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Exhibit 4.15
JUNIOR SUBORDINATION AGREEMENT
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Agreement dated as of April 16, 1998 between Fleet Capital
Corporation ("Senior Lender"), Xxxxxx Xxxxxxx Inc. ("Xxxxxxx"), as agent for the
"Holders" under and as defined in the Subordinated Note Agreement referenced
below (Xxxxxxx and such Holders collectively, the "Subordinated Lender") and
Xxxxxxx, as agent for the "Holders" under and as defined in the Senior Note
Agreement referenced below (Xxxxxxx, and such Holders collectively, "Senior
Subordinated Lender").
BACKGROUND
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Senior Lender and National Record Mart, Inc. (the "Company")
are parties to a Loan and Security Agreement dated as of June 11, 1993 (as same
has been or may be amended from time to time, the "Loan Agreement"). The
Company, NRM Investment, Inc. ("Guarantor") and Senior Subordinated Lender are
entering into a Senior Subordinated Secured Note Purchase Agreement as of this
date pursuant to which Senior Subordinated Lender will provide credit
accommodations to the Company (as the same may be amended from time to time, the
"Senior Note Agreement"). The Company, and Subordinated Lender are also entering
into a Senior Subordinated Note Purchase Agreement as of this date pursuant to
which Subordinated Lender will provide credit accommodations to the Company (as
the same may be amended from time to time, the "Subordinated Note Agreement").
As an inducement for Senior Lender and Senior Subordinated Lender to consent to
the Company entering into the Subordinated Note Agreement and to induce Senior
Lender and Senior Subordinated Lender to continue to provide credit
accommodations to the Company, Subordinated Lender, on behalf of the purchasers
party to the Subordinated Note Agreement, has agreed to enter into this
subordination agreement to provide for the subordination of the "Subordinated
Indebtedness" to the "Senior Indebtedness".
AGREEMENTS
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NOW, THEREFORE, for good and valuable consideration, receipt
of which is hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
1.1. GENERAL TERMS. For purposes of this Agreement,
the following terms shall have the following meanings:
"AGREEMENTS" shall mean, collectively, the Senior
Lending Agreements, the Senior Subordinated Lending Agreements and the
Subordinated Lending Agreements.
"BUSINESS DAY" - a day excluding Saturday, Sunday
and any day which is a legal holiday under the laws of the State of New York or
is a day on which banking institutions located in such state are closed.
"COMPANY" shall mean the Company and its successors
and assigns.
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"CONTROLLING LENDER" means (i) until all Senior Indebtedness
under the Senior Lending Agreements has been paid in full and satisfied in cash
and all commitments to lend thereunder shall have been irrevocably terminated,
Senior Lender and (ii) thereafter, Senior Subordinated Lender.
"CREDITORS" shall mean, collectively, Senior Lender, Senior
Subordinated Lender and Subordinated Lenders and their respective successors and
assigns.
"DISTRIBUTION" shall mean any payment, whether in cash, in
kind, securities or any other property, or security for any such Distribution.
"DOCUMENTS" shall mean any and all agreements, instruments and
documents (other than the Loan Agreement), heretofore, now or hereafter executed
by Borrower or any Guarantor) and delivered to Lender in respect to the
transactions contemplated by the Loan Agreement, including, without limitation,
any and all promissory notes issued in connection therewith and any guaranty
agreements, security agreements and/or pledge agreements.
"EVENT" shall have the meaning set forth in Section 2.2 (c)
hereof.
"GUARANTOR" shall mean NRM Investments, Inc., a Delaware
corporation.
"HOLDERS OF SUBORDINATED INDEBTEDNESS" or "SUBORDINATED
LENDER" shall mean Xxxxxx Xxxxxxx Inc. and any other Person(s) at any time or in
any manner acquiring any right or interest in any of the Subordinated
Indebtedness.
"LOAN AGREEMENT" shall mean the Loan and Security Agreement
dated June 11, 1993 between the Company and Senior Lender as the same has been
or may be amended, supplemented, modified or restated from time to time.
"PERSON" shall mean an individual, a partnership, a
corporation (including a business trust), a joint stock company, a trust, an
unincorporated association, a joint venture, a limited liability company, a
limited liability partnership or other entity, or a government or any agency,
instrumentality or political subdivision thereof.
