulations.
Each holder of the Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company
pursuant to Section 2(d)(iv), or notice of a stop order or suspension described
in Section 2(d)(v), such holder shall forthwith discontinue disposition of
Registrable Securities and cease to use the Prospectus in use under such
Registration Statement. Each holder of Registrable Securities also agrees that
if in an Underwritten Offering effected pursuant to this Agreement it is
required to deliver a signed opinion of counsel to the underwriter(s) under the
underwriting agreement, it will cause its counsel to address and deliver a copy
of such opinion to the Company. The Company shall, as promptly as practicable,
provide each holder with copies of the supplemented or amended Prospectus
contemplated by Section 2(j), or advise the holders in writing that the use of
the Prospectus may be resumed, and provide each holder with copies of any
additional or supplemental filings which are incorporated by reference in the
Prospectus. If so directed by the Company, each such holder shall deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such holder's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice.
3. Registration Expenses.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement shall be borne by the Company, regardless of whether a
Registration Statement becomes effective, including without limitation:
(i) all registration and filing fees and expenses (including filings
made with the NASD);
(ii) fees and expenses of compliance with federal securities and state
"blue sky" or securities laws;
(iii) expenses of printing (including printing certificates for the
Registrable Securities and Prospectuses), messenger and delivery services and
telephone;
(iv) fees and disbursements of counsel for the Company and one
counsel, and one local counsel for each local jurisdiction where it is
reasonably necessary, for the holders of the Registrable Securities selling such
securities pursuant to a Registration Statement (subject to the provisions of
Section 3(b));
12
(v) all application and filing fees in connection with listing the
Registrable Securities on a national securities exchange or automated quotation
system pursuant to the requirements hereof;
(vi) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special audit and
"cold comfort" letters required by or incident to such performance);
(vii) any reasonable out-of-pocket expenses of the holders of the
Registrable Securities (or the agents and fiduciaries who manage their
accounts); and
(viii) such other reasonable and customary expenses as may be at such
time (A) associated with underwritten offerings and (B) customarily borne by the
issuer, which such reasonable and customary expenses shall not be deemed to
include any underwriter discounts, commissions or applicable transfer taxes
attributable to the sale of Registrable Securities.
The Company shall, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, rating
agency fees and the fees and expenses of any Person, including special experts,
retained by the Company.
(b) In connection with any Registration Statement, the Company shall
reimburse the holders of the Registrable Securities for the reasonable fees and
disbursements of not more than one counsel chosen by the holders of a majority
of the Registrable Securities covered by such Registration Statement and of all
local counsel that is reasonably necessary. Notwithstanding the provisions of
this Section 3, each holder shall pay registration expenses if and to the extent
required by applicable law.
4. Indemnification.
(a) The Company agrees to indemnify and hold harmless each holder of the
Registrable Securities and each Person, if any, who controls such holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages, liabilities and
expenses (including, without limiting the foregoing but subject to Section 4(c),
the reasonable legal and other expenses incurred in connection with any action,
suit or proceeding or any claim asserted) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except to the extent that such
losses, claims, damages,
13
liabilities or expenses are the result of an untrue statement or omission
contained in information relating to such holder, furnished in writing to the
Company by or on behalf of such holder expressly for use therein. In connection
with any Underwritten Offering permitted by Section 8, the Company shall also
indemnify underwriters, if any, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers and directors and each Person who controls such Persons (within the
meaning of the Securities Act and the Exchange Act) to the same extent as
provided above with respect to the indemnification of the holders, if requested
in connection with any Registration Statement.
(b) As a condition to the inclusion of its Registrable Securities in any
Registration Statement pursuant to this Agreement, each holder thereof shall
furnish to the Company in writing, promptly after receipt of a request therefor,
such information as the Company may reasonably request for use in connection
with any Registration Statement, Prospectus or preliminary prospectus and each
such holder agrees to indemnify and hold harmless, severally and not jointly,
the Company and its directors, its officers who sign such Registration
Statement, and any Person controlling the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent as
the indemnity from the Company to each holder and Persons controlling such
holder, but only with reference to information relating specifically to such
holder furnished in writing by or on behalf of such holder expressly for use in
such Registration Statement or the Prospectus or any preliminary prospectus
included therein, and of which none of the Company, its directors or officers
has actual knowledge independent of such holder; provided, however, that such
holder of Registrable Securities shall not be liable in any such case to the
extent that the holder has furnished in writing to the Company reasonably in
advance of the filing of any such Registration Statement, Prospectus or
preliminary prospectus information with the Commission expressly for use in such
Registration Statement, Prospectus or preliminary prospectus which corrected or
made not misleading information previously furnished to the Company, and the
Company failed to include such information therein. In case any action shall be
brought against the Company, any of its directors, any such officer, or any such
controlling Person based on the Registration Statement, the Prospectus or any
preliminary prospectus and in respect of which indemnity may be sought against
one or more of the holders, such holders shall have the rights and duties given
to the Company by Section 4(c) (except that if the Company as provided in
Section 4(c) shall have assumed the defense thereof such holders shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof but all the fees and expenses of such counsel shall be at
such holder's expense and not at the expense of the Company) and the Company and
its directors, any such officers, and any such controlling Person shall have the
rights and duties given to the holders by Section 4(c). In no event shall the
liability of any selling holder hereunder be greater than the net proceeds
(i.e., proceeds net of underwriting discounts, fees, commissions and any other
expenses payable by such selling holder) received by such holder upon the sale
of the Registrable Securities giving rise to such indemnification obligation.
