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Exhibit 10.26
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT ("AGREEMENT") is dated effective as of
March 15, 2000, by and among STANWICH FINANCIAL SERVICES CORP., a Rhode Island
corporation ("SUBORDINATE CREDITOR"), NAB ASSET CORPORATION, a Texas corporation
(the "COMPANY"), and BANK UNITED, a federally chartered savings bank, as agent
("SENIOR Creditor").
RECITALS:
a. The Debtor is indebted to the Subordinate Creditor under a certain
Promissory Note issued March 15, 2000, but effective March 7, 2000 in the
principal amount of $4,000,000 (the "SUBORDINATED NOTE").
b. The Company has certain contingent obligations to the Senior
Creditor under a certain Guaranty dated June 15, 1999 issued by the Company in
favor of the Senior Creditor (the "GUARANTY"). Under the Guaranty, the Company
guarantied the payment of the obligations of its subsidiary, Mortgage Portfolio
Services, Inc. ("MPS"), to the Senior Creditor under that certain CREDIT
AGREEMENT dated June 15, 1999 between MPS and the Senior Creditor (the "CREDIT
AGREEMENT").
c. Section 6.09 of the Credit Agreement requires that the Company, as
guarantor, maintain a consolidated net worth of not less than $5,000,000.
d. Since September 30, 1999, the Company's consolidated net worth has
been less than $5,000,000.
e. The Company and MPS requested the Senior Creditor to amend the
second sentence of Section 6.09 of the Credit Agreement to read as follows: "As
of the end of each Fiscal Quarter, Guarantor's Consolidated Net Worth plus
Subordinated Debt, if any, shall not be less than Five Million Dollars
($5,000,000)." The Senior Creditor agreed to such amendment provided that the
parties enter into this Agreement.
In consideration of the premises and the mutual agreements herein set
forth, Company, Subordinate Creditor and Senior Creditor hereby agree as
follows:
1. As used in this Agreement, and in addition to the definitions stated
above, the following terms have these meanings:
a. Senior Debt means all debt and obligations now existing or
hereafter arising of Company to Senior Creditor under the Guaranty, whether
direct or indirect, primary or secondary, joint or several, fixed or contingent
and whether originally payable. The Senior Debt shall include amounts accruing
subsequent to the filing of any bankruptcy, receivership, insolvency or like
petition. Without limiting the generality of the foregoing, Senior Debt shall
include all obligations of Company to Senior Credit under the Guaranty for fees,
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to indemnify, to reimburse for expenses and to reimburse for advances (whether
for the payment of taxes, insurance premiums, the preservation or protection of
property or title to property or any other reason).
b. Subordinated Debt means all debt of Company now or
hereafter evidenced by the Subordinated Note.
2. Unless and until this Agreement shall have terminated, or Senior
Creditor shall have specifically consented in writing, Subordinate Creditor will
not, except as otherwise specifically provided in section 22 below, (a) ask,
demand, xxx for, take or receive, or retain, from Company or any other person or
entity, by setoff or in any other manner, payment of all or any part of the
Subordinated Debt, (b) ask for, demand, receive or refuse to release in writing
promptly after Senior Creditor's request any security for the Subordinated Debt,
(c) amend any document existing in connection with the Subordinated Debt, (d)
bring or join with any creditor in bringing any proceeding against Company under
any bankruptcy, reorganization, readjustment or arrangement of debt, suspension
of payments, receivership, liquidation or insolvency or similar law or statute
now or hereafter in effect ("PROCEEDINGS"), or (e) seek, join or assist any
other creditor in seeking to have any of the business or assets of Company
substantively consolidated with any of the business or liabilities of any other
entity in any such proceeding. Subordinate Creditor hereby directs Company to
make, and Company hereby agrees to make, such prior payment of the Senior Debt
to Senior Creditor.