"SENIOR INDEBTEDNESS" shall mean (i) all Obligations of any
kind owed by the Company or Guarantor to Senior Lender from time to time under
or pursuant to any of the Senior Lending Agreements including, without
limitation, all principal, interest (including all interest accruing after
commencement of any case, proceeding or other action relating to the bankruptcy,
insolvency or reorganization of the Company) accruing thereon, charges,
expenses, fees and other sums chargeable to the Company or Guarantor by the
Senior Lender, and reimbursement, indemnity or other obligations due and payable
Senior Lender and (ii) all obligations of any kind owed by the Company to Senior
Subordinated Lender from time to time under or pursuant to any of the Senior
Subordinated Lending Agreements including, without limitation, all principal,
premium, if any, interest (including all interest accruing after commencement of
any case, proceeding or other action relating to the bankruptcy, insolvency or
reorganization of the Company) accruing thereon, charges,
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expenses, fees and other sums chargeable to the Company by the Senior
Subordinated Lender, and reimbursement, indemnity or other obligations due and
payable by Senior Subordinated Lender. Senior Indebtedness shall continue to
constitute Senior Indebtedness, notwithstanding the fact that such Senior
Indebtedness or any claim for such Senior Indebtedness is subordinated, avoided
or disallowed under the federal Bankruptcy Code or other applicable law. Senior
Indebtedness shall also include any indebtedness of the Company incurred in
connection with a refinancing of the Senior Indebtedness under the Senior
Lending Agreements and/or the Senior Subordinated Lending Agreements if the
terms and conditions of the agreements, documents and instruments related to
such refinancing, taken as a whole, are not materially more onerous to the
Holder of Subordinated Indebtedness than those set forth in the Senior Lending
Agreements and/or the Senior Subordinated Lending Agreements, as in effect on
the date hereof. For purposes of this Agreement only, the principal amount of
Senior Indebtedness shall not exceed $50,000,000.
"SENIOR LENDER" shall have the meaning set forth in the
introductory paragraph of this Agreement.
"SENIOR LENDING AGREEMENTS" shall mean collectively the Loan
Agreement, and the other Documents between the Company and Senior Lender or
Guarantor and Senior Lender each as from time to time in effect.
"SENIOR SUBORDINATED LENDING AGREEMENTS" shall mean
collectively the Senior Note Agreement, the Senior Subordinated Note and all
promissory notes, agreements, documents, guarantees and instruments now or at
any time hereafter executed and/or delivered by the Company or any other person
to, with or in favor of the Senior Subordinated Lender in connection therewith
or related thereto, as all of the foregoing now exist or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced each as
from time to time in effect.
"SENIOR SUBORDINATED INDEBTEDNESS" shall mean all obligations
of any kind owed by the Company or Guarantor to Senior Subordinated Lender from
time to time under or pursuant to any of the Senior Subordinated Lending
Agreements.
"SENIOR SUBORDINATED LENDER" is defined in the preamble
hereto.
"SENIOR SUBORDINATED NOTE" shall mean those certain promissory
notes issued by the Company to Senior Subordinated Lender in the aggregate
original principal amount of $7,500,000 each dated April 16, 1998 as further
described on EXHIBIT A hereto, together with any extensions thereof, securities
issued in exchange therefor or modifications or amendments thereto.
"SUBORDINATED INDEBTEDNESS" shall mean all principal, premium,
if any, interest and other amounts payable or chargeable in connection with the
Subordinated Lending Agreements.
"SUBORDINATED LENDING AGREEMENTS" shall mean, collectively,
the Subordinated Note Agreement, the Subordinated Note and all promissory notes,
agreements, guarantees, documents and instruments now or at any time hereafter
executed and/or delivered by the Company, Guarantor or any other person to, with
or in favor of the Subordinated Lender in
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connection therewith or related thereto, as all of the foregoing now exist or
may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
"SUBORDINATED NOTE OR NOTE(S)" shall mean those certain
promissory notes issued by the Company to Subordinated Lender in the aggregate
original principal amount of $7,500,000 each dated April 16, 1998 as further
described on EXHIBIT B hereto, together with any extensions thereof, securities
issued in exchange therefor or modifications or amendments thereto.
1.2. CERTAIN MATTERS OF CONSTRUCTION. The terms "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular section, paragraph or
subdivision. Any pronoun used shall be deemed to cover all genders. Wherever
appropriate in the context, terms used herein in the singular also include the
plural and VICE VERSA. All references to statutes and related regulations shall
include any amendments of same and any successor statutes and regulations. All
references to any instruments or agreements, including, without limitation,
references to any of the Senior Lending Agreements, the Senior Subordinated
Lending Agreements or Subordinated Lending Agreements shall include any and all
modifications or amendments thereto and any and all extensions or renewals
thereof.
