MANHEIM AUTOMOTIVE FINANCIAL SERVICES, INC.
0000 XXXX XXXXX XXXXX
XXXXXXX, XXXXXXX 00000
NOVEMBER 5, 1998
FINOVA Capital Corporation
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Re: First Choice Auto Finance, Inc. ("Dealer")
Gentlemen:
As a condition for the advancement of funds pursuant to that certain credit
facility ("Credit Facility") entered into by Dealer, as Borrower, and by FINOVA
Capital Corporation ("FINOVA"), as Lender, Manheim Automotive Financial
Services, Inc. ("Floor Plan Lender") xxxxxx agrees as follows:
1. That its security interest, if any, in the following described property
(the "Property") of Dealer shall be subordinated to the interest of FINOVA:
Accounts and chattel paper generated by the Dealer's sale of vehicles
("Receivables"), proceeds derived from the collection and/or
liquidation of any of the Receivables, including but not limited to
cash payments, returned or repossessed vehicles securing such
Receivables, and those vehicles that have been sold by Dealer and
previously securing any Receivable(s).
Notwithstanding the foregoing to the contrary, Floor Plan Lender does
not release its security interest in those vehicles which are not
securing any of the Receivables pledged to FINOVA and specifically
financed by Floor Plan Lender with Dealer under financing
accommodations and in which Floor Plan Lender holds a security
interest and Floor Plan Lender's obligation with respect to such
vehicles has not been paid off.
2. That on and after the date of this letter, Floor Plan Lender shall not
provide new or additional financing for any vehicles of Dealer.
3. That upon payment to Floor Plan Lender in full for all vehicles which it is
financing as of the date hereof, that Floor Plan Lender shall immediately
release any and all security interest and liens it holds on the assets of
Dealer.
Floor Plan Lender agrees that upon Floor Plan Lender's release of its
security interest in any vehicle, as set forth herein, Floor Plan Lender shall
not have any security interest in such vehicle thereafter, including, but not
limited to, the return or repossession of such vehicle, and such vehicle shall
not be financed or otherwise floor planned by Floor Plan Lender thereafter.
Nothing herein contained shall be construed as limiting any security
interest of either party in the Property as to anyone except each other. If a
third party, including Dealer's trustee in bankruptcy, should assert a security
interest or other right in any item of Property and have, under any applicable
rule of law, priority over the senior party, but not over the junior party,
then, as to such item of Property, this Agreement shall be null and void.
When accepted by you and returned to us, this Agreement shall remain in
effect until Floor Plan Lender is paid in full.
This Agreement shall be binding upon and for the benefit of the
successors and assigns of Floor Plan Lender and shall be binding upon and inure
to the benefit of the successors and assigns of FINOVA (including successors and
assigns of the Property).
FINOVA and Floor Plan Lender knowingly, voluntarily and intentionally waive
any and all rights either party may have to a trial by jury and elect a bench
trial in the event of any litigation based on, or arising out of, or in
connection with, this Agreement, or any course of conduct, course of dealing,
verbal or written statements, or actions between Floor Plan Lender and FINOVA.
This provision is a material inducement for entering into this Agreement.
If this meets with your approval, please execute and return one copy of
this letter to Floor Plan Lender, and the same constitute an agreement as of the
date of acceptance by you and return to Floor Plan Lender.
Very truly yours,
MANHEIM AUTOMOTIVE FINANCIAL SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------------------
Xxxxxxx X. Xxxx
_________________________________________________
(Printed Name and Title)
ACCEPTED AND AGREED THIS 8th DAY OF November, 1998.
FINOVA CAPITAL CORPORATION
By: /s/ X. Xxxxxx Xxxxxxx
-----------------------------------------
X. Xxxxxx Xxxxxxx, Senior Vice President
_________________________________________
(Printed Name and Title)
The undersigned Dealer acknowledges receipt of a copy of the foregoing
Subordination Agreement.
FIRST CHOICE AUTO FINANCE, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Xxxxx Xxxxxx, Vice President
___________________________________________
(Printed Name and Title) (Date)