14
(c) In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought against any current or
former holder of the Registrable Securities or any Person controlling such
holder, with respect to which indemnity may be sought against the Company
pursuant to Section 4(a), such holder or such Person controlling such holder
shall promptly notify the Company in writing and the Company shall assume the
defense thereof, including the employment of counsel reasonably satisfactory to
such holder and payment of all fees and expenses relating thereto. Such holder
and such Persons controlling such holder shall have the right to employ separate
counsel in any such action or proceeding and participate in the defense thereof,
but all the fees and expenses of such counsel shall be at such holder's expense
and not at the expense of the Company unless (i) the employment of such counsel
has been specifically authorized in writing by the Company, which authorization
shall not be unreasonably withheld, (ii) the Company has not assumed the defense
and employed counsel reasonably satisfactory to such holder within 15 days after
written notice of any such action or proceeding, or (iii) the named parties to
any such action or proceeding (including any impleaded parties) include both
such holder or any Person controlling such holder and the Company and such
holder or any Person controlling such holder shall have been advised by such
counsel that there may be one or more legal defenses available to such holder or
Person controlling such holder that are different from or additional to those
available to the Company and, in the reasonable opinion of such counsel, could
not be asserted by the Company's counsel without creating a conflict of interest
(in which case the Company shall not have the right to assume the defense of
such action or proceeding on behalf of such holder or controlling Person, it
being understood, however, that the Company shall not, in connection with any
one such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to all local counsel which is necessary, in the good
faith opinion of both counsel for the indemnifying party and counsel for the
indemnified party in order to adequately represent the indemnified parties) for
all such holders and controlling Persons, which firm shall be designated in
writing by the holders of a majority of the Registrable Securities currently or
formerly held by such holders and that all such reasonable fees and expenses
shall be reimbursed as they are incurred upon written request and presentation
of invoices). The Company shall not be liable for any settlement of any such
action effected without the written consent of the Company (which consent shall
not be unreasonably withheld), but if settled with the written consent of the
Company or if there is a final judgment for the plaintiff, the Company agrees to
indemnify and hold harmless such holder and all Persons controlling such holder
from and against any loss or liability by reason of such settlement or judgment.
The Company shall not, without the prior written consent of the holder, effect
any settlement of any pending or threatened proceeding in respect of which any
holder or any Person controlling such holder is a party and indemnity has been
sought hereunder by such holder or any Person controlling such holder unless
such settlement includes an unconditional release of such holder or such
controlling Person from all liability on claims that are the subject matter of
such proceeding.
15
(d) If the indemnification provided for in this Section 4 is unavailable to
an indemnified party under paragraphs (a), (b) or (c) hereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the holders of the Registrable Securities on the other hand
from the original sale by the Company of the Registrable Securities, or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and such holders on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and such holders on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company on the one hand or
by such holders on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or expenses shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim.
(e) The Company and the holders of the Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this Section 4 were
determined by a pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in subsection
(d) above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to in subsection (d)
above shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding any other provision of this Agreement, no holder of
the Registrable Securities shall be required to contribute an amount greater
than the net proceeds received by such holder with respect to the sale of
Registrable Securities giving rise to any indemnification or contribution
obligation under this Section 4. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
5. Rule 144A. The Company hereby agrees with each holder of the Registrable
Securities for so long as any of the Deferred Additional Interest Notes or
Registrable Securities remain outstanding and during any period in which the
Company is not subject to Section 13
16
or 15(d) of the Exchange Act, to make available to any Purchaser or beneficial
owner of Deferred Additional Interest Notes or Registrable Securities in
connection with any sale thereof and any prospective purchaser of such Deferred
Additional Interest Notes or Registrable Securities from such Purchaser or
beneficial owner, the information required by Rule 144A(d)(4) under the
Securities Act.