2. COVENANTS. The Company and each Holder of Subordinated
Indebtedness hereby covenant that until the Senior Indebtedness shall have been
paid in full and satisfied in cash and any commitments to lend under the Senior
Lending Agreement and the Senior Subordinated Lending Agreements shall have been
irrevocably terminated, all in accordance with their respective terms, each will
comply with such of the following provisions as are applicable to it:
2.1. INTENTIONALLY OMITTED.
2.2. SUBORDINATION PROVISIONS. To induce Senior Lender
to enter into the Senior Lending Agreements and to make loans and advances
thereunder and to induce Senior Subordinated Lender to enter into the Senior
Subordinated Lending Agreements and make loans and advances thereunder,
notwithstanding any other provision of the Subordinated Indebtedness to the
contrary, any Distribution with respect to the Subordinated Indebtedness is and
shall be expressly junior and subordinated in right of payment to all amounts
due and owing upon all Senior Indebtedness outstanding from time to time.
Specifically, but not by way of limitation:
(a) PAYMENTS. Neither the Company nor
the Guarantor shall make any Distribution on the Subordinated Indebtedness until
such time as the Senior Indebtedness shall have been paid in full in cash and
any commitments to provide advances under the Senior Lending Agreements and the
Senior Subordinated Lending Agreements shall have been irrevocably terminated;
PROVIDED, HOWEVER, so long as no Event of Default shall have occurred under the
Senior Lending Agreements or the Senior Subordinated Lending Agreements, the
Company may pay and the Holders of Subordinated Indebtedness may receive
regularly scheduled payments of principal and interest on the Subordinated
Indebtedness as set forth on the date hereof in the Subordinated Lending
Agreements.
Following the occurrence of an Event of Default under
the Senior Lending Agreements or Senior Subordinated Lending Agreements relating
to a failure by the Company to
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make payment of any sums due and owing to Senior Lender (any such occurrence, a
"Payment Default") (i) neither the Company nor Guarantor shall make any
Distribution on the Subordinated Indebtedness and (ii) upon and after receipt by
the Holders of Subordinated Indebtedness of written notice of such Payment
Default from Controlling Lender (any such notice, a "Payment Default Notice") no
such Holder of Subordinated Indebtedness shall be entitled to receive or retain
any such Distribution in respect of the Subordinated Indebtedness. Following the
occurrence of an Event of Default (other than a Payment Default) under the
Senior Lending Agreements or the Senior Subordinated Lending Agreements, (i)
neither the Company nor Guarantor shall make any Distribution on the
Subordinated Indebtedness and (ii) upon and after receipt by the Holders of
Subordinated Indebtedness of written notice of such Event of Default from
Controlling Lender (any such notice, a "Default Notice") no such Holder of
Subordinated Indebtedness shall be entitled to receive or retain any such
Distribution in respect of the Subordinated Indebtedness, PROVIDED, FURTHER,
that notwithstanding the foregoing restriction, the Company may pay and the
Holders of Subordinated Indebtedness shall be entitled to receive and retain any
principal or interest payment which shall have become due and payable (on a
non-accelerated basis) on the earliest to occur of (x) the date on which all
such Events of Default specified in the Default Notice shall have been cured or
waived, or (y) payment in full in cash of all Senior Indebtedness and the
irrevocable termination of any commitments to provide advances under the Senior
Lending Agreements and the Senior Subordinated Lending Agreements or (z) the
expiration of a period of ninety (90) days from delivery of the Default Notice.
(b) LIMITATION ON ACCELERATION. During
any period described in Section 2.2 (a) hereof in which a Distribution is not
permitted to be made on Subordinated Indebtedness (any such period, a
"Non-Payment Period"), no Holder of Subordinated Indebtedness shall be entitled
to accelerate the maturity of the Subordinated Indebtedness, exercise any
remedies or commence any action or proceeding to recover any amounts due or to
become due with respect to Subordinated Indebtedness, PROVIDED, HOWEVER, the
foregoing limitation on acceleration or exercise of any remedies shall not be
applicable following (x) the occurrence of an Event (as to which Section 2.2 (c)
shall apply), (y) the maturity or acceleration of all Senior Indebtedness or (z)
ninety (90) days after the Subordinated Lender has given the Controlling Lender
written notice of its intention to take such action.