3. (a) Upon any distribution of the assets of Company in connection
with any dissolution, winding up, liquidation or reorganization of Company
(whether in Proceedings or upon an assignment for the benefit of creditors or
any other marshalling of the assets and liabilities of Company or otherwise),
Senior Creditor shall first be entitled to receive payment in full of all Senior
Debt before Subordinate Creditor shall be entitled to receive any payment in
respect of the Subordinated Debt. Upon any such dissolution, winding up,
liquidation or reorganization, any payment or distribution of assets of Company
of any kind or character, whether in cash, property or securities, to which
Subordinate Creditor would be entitled except for the provisions of this
Agreement (including any such payment or distribution which may be payable or
deliverable by virtue of the provisions of any securities which are subordinated
as junior in right of payment to the Subordinated Debt) shall be made by the
liquidating trustee or agent or other persons making such payment or
distribution (whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise) (a "PAYING PARTY"), or if received by Subordinate Creditor,
directly to Senior Creditor, to the extent necessary to pay in full the Senior
Debt remaining unpaid, after giving effect to any concurrent payment or
distribution to Senior Creditor, pursuant to the terms of the Guaranty (in the
case of payments or distributions of Company's assets). Subordinate Creditor
hereby authorizes and directs each Paying Party to pay over to Senior Creditor
upon demand by Senior Creditor, all such payments or distributions without the
necessity of any inquiry as to the status or balance of the Senior Debt, and
without further notice to or consent of Subordinate Creditor. Any such payments
received by the Senior Creditor in excess of the Senior Debt shall be held in
trust for the benefit of Subordinate Creditor and shall promptly be paid over to
Subordinate Creditor by Senior Creditor.
(b) Subordinate Creditor hereby irrevocable authorizes and
empowers Senior Creditor, after default has occurred under the Guaranty, to
demand, xxx for, collect and receive every such payment or distribution and give
acquittance therefor, to execute, sign, endorse, transfer and deliver any and
all receipts and instruments, and to file claims and take such other
proceedings, all in the name of Subordinate Creditor, or
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otherwise, as Senior Creditor may deem necessary or advisable for the
enforcement of this Agreement, but Senior Creditor has no obligation to do so.
Subordinate Creditor hereby (i) agrees duly and promptly to take such action as
may be required by Senior Creditor to collect the Subordinated Debt for the
account of Senior Creditor including filing appropriate proofs of claim in
respect of the Subordinated Debt, (ii) authorizes and empowers Senior Creditor
to vote the full amount of the Subordinated Debt in any bankruptcy,
reorganization or similar proceedings affecting Company and in any meeting of
creditors of Company, (iii) agrees to execute and deliver to senior Creditor or
its representatives on demand such powers of attorney, proofs of claim and other
instruments as may be requested by Senior Creditor or its representatives to
enable Senior Creditor to enforce any and all claims upon or with respect to the
Subordinated Debt, to collect and receive any and all such payments or
distributions which may be payable or deliverable at any time upon or with
respect to the Subordinated Debt and to vote the full amount of the Subordinated
Debt in any proceeding or meeting referred to in clause (ii) of this
subparagraph 3(b).
(c) In the event any payment or distribution of assets of
Company of any kind or character, whether in cash, property or securities, and
whether or not pursuant to any dissolution, winding up, liquidation or
reorganization, not permitted by or in accordance with the provisions of this
Agreement shall be received by Subordinate Creditor, Subordinate Creditor shall
not commingle such payment or distribution to Subordinate Creditor with other
funds and shall hold it in trust for the benefit of, and shall pay it over or
deliver it to, Senior Creditor, or to Senior Creditor's representative, in
precisely the form received (except for the endorsement or assignment of
Subordinate Creditor where required to effect a complete transfer); provided,
that the provisions of this subparagraph 3(c) shall not be applicable to
interest payments which shall have been made to Subordinate Creditor in strict
accordance with the provisions of Section 22 below. In the event Subordinate
Creditor fails to make any such endorsement or assignment, Senior Creditor is
hereby irrevocable authorized to make it and to sign Subordinate Creditor's name
to it as Subordinate Creditor's agent.
(d) Subject to the payment in full of all Senior Debt, the
Subordinate Creditor shall be subrogated to the rights of the holder of the
Senior Debt to receive payments or distributions of cash, property or securities
of the Company applicable to the Senior Debt until all amounts owing on the
Subordinated Debt shall be paid in full, and, as between the Company, its
creditors (other than holders of Senior Debt) and the Subordinate Creditor, no
such payment or distribution made to the holder of the Senior Debt by virtue of
this Section 3, which otherwise would have been made to the Subordinate
Creditor, shall be deemed to be a payment by the Company on account of any
Senior Debt, it being understood that the provisions of this Section 3 are and
are intended solely for the purpose of defining the relative rights of the
Subordinate Creditor, on the one hand, and the holder of Senior Debt, on the
other hand.