6. Rule 144. After the earliest of (i) the closing date of the sale of
securities of the Company pursuant to a Registration Statement, (ii) the
registration by the Company of a class of securities under Section 12 of the
Exchange Act or (iii) the issuance by the Company of an offering circular
pursuant to Regulation A under the Securities Act, the Company agrees with each
holder of Registrable Securities to:
(a) comply with the requirements of Rule 144(c) under the Securities Act
with respect to current public information about the Company;
(b) use its reasonable best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time it has become subject to such
reporting requirements); and
(c) furnish to any holder of Registrable Securities upon request (i) a
written statement by the Company as to its compliance with the requirements of
said Rule 144(c) and the reporting requirements of the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), (ii) a copy of the most recent annual or quarterly report of the
Company, and (iii) such other reports and documents of the Company as such
holder may reasonably request to avail itself of any similar rule or regulation
of the Commission allowing it to sell any such securities without registration.
7. Participation In Underwritten Offerings. No holder of the Registrable
Securities may participate in any Underwritten Offering hereunder unless such
holder (a) agrees to sell such holder's Registrable Securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements; provided, that no holder of Registrable Securities included in any
Underwritten Offering shall be required to make any representations or
warranties to the Company or the underwriter(s) other than representations and
warranties regarding such holder and such holder's intended method of
distribution.
8. Selection of Underwriters.
(a) Demand Registration.
17
(i) In any Underwritten Offering of Registrable Securities covered by
a Registration Statement under Section 1(a)(i), the investment banker(s) and
manager(s) that will administer the offering shall be selected by the holders of
a majority of the Registrable Securities with respect to which the request for
registration was made under Sections 1(a)(i) and 1(a)(iii), collectively;
provided, that such investment banker(s) and manager(s) must be of national
stature and reasonably acceptable to the Company.
(ii) In any Underwritten Offering of Registrable Securities covered by
a Registration Statement under Section 1(a)(ii), the investment banker(s) and
manager(s) that will administer the offering shall be selected by the Company;
provided, that such investment banker(s) and manager(s) must be acceptable to
the holders of a majority of the Registrable Securities with respect to which
the request for registration was made under Sections 1(a)(ii) and 1(a)(iii),
collectively.
(b) Incidental Registration. In any Underwritten Offering of Registrable
Securities covered by a Registration Statement under Section 1(b), the
investment banker(s) and manager(s) that will administer the offering shall be
selected by the Company.
9. Interpretation of Agreement; Definitions.
(a) Definitions. Capitalized terms used and not defined herein but defined
in the Note Purchase Agreements shall have the meanings given to such terms in
the Note Purchase Agreements. Unless the context otherwise requires, the terms
hereinafter set forth when used herein shall have the following meanings and the
following definitions shall be equally applicable to both the singular and
plural forms of any of the terms herein defined.
"Agreement" means this Registration Rights Agreement and all Schedules
hereto.
"Closing Date" means August 6, 1996.
"Commission" means the Securities and Exchange Commission as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Exchange Act, then the Person performing
such duties at such time.
"Company" has the meaning assigned in the first paragraph of this
Agreement.
"Deferred Additional Interest Notes" means the Company's Deferred
Additional Interest Notes issued pursuant to the Note Purchase Agreements.
"Equity Interest" means any partnership interests, shares of stock, limited
liability company interests or membership interests or other equity interests in
the Company.
18
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Initial Public Offering" means the first Public Offering.
"Investors" means, collectively, the Persons listed on Schedule I, and any
successors or permitted assignees of any of their rights hereunder that hold
Registrable Securities.
"IronBrand" means IronBrand Capital, LLC, a North Carolina limited
liability company, and any successors or permitted assignees of any of its
rights under the Partnership Agreement.
"Material Adverse Effect" means a material adverse effect on the business,
assets, operations, prospects, liabilities or condition (financial or otherwise)
of the Company and its Subsidiaries, taken as a whole.
"NASD" means National Association of Securities Dealers, Inc.
"New York Trust" means the Multi-Market Special Investment Trust Fund of
Xxxxxx Guaranty Trust Company of New York, or any successor or assignee thereof
with respect to the Deferred Additional Interest Notes.
"Note Purchase Agreements" means the agreements, dated as of August 9,
1996, between the Company and the purchasers of its Senior Subordinated Notes
and Deferred Additional Interest Notes.