(c) PRIOR PAYMENT OF SENIOR INDEBTEDNESS
IN BANKRUPTCY, ETC. In the event of any insolvency or bankruptcy proceedings
relative to the Company, Guarantor or their respective property, or any
receivership, liquidation, reorganization or other similar proceedings in
connection therewith, or, in the event of any proceedings for voluntary
liquidation, dissolution or other winding up of the Company, Guarantor or
distribution or marshalling of its assets or any composition with creditors of
the Company or Guarantor, whether or not involving insolvency or bankruptcy, or
if the Company or Guarantor shall cease its operations, call a meeting of its
creditors or no longer do business as a going concern (each individually or
collectively, an "Event") then all Senior Indebtedness shall be paid in full and
satisfied in cash and any commitments to provide advances under the Senior
Lending Agreements and the Senior Subordinated Lending Agreements terminated
before any Distribution shall be made on account of any Subordinated
Indebtedness. Any such Distribution which would, but for the provisions hereof,
be payable or deliverable in respect of the Subordinated Indebtedness, shall be
paid or delivered directly first, to the Senior Lender or its representatives,
in the proportions in which they hold the same, until amounts owing
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upon Senior Indebtedness shall have been paid in full in cash and any
commitments to provide advances under the Senior Lending Agreements and the
Senior Subordinated Lending Agreements have been terminated and second, to the
Senior Subordinated Lender or its representatives, in the proportions in which
they hold the same, until amounts owing upon Senior Indebtedness under the
Senior Subordinated Lending Agreements shall have been paid in full in cash.
(d) ACCELERATION. In the event of any
Senior Indebtedness becoming due and payable, whether by acceleration, maturity
or otherwise, no Distribution shall thereafter be made on account of the
Subordinated Indebtedness until all Senior Indebtedness shall be paid in full in
cash and the Loan Agreement be irrevocably terminated.
(e) POWER OF ATTORNEY. To enable the
Senior Lender to assert and enforce its rights hereunder in any proceeding
referred to in Section 2.2(c) or upon the happening of any Event, the Senior
Lender or any person whom it may designate or Senior Subordinated Lender if all
Senior Indebtedness under the Senior Lending Agreements has been paid in full in
cash and the Loan Agreement irrevocably terminated (any such Person, the
"Attorney in Fact") is hereby irrevocably appointed attorney in fact for the
Subordinated Lender with full power to act in the place and stead of the
Subordinated Lender including the right to make, present, file and vote such
proofs of claim against the Company on account of all or any part of the
Subordinated Indebtedness as the Attorney in Fact may deem advisable in the
event that Subordinated Lender shall fail to do so and to receive and collect
any and all dividends or other payments made thereon and to apply the same on
account of the Senior Indebtedness. The Subordinated Lender will execute and
deliver to the Attorney in Fact such instruments as may be required by the
Attorney in Fact to enforce any and all Subordinated Indebtedness, to effectuate
the aforesaid power of attorney and to effect collection of any and all
dividends or other payments which may be made at any time on account thereof,
and the Subordinated Lender hereby irrevocably appoints the Attorney in Fact as
the lawful attorney and agent of the Subordinated Lender to execute financing
statements on behalf of the Subordinated Lender and hereby further authorizes
the Attorney in Fact to file such financing statements in any appropriate public
office.
(f) KNOWLEDGE; DELIVERY OF PAYMENT
DEFAULT NOTICE. No holder of any Subordinated Indebtedness shall at any time be
charged with knowledge of any of the events described in Section 2.2 (a) hereof
or on such account be prohibited from receiving or retaining any payment of
monies or from taking any action regarding acceleration or the exercise of
remedies, unless and until such holder shall have received a Default Notice or
Payment Default Notice; PROVIDED, HOWEVER, any "default" or "event of default"
under the Subordinated Note and/or Subordinated Lending Agreements shall
automatically constitute an Event of Default under the Senior Lending
Agreements and the Senior Subordinated Lending Agreements so that payments
received by any Holder of Subordinated Indebtedness following any such
occurrence shall not be retained irrespective of the lack of receipt by such
holder of a Default Notice or Payment Default Notice, UNLESS (i) the Event of
Default is waived by the required Holders of Subordinated Indebtedness, (ii) a
copy of such waiver is given in writing by Subordinated Lender to Senior Lender
and Senior Subordinated Lender, and (iii) no Default Notice is thereafter
forthcoming from Controlling Lender within five (5) Business Days following the
giving of notice of the aforesaid waiver, in which event any Holder of
Subordinated Indebtedness may retain all payments previously or thereafter
received, subject to the provisions of Section 2.2 (a).
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Each Default Notice and Payment Default Notice shall be deemed
to be properly given by Controlling Lender to the Subordinated Lender if such
Default Notice or Payment Default Notice is delivered in accordance with Section
3.7 hereof.
No more than two (2) Default Notices may be given in any
365-day period, and no Default or Event of Default which existed or which was
continuing with respect to any Senior Indebtedness to which the Default Notice
relates on the date such Default Notice was given shall be the basis for the
commencement of any subsequent Default Notice by any holder of Senior
Indebtedness unless such Default or Event of Default is cured or waived for a
period of not less than ninety (90) days.