(e) The provisions of this Agreement are and are intended
solely for the purpose of defining the relative rights of Subordinate Creditor
and Senior Creditor, and are solely for the benefit of Senior Creditor and may
not be relied upon or enforced by any person or entity other than Senior
Creditor and other present and future holders of the Senior Debt, and nothing
contained in this Agreement is intended to or shall impair the obligation of
Company, which is unconditional and absolute, to pay to Subordinate Creditor the
principal of and interest on the Subordinated Debt as and when the same shall
become due and payable, or to affect the relative rights of Subordinate Creditor
and creditors of Company other than Senior Creditor.
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(f) Senior Creditor may, at any time and from time to time,
without the consent of or notice to Subordinate Creditor, and without impairing
or releasing the obligations of Subordinate Creditor hereunder (i) change the
manner, place or terms of payment or change or extend the time of payment of, or
renew or alter, the Senior Debt or the security therefor, or otherwise amend in
any manner the Credit Agreement, the Guaranty, or any loan documents executed in
connection with or relating to the Senior Debt; (ii) exercise or refrain from
exercising any rights against Company and others; (iii) apply any sums by
whomsoever paid or however realized to the Senior Debt, whether or not then
matured; (iv) sell, exchange, release, surrender, realize upon or otherwise deal
with in any manner and in any order any property whatsoever and by whomsoever at
any time pledged or mortgaged to secure, or howsoever securing, any Senior Debt;
(v) release anyone liable in any manner for the payment or collection of any
Senior Debt; and (vi) settle or compromise all or any part of the Senior Debt,
and subordinate the payment of any part of the Senior Debt to the payment of any
other debt (including any other part of the Senior Debt). No invalidity,
irregularity or unenforceability of all or any part of the Senior Debt or of any
of the Senior Creditor's Liens shall affect, impair or be a defense to this
Agreement.
4. Subordinate Creditor represents and warrants that no liens, security
interests or assignments exist to secure any Subordinated Debt, and agrees that
no liens, security interests or assignments ("SUBORDINATE LIENS") will arise or
will be taken in the future to secure any Subordinated Debt without the specific
written consent of Senior Creditor. Without limiting the foregoing, Subordinate
Creditor hereby agrees until this Agreement is terminated (a) that Subordinate
Creditor will not enforce any Subordinate Liens which may exist from time to
time without the specific prior written consent of Senior Creditor and (b) that
the Subordinate Liens, to the extent enforceable, will be enforceable by Senior
Creditor. All amounts, whether in the form of cash, proceeds, checks, drafts,
orders or other instruments for the payment of money, recovered with respect to
any property of Company subject to the Subordinate Liens by the enforcement of
the Subordinate Liens, shall, immediately upon the receipt by Subordinate
Creditor, be paid over and delivered in the form received, but with any
necessary endorsements or instruments required for payment, to Senior Creditor,
and, until so delivered shall not be commingled with any other funds or property
but shall be held by Subordinate Creditor upon an express trust for the benefit
of Senior Creditor.
5. Subordinate Creditor hereby expressly subordinates and makes second,
junior and inferior any and all liens, rights, powers, titles and interests of
Subordinate Creditor under, pursuant to or by virtue of the Subordinate Liens
(if any) to all liens, rights, titles and interests of Senior Creditor under,
pursuant to or by virtue of the Senior Creditor's Liens, and Subordinate
Creditor agrees that all liens, rights, titles and interests of the Senior
Creditor's Liens shall be unconditionally first, prior and superior to any and
all lines, rights, powers, titles and interests of Subordinate Creditor under,
pursuant to or by virtue of the Subordinate Liens. Subordinate Creditor further
agrees that any and all liens, rights, titles and interests of Subordinate
Creditor under, pursuant to or by virtue of the Subordinate Liens shall be and
remain expressly subject and subordinate to any renewal, extension, refinancing,
consolidation, modification or supplement of the liens, rights, titles and
interests of the Senior Creditor's Liens, as well as any and all increases of
them.
6. Subordinate Creditor, its successors or assigns or any other legal
holder of the Subordinated Debt shall not acquire by subrogation, assignment,
contract or otherwise, any lien upon or other estate, right or interest in any
property (including but not limited to any which may arise in respect to real
estate taxes, assessments or other governmental charges) which is or may be
prior in right or dignity to the Senior Liens or any renewal, extension,
refinancing, consolidation, modification or supplement of them.