"Partnership Agreement" means the Second Amended and Restated Agreement of
Limited Partnership of National Auto Finance Company L.P. dated as of September
1, 1995.
"Person" means an individual, partnership, corporation, trust or
unincorporated organization, and a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
"Public Offering" means a public offering of the Company's equity
securities pursuant to an effective Registration Statement filed by the Company
with the Commission.
"Qualified Public Offering" means a Public Offering as a result of which
Offering the Company has at least 100 "beneficial owners" of its equity
securities who are "independent" of the Company. For purposes hereof,
"beneficial owners" has the meaning
19
assigned to such term in Rule 13d-3 under the Exchange Act. For purposes hereof,
"independent" means any Person who or which is not (i) an officer, director or
employee of the Company or any Subsidiary of the Company, (ii) a Subsidiary of
the Company or (iii) a Person whose investment decision in connection with the
purchase by such Person of the Company's equity securities pursuant to such
Public Offering was not controlled by the Company.
"Registrable Equity Interests" means units of Equity Interests issued or
issuable upon exchange of the Deferred Additional Interest Notes in accordance
with the terms of the Note Purchase Agreements.
"Registrable Securities" means each Registrable Equity Interest until it
has been (i) transferred in a public offering registered under the Securities
Act or (ii) transferred in a sale made through a broker, dealer or market-maker
pursuant to Rule 144 or Rule 144A under the Securities Act.
For all purposes of this Agreement, whenever any Person holding Deferred
Additional Interest Notes has the right to acquire Registrable Equity Interests
upon exchange of such Deferred Additional Interest Notes (but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such exchange has actually been effected, such Person shall be deemed to be a
holder of such number of Registrable Securities as such Person would hold upon
such exchange, at the relevant time.
"Registration Statement" means a registration statement of the Company,
filed with the Commission on an appropriate form, including any registration
statement filed pursuant to the provisions of this Agreement, including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
"Securities Act" means the Securities Act of 1933, as amended.
"Side Arrangement" has the meaning assigned in Section 10(c).
"Xxxxx Foundation" means The Xxxxxx X. Xxxxx Foundation (Multi-Market
Account), or any successor or assignee thereof with respect to the Deferred
Additional Interest Notes.
"Subsidiary" means any corporation, partnership, joint venture,
association, company, business trust or other entity in which the Company
directly or indirectly (i) beneficially owns or controls, directly or
indirectly, a majority of the outstanding voting securities having by the terms
thereof ordinary voting power to elect a majority of the board of directors (or
other body fulfilling a substantially similar function) of such entity (other
than by reason of the happening of any contingency) or (ii) in the case of an
entity which does not have a board of directors (or
20
other body fulfilling a substantially similar function) has the authority to
control the policies of such entity (including any partnership or joint venture
of or in which the Company or a Subsidiary is a general partner or joint venture
participant or owns or has the right to obtain a majority of limited partnership
interests).
"Underwritten Offering" means a Public Offering in which securities of the
Company are sold to an underwriter for reoffering to the public.
(b) Accounting Principles. Where the character or amount of any asset or
liability or item of income or expense is required to be determined or any
consolidation or other accounting computation is required to be made for the
purposes of this Agreement, the same shall be done in accordance with the
generally accepted accounting principles in effect from time to time, to the
extent applicable, except where such principles are inconsistent with the
express requirements of this Agreement including without limitation the
definitions set out in Section 9.
(c) Directly or Indirectly. Where any provision in this Agreement refers to
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether the action in question is
taken directly or indirectly by such Person.
10. Miscellaneous.
(a) Remedies. Each holder of the Registrable Securities, in addition to
being entitled to exercise all rights provided herein, and granted by law,
including recovery of damages, shall be entitled to specific performance of its
rights under this Agreement. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company shall not, on or after the date
of this Agreement, enter into any agreement with respect to its securities that
is inconsistent with the rights granted to such holders of the Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
Except for the agreement with IronBrand set forth in Article VI of the
Partnership Agreement, the rights granted to the holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any other agreements.
(c) Comparable Agreements. Except for the agreement with IronBrand set
forth in Article VI of the Partnership Agreement, the Company hereby represents
and warrants that it has not entered into or agreed to any side letter or
similar arrangement or other agreement with
21
any other holder or prospective holder of any securities of the Company
providing for registration rights with respect to the securities of the Company
that confers rights or benefits more favorable than the rights and benefits
conferred upon the holders of the Registrable Securities hereunder (such a
letter, arrangement or agreement, whether or not it confers such more favorable
rights or benefits, a "Side Arrangement"). The Company shall not enter into or
amend any Side Arrangement unless, in each case, each of the holders of the
Registrable Securities have been notified in writing and been provided with a
copy of such proposed Side Arrangement or amendment at least 20 Business Days
prior to the effective date of such Side Arrangement or amendment and have been
given the opportunity to receive the rights and benefits in such Side
Arrangement or amendment as of the date of such Side Arrangement or amendment.