(g) PAYMENTS HELD IN TRUST. Should any
Distribution or the proceeds thereof, in respect of the Subordinated
Indebtedness, be collected or received by the Subordinated Lender or any
Affiliate (as such term is defined in Rule 405 of Regulation C adopted by the
Securities and Exchange Commission pursuant to the Securities Act of 1933) of
the Subordinated Lender at a time when the Subordinated Lender is not permitted
to receive any such Distribution or proceeds thereof including if same is
collected or received when there is or would be after giving effect to such
payment an Event of Default under the Senior Lending Agreements or the Senior
Subordinated Lending Agreements, then the Subordinated Lender will forthwith
deliver, or cause to be delivered, the same to the Controlling Lender in
precisely the form held by the Subordinated Lender (except for any necessary
endorsement) and until so delivered, the same shall be held in trust by the
Subordinated Lender, or any such Affiliate, as the property of the Controlling
Lender and shall not be commingled with other property of the Subordinated
Lender or any such Affiliate.
(h) SUBROGATION. Subject to the prior
payment in full in cash of the Senior Indebtedness and the irrevocable
termination of any commitments to provide advances under the Senior Lending
Agreements or the Senior Subordinated Lending Agreements, to the extent that
Senior Lender or Senior Subordinated Lender has received any Distribution on the
Senior Indebtedness which, but for this Agreement and the Subordination
Agreement dated this date among Senior Lender, Senior Subordinated Lender,
Guarantor and the Company ("Additional Subordination Agreement"), would have
been applied to the Subordinated Indebtedness, the Subordinated Lender shall be
subrogated to the then or thereafter rights of the Senior Lender and/or Senior
Subordinated Lender, as the case may be, including, without limitation, the
right to receive any Distribution made on the Senior Indebtedness until the
principal of, premium, if any, interest on and other charges due under the
Subordinated Indebtedness shall be paid in full; and, for the purposes of such
subrogation, no Distribution to the Senior Lender and/or Senior Subordinated
Lender, as the case may be, to which the Subordinated Lender would be entitled
except for the provisions of this Agreement and the Additional Subordination
Agreement shall, as between the Company, Guarantor, their respective creditors
(other than the Senior Lender and Senior Subordinated Lender) and the
Subordinated Lender, be deemed to be a Distribution by the Company or Guarantor
to or on account of Senior Indebtedness, it being understood that the provisions
hereof are and are intended solely for the purpose of defining the relative
rights of the Subordinated Lender on the one hand, and the Senior Lender and/or
Senior Subordinated Lender on the other hand.
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(i) SCOPE OF SUBORDINATION. The
provisions of this Agreement are solely to define the relative rights of any
Holder of Subordinated Indebtedness, the Senior Lender and the Senior
Subordinated Lender. Nothing in this Agreement shall impair, as between the
Company, Guarantor and the Subordinated Lender the unconditional and absolute
obligation of the Company and/or Guarantor to punctually pay the principal,
interest and any other amounts and obligations owing under the Subordinated Note
and/or any Subordinated Lending Agreements in accordance with the terms thereof,
subject to the rights of the Senior Lender under this Agreement. If the Borrower
fails because of this Agreement to pay principal of, premium, if any, and
interest on the Subordinated Notes or any other obligations owing under the
Subordinated Lending Agreements on the date when such payment is due (other than
any payment due after, and during the effectiveness of, a Default Notice), the
failure to make such payment shall be an Event of Default under the Subordinated
Lending Agreements notwithstanding any provision of this Agreement.
(j) Tender of Subordinated Notes for
Warrants. Each Holder of Subordinated Indebtedness shall at all times,
notwithstanding any provisions of this Agreement regarding prohibitions on
receiving payments or exercising rights and remedies with respect to
Subordinated Indebtedness, have the right to tender the Subordinated Note held
by it to the Company to pay the exercise price of the Warrants (as defined in
the Subordinated Note Agreement) in lieu of cash.
3. MISCELLANEOUS.
3.1. PROVISIONS OF SUBORDINATED NOTE. From and after
the date hereof, the Company, Guarantor and the Subordinated Lender shall cause
each Subordinated Note and any guarantee to contain a provision to the following
effect:
"This Agreement is subject to the Subordination Agreement,
dated April 16, 1998, among the Maker, the Payee, Senior
Lender and Senior Subordinated Lender, under which this
Agreement and the Maker's obligations hereunder are
subordinated in the manner set forth therein to the prior
payment of certain obligations to the holders of Senior
Indebtedness as defined therein."
Proof of compliance with the foregoing shall be promptly given
to Senior Lender.