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7. Subordinate Creditor represents to Senior Creditor that the
Subordinated Debt is in good standing and in full force and effect and no
breaches or defaults exist under the Subordinated Note which have not been cured
or waived, and that the outstanding principal balance of the Subordinated Debt
on this date is FOUR MILLION DOLLARS ($4,000,000).
8. This Agreement extends to and covers all amounts due on the Senior
Debt both before and after filing of any Proceeding by or against Company, and
Senior Creditor shall be entitled to amounts accruing on the Senior Debt from
the date of filing of any such Proceeding to the date of full and final payment
of the Senior Debt.
9. No part of the Subordinated Debt or any instrument evidencing or
securing it has been heretofore transferred or assigned, and Subordinate
Creditor will not transfer or assign any part of the Subordinated Debt or any
instrument evidencing any part of it while the Senior Debt remains unpaid
without providing written notice of any such transfer or assignment to Senior
Creditor at or before the time of the transfer or assignment, which notice shall
include the name, address, telephone and telecopy numbers of the transferee and
must be accompanied by (a) a true, correct and complete copy of the
instrument(s) of assignment and (b) a statement (which may be made a part of the
assignment) executed by the transferee or assignee of the transferee's or
assignee's express written recognition of this Agreement and agreement to
recognize it, abide by it and honor it in accordance with its terms. No such
assignment or transfer shall be effective unless and until such notice,
assignment copy and transferee's statement have been received by Senior
Creditor. ANY INSTRUMENT NOW OR HEREAFTER EVIDENCING THE SUBORDINATED DEBT WILL
CONTAIN PROVISIONS REFERRING SPECIFICALLY TO THIS AGREEMENT.
10. In the event of a breach by any party to it of any of the
provisions of this Agreement, or in the event any representation or warranty
contained herein or furnished to Senior Creditor by any party to it shall prove
to have been false when made, Senior Creditor shall have all rights provided to
it under law or equity, including, without limitation, the right to xxx the
breaching party or parties to recover damages suffered by Senior Creditor as a
result of such breach, and the right to obtain injunctive relief.
11. Subordinate Creditor shall give, execute and deliver any notice,
statement, instrument, document, agreement or other papers, and shall permit
Senior Creditor, upon request, to make any notation or endorsement upon any
promissory note or other instrument or paper evidencing or securing the
Subordinated Debt, that may be necessary or desirable, or that Senior Creditor
any reasonably request, in order to create, preserve or validate the rights of
Senior Creditor under this Agreement, to enable Senior Creditor to exercise or
enforce its rights under it, or otherwise to effect the purposes of this
Agreement.
12. This Agreement is a continuing one, and all Senior Debt to which it
applies or may apply under its terms shall conclusively be presumed to have been
created in reliance on this Agreement.
13. Company hereby agrees to pay upon demand all attorneys' fees and
expenses reasonably incurred by Senior Creditor in connection with the
enforcement of its rights under this Agreement.
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14. Subordinate Creditor and Company agree that, if at any time all or
any part of any payment previously applied by Senior Creditor to the Senior Debt
is or must be returned by Senior Creditor or recovered from Senior Creditor for
any reason (including the order of any bankruptcy court), this Agreement shall
automatically be reinstated to the same effect as if the prior application had
not been made, and, in addition, Company hereby agrees to indemnify Senior
Creditor against, and to save and hold Senior Creditor harmless from, any
required return by Senior Creditor or recovery from Senior Creditor of any such
payments because of its being deemed preferential under applicable bankruptcy,
receivership or insolvency laws, or for any other reason.
15. Subordinate Creditor acknowledges that he has been given the
opportunity to receive and review the Credit Agreement, the Guaranty and the
other loan documents executed in connection with or relating to the Senior Debt
and that Subordinate Creditor has availed himself of such opportunity to the
extent he desires to do so, and that he has no objection to any of the terms and
conditions of such documents and consents to the execution and delivery of them
and of this Agreement by Company, and to the performance of each of them by
Company.