(d) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
without the written consent of the Company and each of the Investors.
(e) Notices. All notices, demands and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery. Such notices, demands and other communications will be sent to any
Investor at the address indicated on Schedule I, to any other holder of
Registrable Securities at such holder's address of record appearing on the
Company's books and to the Company at the address indicated below:
National Auto Finance Company L.P.
c/o National Auto Finance Corporation, General Partner
000 XX 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telecopier: 000-000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party. All
such notices, demands and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; upon receipt, if
mailed postage prepaid; when answered back, if telexed; when receipt is
acknowledged, if telecopied; or at the time delivered, if delivered by an air
courier guaranteeing overnight delivery.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties,
including without limitation and without the need for an express assignment,
Affiliates of the Investors. In addition, whether or not any express assignment
has been made, the provisions of this
22
Agreement which are for the benefit of purchasers or holders of Registrable
Securities are also for the benefit of, and enforceable by, any subsequent
holder of Registrable Securities.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Governing Law. THE LAWS OF THE STATE OF DELAWARE SHALL GOVERN ALL
ISSUES AND QUESTIONS CONCERNING THE RELATIVE RIGHTS AND OBLIGATIONS OF THE
COMPANY AND ITS SECURITY HOLDERS. ALL OTHER ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT AND THE
EXHIBITS AND SCHEDULES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAWS PRINCIPLES THEREOF, EXCEPT SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
(i) Severability. Should any part of this Agreement for any reason be
declared invalid, such decision shall not affect the validity of any remaining
portion, which remaining portion shall remain in force and effect as if this
Agreement had been executed with the invalid portion thereof eliminated and it
is hereby declared the intention of the parties hereto that they would have
executed the remaining portion of this Agreement without including therein any
such part, parts, or portion which may, for any reason, be hereafter declared
invalid.
(j) Submission to Jurisdiction. THE COMPANY HEREBY CONSENTS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW
YORK, STATE OF NEW YORK, WITH RESPECT TO ALL ACTIONS OR PROCEEDINGS RELATING TO
THIS AGREEMENT, AND THE COMPANY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED ON
IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING IN ANY
SUCH COURT AND WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT, AND
CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY MAIL OR MESSENGER DIRECTED
TO IT AT THE ADDRESS OF THE COMPANY SET FORTH IN SECTION 10(e) ABOVE, AND THAT
SERVICE SO MADE, SHALL BE DEEMED TO BE COMPLETED UPON THE EARLIER OF ACTUAL
RECEIPT AND FIVE BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN POSTED TO THE
COMPANY'S ADDRESS, AS THE CASE MAY BE, IN ACCORDANCE HEREWITH. THE COMPANY
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON
23
THE JUDGMENT (IF SUCH A PROCEDURE IS AVAILABLE UNDER APPLICABLE LAW) OR IN ANY
OTHER MANNER PROVIDED BY LAW. NOTHING CONTAINED IN THIS SECTION SHALL AFFECT THE
RIGHT OF ANY INVESTOR TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO BRING ANY ACTION OR PROCEEDING IN THE COURTS OF ANY JURISDICTION
AGAINST THE COMPANY OR TO ENFORCE A JUDGMENT OBTAINED IN THE COURTS OF ANY OTHER
JURISDICTION.
(k) Captions. The descriptive headings of the various Sections or parts of
this Agreement are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
(l) Waiver of Jury Trial. EACH OF THE COMPANY AND THE INVESTORS WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER THIS AGREEMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS
AGREEMENT, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY.
(m) Effectiveness of Agreement. This Agreement shall become effective upon
execution by the Company and delivery hereof by the Company to at least one
Investor and the execution by such Investor and delivery hereof by such Investor
to the Company, notwithstanding the fact that any other potential Investors
listed in Schedule I have not so executed and delivered this Agreement.
(n) Final Agreement. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF.
24
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement,
or caused this Agreement to be duly executed on its behalf, as of the date first
written above.
NATIONAL AUTO FINANCE COMPANY L.P.
By: _____________________________
Name:
Title:
[Signatures of Investors are contained in Schedule I.]