3.2. ADDITIONAL AGREEMENTS. In the event that the
Senior Indebtedness is refinanced in full, Subordinated Lender agrees at the
request of such refinancing party to enter into a subordination agreement on
terms substantially similar to this Subordination Agreement; provided that the
refinancing Senior Indebtedness shall be in compliance with Section 3.6.
3.3. SURVIVAL OF RIGHTS. The right of Senior Lender and
Senior Subordinated Lender to enforce the provisions of this Agreement shall not
be prejudiced or impaired by any act or omitted act of the Company, Guarantor or
Senior Lender or Senior Subordinated Lender including forbearance, waiver,
consent, compromise, amendment, extension, renewal, or taking or release of
security in respect of any Senior Indebtedness or noncompliance by
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the Company or Guarantor with such provisions, regardless of the actual or
imputed knowledge of Senior Lender or Senior Subordinated Lender.
3.4. RECEIPT OF AGREEMENTS. Subordinated Lender hereby
acknowledges that it has delivered to Senior Lender and Senior Subordinated
Lender a correct and complete copy of the Subordinated Lending Agreements as in
effect on the date hereof. The Subordinated Lender, solely for the purposes of
this Agreement, hereby acknowledges receipt of a correct and complete copy of
each of the Senior Lending Agreements and Senior Subordinated Lending Agreements
as in effect on the date hereof.
3.5. NO AMENDMENT OF SUBORDINATED LENDING AGREEMENTS. So long
as the Loan Agreement and/or Senior Subordinated Note remains in effect, neither
the Company nor any Holder of Subordinated Indebtedness shall enter into any
amendment to or modification of any Subordinated Lending Agreements which
increases the principal amount, increases the interest rate by more than three
percent (3%) per annum or shortens or accelerates the maturity or due date of
any payments thereunder, without the prior written consent of Senior Lender and
the Senior Subordinated Lender.
3.6. AMENDMENTS TO SENIOR LENDING AGREEMENTS. Nothing
contained in this Agreement, or in any other agreement or instrument binding
upon any of the parties hereto other than the Additional Subordination
Agreement, shall in any manner limit or restrict the ability of Senior Lender or
Senior Subordinated Lender from increasing or changing the terms of the loans
under the Senior Lending Agreements or Senior Subordinated Lending Agreements,
or to otherwise waive, amend or modify the terms and conditions of the Senior
Lending Agreements or Senior Subordinated Lending Agreements, in such manner as
Senior Lender and/or Senior Subordinated Lender and the Company shall mutually
determine. Each Holder of Subordinated Indebtedness hereby consents to any and
all such waivers, amendments, modifications and compromises, and any other
renewals, extensions, indulgences, releases of collateral or other
accommodations granted by the Senior Lender and/or Senior Subordinated Lender to
the Company from time to time, and agrees that none of such actions shall in any
manner affect or impair the subordination established by this Subordination
Agreement in respect of the Subordinated Indebtedness.
3.7. NOTICE OF DEFAULT AND CERTAIN EVENTS. The Senior Lender,
Senior Subordinated Lender and the Holders of Subordinated Indebtedness shall
undertake in good faith to notify the other of the occurrence of any of the
following as applicable, within five (5) Business Days after obtaining knowledge
thereof :
(a) the obtaining of actual knowledge of the occurrence
of any default under the Subordinated Lending Agreements;
(b) the acceleration of any Senior Indebtedness by the
Senior Lender or Senior Subordinated Lender or of any Subordinated Indebtedness
by any Holder of Subordinated Indebtedness;
(c) the granting by Senior Lender or Senior Subordinated
Lender of any waiver of any Event of Default under the Loan Agreement or the
Senior Subordinated
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Lending Agreements, as the case may be, or the granting by any Holder of
Subordinated Indebtedness of any waiver of any "default" or "event of default"
under the Subordinated Lending Agreements;
(d) the payment in full by the Company (whether as a
result of refinancing or otherwise) of all Senior Indebtedness; or
(e) any amendment to any of the Agreements.
The failure of any party to give such notice shall not affect
the subordination of the Subordinated Indebtedness as provided in this
Subordination Agreement.
3.8. NOTICES. Any notice or other communication required or
permitted pursuant to this Agreement shall be deemed given (a) when personally
delivered to any officer of the party to whom it is addressed, (b) on the
earlier of actual receipt thereof or three (3) days following posting thereof by
certified or registered mail, postage prepaid, or (c) upon actual receipt
thereof when sent by a recognized overnight delivery service or (d) upon actual
receipt thereof when sent by telecopier to the number set forth below with
telephone communication confirming receipt and subsequently confirmed by
registered, certified or overnight mail to the address set forth below, in each
case addressed to each party at its address set forth below or at such other
address as has been furnished in writing by a party to the other by like notice:
If to Senior Lender: Fleet Capital Corporation
000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Northeast Loan Administrator
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to: Xxxx & Hessen LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to Senior: c/o Xxxxxx Xxxxxxx Inc.