16. Except as provided in the next sentence, this Agreement and the
subordination provided for herein shall terminate on the earliest of the
following to occur: (i) payment in full of the Senior Debt, (ii) termination of
the Guaranty and (iii) December 31, 2000. If an Insolvency Event (as defined
below in this Section 3) shall have occurred prior to the termination of this
Agreement pursuant to the preceding sentence, then, in such case, this Agreement
and the subordination provided for herein shall terminate on the earlier to
occur of (i) payment in full of the Senior Debt and (ii) termination of the
Guaranty. The termination of this Agreement shall not affect any rights of
subrogation that the Subordinate Creditor may have under this Agreement or under
applicable law, which rights shall survive such termination. An "INSOLVENCY
EVENT" shall be deemed to occur if (i) a liquidation, dissolution or winding up
of the Company is commenced or (ii) if the Company shall suffer or permit the
filing by or against the Company for adjudication, arrangement, reorganization
or the like under any federal state bankruptcy or insolvency law or (iii) the
Company makes an assignment for the benefit of creditors or (iv) a receiver is
appointed by a court of competent jurisdiction for any part of the Company's
property or assets; provided, however, that, in the case of an involuntary
filing or petition under clause (ii) of this sentence, if the same is dismissed
within 45 days of such filing or petition, such Insolvency Event shall be deemed
not to have occurred.
17. Any notice, request or other communication required or permitted to
be given hereunder shall be given in writing by delivering it against receipt
for it, by depositing it with an overnight delivery service or by depositing it
in a receptacle maintained by the United States Postal Service, postage prepaid,
registered or certified mail, return receipt requested, addressed to the
respective parties at the addresses set forth in the introductory paragraph
hereof (and if so given, shall be deemed given on the second business day after
mailing. The Company's address for notice may be changed at any time and from
time to time, but only after thirty (30) days advance written notice to the
other parties and shall be the most recent such address furnished in writing by
Company to the other parties. Subordinate Creditor's and Senior Creditor's
respective addresses for notice may be changed at any time and from time to
time, but only after ten (10) days' advance written notice to company and each
such party's address for notice shall be the most recent such address furnished
in writing by such party to Company. Actual notice, however and from whomever
given or received, shall always be effective when received.
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18. This Agreement shall not be changed orally but shall be changed
only by agreement in writing signed by Subordinate Creditor and Senior Creditor
(without any necessity for notice to or consent by Company, which are expressly
WAIVED by Company). No course of dealing between the parties, no usage of trade
and no parole or extrinsic evidence of any nature shall be used to supplement or
modify any of the terms or provisions of this Agreement.
19. If any provision of this Agreement is held to be illegal, invalid
or unenforceable under present or future laws, the legality, validity and
enforceability of the remaining provisions of this Agreement shall not be
affected thereby, and this Agreement shall be liberally construed so as to carry
out the intent of the parties to it.
20. THIS AGREEMENT (A) SHALL BE BINDING UPON THE PARTIES HERETO AND
THEIR RESPECTIVE SUCCESSORS AND ASSIGNS; (B) MAY BE MODIFIED OR AMENDED ONLY BY
A WRITING AND SIGNED BY EACH PARTY TO THIS AGREEMENT; (C) SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD
TO CONFLICT OF LAW PRINCIPLES THEREOF; (D) MAY BE EXECUTED IN SEVERAL
COUNTERPARTS, AND BY THE PARTIES TO IT ON SEPARATE COUNTERPARTS AND EACH
COUNTERPART WHEN SO EXECUTED AND DELIVERED SHALL CONSTITUTE AN ORIGINAL
AGREEMENT, AND ALL SUCH SEPARATE COUNTERPARTS SHALL CONSTITUTE ONE AND THE SAME
AGREEMENT; AND (E) EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING AMONG THE
PARTIES WITH RESPECT TO ITS SUBJECT MATTER AND SUPERSEDES ALL PRIOR AGREEMENTS,
CONSENTS AND UNDERSTANDINGS RELATING TO SUCH SUBJECT MATTER.
21. This Agreement is performable in Xxxxxx County, Texas, which shall
be a proper place of venue for suit on or in respect of this Agreement.