Subordinated Lender 000 Xxxx Xxxxxx, 00xx Xxxxx
Xx Junior Xxx Xxxx, Xxx Xxxx 00000
Subordinated Attention: Xxxxxxx X. Xxxx
Lender: Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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with a copy to: Sidley & Austin
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Company
or Guarantor: c/o National Record Mart, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to: Xxxx Xxxxx Xxxx & XxXxxx
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
3.9. BOOKS AND RECORDS. The Subordinated Lender shall furnish
Senior Lender and Senior Subordinated Lender, upon request from time to time, a
confirmation of the amount due and owing to the Subordinated Lender and the
status of the account between the Subordinated Lender and the Company.
3.10. BINDING EFFECT; OTHER. This Subordination Agreement
shall be a continuing agreement, shall be binding upon and shall inure to the
benefit of the parties hereto from time to time and their respective successors
and assigns, shall be irrevocable and shall remain in full force and effect
until the Senior Indebtedness shall have been satisfied or paid in full in cash
and any commitments to provide advances under the Senior Lending Agreements or
the Senior Subordinated Lending Agreements shall have been irrevocably
terminated, but shall continue to be effective, or be reinstated, as the case
may be, if at any time payment, or any part thereof, of any amount paid by or on
behalf of the Company or Guarantor with regard to the Senior Indebtedness is
rescinded or must otherwise be restored or returned upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Company or
Guarantor, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee, custodian, or similar officer, for the Company or
Guarantor or any substantial part of their respective property, or otherwise,
all as though such payments had not been made. No action which Senior Lender or
Senior Subordinated Lender or the Company or Guarantor may take or refrain from
taking with respect to the Senior Indebtedness, including any amendments
thereto, shall affect the provisions of this Subordination Agreement or the
obligations of any Subordinated Lender hereunder. Any waiver or amendment
hereunder must be evidenced by a signed writing of the party to be bound
thereby, and shall only be effective in the specific instance. This
Subordination Agreement shall be governed by and
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construed in accordance with the laws of the State of New York. The headings in
this Subordination Agreement are for convenience of reference only, and shall
not alter or otherwise affect the meaning hereof.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) By its acceptance of its Subordinated Note, each Holder
of Subordinated Indebtedness agrees that it shall not assign or transfer any of
the Subordinated Indebtedness without such assignment or transfer being made
expressly subject to the terms of this Subordination Agreement. Subordinated
Lender further warrants to Senior Lender and Senior Subordinated Lender that it
has full right, power and authority to enter into this Subordination Agreement
and, to the extent Subordinated Lender is an agent or trustee for other parties,
that this Subordination Agreement shall fully bind all such other parties.
(b) Senior Lender and Senior Subordinated Lender on behalf
of the purchasers under the Senior Note Agreement agree that neither shall
assign or transfer any of the Senior Indebtedness without such assignment or
transfer being made expressly subject to the terms and provisions of the
Subordination Agreement. Senior Lender and Senior Subordinated Lender further
warrant to Subordinated Lender that each has full right, power and authority to
enter into this Subordination Agreement and, to the extent Senior Lender and/or
Senior Subordinated Lender is an agent or trustee for other parties, that this
Subordination Agreement shall fully bind all such other parties.