Subordinate Creditor irrevocably agrees that any legal proceeding in respect of
this Agreement shall be brought in the district courts of Xxxxxx County, Texas
or the United States District Court for the Southern District of Texas, Houston
Division (collectively, the "SPECIFIED COURTS"). Subordinate Creditor hereby
irrevocably submits to the nonexclusive jurisdiction of the state and federal
courts of the State of Texas. Subordinate Creditor hereby irrevocably waives, to
the fullest extent permitted by law, any objection which he may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement brought in any Specified Court, and hereby further
irrevocably waives any claims that any such suit, action or proceeding brought
in any such court has been brought in an inconvenient forum. Subordinate
Creditor further irrevocably consents to the service of process out of any of
the Specified Courts in any such suit, action or proceeding by the mailing of
copies thereof by certified mail, return receipt requested, postage prepaid, to
Subordinate Creditor at its address as provided in this Agreement or as
otherwise provided by Texas law. Nothing herein shall affect the right of Senior
Creditor to commence legal proceedings or otherwise proceed against Subordinate
Creditor in any jurisdiction or to serve process in any manner permitted by
applicable law. Subordinate Creditor agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
22. So long as no default has occurred under the Guaranty which has not
been waived or fully cured to the satisfaction of Senior Creditor, or would
result from such payment (AND THE PARTIES TO THIS AGREEMENT SPECIFICALLY
STIPULATE AND AGREE OCCURRENCE OF ANY EVENT OF DEFAULT UNDER THE SUBORDINATED
NOTE SHALL
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AUTOMATICALLY CONSTITUTE A DEFAULT UNDER THE SENIOR DEBT), Company may pay, and
Subordinate Creditor may accept and apply, payments (but not prepayments) of
interest accruing on the Subordinated Debt in accordance with the Subordinated
Note's present terms and provisions, as they may hereafter be supplemented or
amended; provided, that no supplement or amendment to the Subordinated Note made
without Senior Creditor's prior written consent shall be effective for any
purpose.
23. To the maximum extent not prohibited by law, any controversy,
dispute, or claim arising out of, in connection with, or relating to this
Agreement or any transaction provided for herein, including but not limited to
any claim based on or arising from an alleged tort or an alleged breach of any
agreement contained herein, shall, at the request of either party hereto (either
before or after the commencement of judicial proceedings), be settled by
arbitration pursuant to Title 9 of the United States Code, which the parties
hereto acknowledge and agree applies to the transaction involved herein, and in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association (the "AAA"). In any such arbitration proceeding: (a) all statutes of
limitations which would otherwise be applicable shall apply; and (b) the
proceeding shall be conducted in Houston, Texas, by a single arbitrator, if the
amount in controversy is $1,000,000.00 or less, or by a panel of three
arbitrators if the amount in controversy is over $1,000,000.00. All arbitrators
shall be selected by the process of appointment from a panel pursuant to Section
13 of the AAA Commercial Arbitration Rules and each arbitrator shall be either
an active attorney or retired judge with an AAA acknowledged expertise in the
subject matter of the controversy, dispute, or claim. Any award rendered in any
such arbitration proceeding shall be final and binding, and judgment upon any
such award may be entered in any court having jurisdiction.
If either party hereto files a proceeding in any court to resolve any
such controversy, dispute, or claim, such action shall not constitute a waiver
of the right of such party or a bar to the right of any other party to seek
arbitration under the provisions of this paragraph of that or any other claim,
dispute, or controversy, and the court shall, upon motion of any party to the
proceeding, direct that such controversy, dispute, or claim be arbitrated in
accordance with this paragraph.
Notwithstanding any of the foregoing, the parties hereto agree that no
arbitrator or panel of arbitrators shall possess or have the power to (i) assess
punitive damages, (ii) dissolve, rescind or reform this Agreement (except that
the arbitrator may construe ambiguous terms of this Agreement), (iii) enter
judgment on the debt, (iv) exercise equitable powers or issue or enter any
equitable remedies, or (v) allow discovery of attorney/client privileged
information, and the parties hereby waive the aforementioned remedies. The
Commercial Arbitration Rules of the AAA are hereby modified to this extent for
the purpose of arbitration of any dispute, controversy, or claim arising out of,
in connection with this Agreement.
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EXECUTED as of the date first above written.
"SUBORDINATE CREDITOR"
STANWICH FINANCIAL SERVICES CORP.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: President
"COMPANY"
NAB ASSET CORPORATION
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Senior Vice President
"SENIOR CREDITOR"
BANK UNITED
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: A.V.P. Account Officer
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