5. PROCEEDINGS. ANY JUDICIAL PROCEEDING BROUGHT BY OR AGAINST
ANY HOLDER OF SUBORDINATED INDEBTEDNESS WITH RESPECT TO THIS OR ANY RELATED
AGREEMENT MAY BE BROUGHT IN ANY COURT OF COMPETENT JURISDICTION IN THE SUPREME
COURT OF THE STATE OF NEW YORK, ANY FEDERAL DISTRICT COURT WITHIN THE STATE OF
NEW YORK, OR ELSEWHERE AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT ANY
HOLDER OF SUBORDINATED INDEBTEDNESS , SENIOR LENDER, SENIOR SUBORDINATED LENDER
AND THE COMPANY ACCEPT FOR THEMSELVES AND IN CONNECTION WITH THEIR PROPERTIES,
GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS AGREEMENT. NOTHING HEREIN SHALL AFFECT THE RIGHT TO
SERVE PROCESS IN ANY MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE
SENIOR LENDER OR SENIOR SUBORDINATED LENDER TO BRING PROCEEDINGS AGAINST ANY
HOLDER OF SUBORDINATED INDEBTEDNESS IN ANY COURTS OF ANY OTHER JURISDICTION ANY
JUDICIAL PROCEEDING BY ANY HOLDER OF SUBORDINATED INDEBTEDNESS AGAINST THE
SENIOR LENDER AND/OR SENIOR SUBORDINATED LENDER INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF, RELATED TO OR
CONNECTED WITH THIS AGREEMENT OR ANY RELATED AGREEMENT, SHALL BE BROUGHT ONLY IN
A COURT LOCATED IN XXX XXXX XX XXX XXXX, XXXXX XX XXX XXXX; PROVIDED THAT
NOTWITHSTANDING THE FOREGOING, IF IN ANY JUDICIAL PROCEEDING BY OR AGAINST ANY
HOLDER OF SUBORDINATED INDEBTEDNESS THAT IS BROUGHT
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IN ANY OTHER COURT SUCH COURT DETERMINES THAT SENIOR LENDER AND/OR SENIOR
SUBORDINATED LENDER IS AN INDISPENSABLE PARTY, SUCH HOLDER OF SUBORDINATED
INDEBTEDNESS SHALL BE ENTITLED TO JOIN OR INCLUDE SENIOR LENDER AND/OR SENIOR
SUBORDINATED LENDER IN SUCH PROCEEDINGS IN SUCH OTHER COURT. EACH HOLDER OF
SUBORDINATED INDEBTEDNESS WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY
ACTION INSTITUTED HEREUNDER AND SHALL NOT ASSERT ANY DEFENSE BASED ON LACK OF
JURISDICTION OR VENUE OR BASED UPON FORUM NON CONVENIENS.
6. WAIVER OF JURY TRIAL. EACH CREDITOR HEREBY EXPRESSLY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A)
ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF ANY CREDITOR OR ANY OF THEM WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENTS OR AGREEMENT
EXECUTED OR DELIVERED BY THEM IN CONNECTION HEREWITH, OR THE TRANSACTIONS
RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE AND EACH CREDITOR
HEREBY AGREES AND CONSENTS THAT ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
SHALL BE DECIDED BY COURT TRIAL WITHOUT JURY, AND THAT EITHER OF THEM MAY FILE
AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THEIR CONSENT TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
IN WITNESS WHEREOF, the undersigned have entered into this
Agreement this 16 day of April, 1998.
FLEET CAPITAL CORPORATION,
as Senior Lender
By: /s/ Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxx
-----------------------------
Title: SVP
----------------------------
XXXXXX XXXXXXX INC.,
as agent for the Senior Subordinated Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------------
Title: Senior V.P.
----------------------------
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XXXXXX XXXXXXX INC.,
as agent for the Subordinated Lender
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------------
Title: Senior V.P.
----------------------------
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COMPANY'S AND GUARANTOR'S ACKNOWLEDGEMENT
The undersigned Company and Guarantor hereby acknowledges and
agrees to the foregoing Subordination Agreement. The undersigned agrees to be
bound by the terms and provisions thereof as they relate to the relative rights
of the Creditors with respect to each other. However, nothing therein shall be
deemed to amend, modify, supersede or otherwise alter the terms of the
respective agreements between the undersigned and each Creditor. The undersigned
further agrees that the Subordination Agreement is solely for the benefit of the
Creditors and shall not give the undersigned, its successors and assigns, or any
other person, any rights vis-a-vis any Creditor.
NATIONAL RECORD MART, INC.,
Company
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
----------------------------
Title: Senior Vice President & CFO
---------------------------
NRM INVESTMENTS, INC.,
Guarantor
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
----------------------------
Title: President
---------------------------
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XXXXX XX Xxx Xxxx )
: ss.:
COUNTY OF New York )
On the 14th day of April, 1998, before me personally came
Xxxxxxx X. Xxxxxxxxx, to me known, who being by me duly sworn, did depose and
say that he resides at c/o RFI 000 Xxxx Xxx. XX, XX, that he is the Senior V.P.
of Xxxxxx Xxxxxxx Inc, the corporation described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the board of directors of said corporation, and that he signed his name
thereto by like order.
/s/ Xxxxxxx Xxxxx
-------------------------------
Notary Public
XXXXXXX XXXXX
Notary Public, State of New York
No. 00-0000-00
Qualified in New York County
Commission Expires 11/26/98
STATE OF _________ )
: ss.:
COUNTY OF Hartford )
On the ____ day of April, 1998, before me personally came
_________________, to me known, who being by me duly sworn, did depose and say
that he resides at ______________________ ______________________, that he is the
___________ of Seneca Capital L.P., the corporation described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the board of directors of said corporation, and that he
signed his name thereto by like order.
-------------------------------
Notary Public
STATE OF Connecicut )
: ss.:
COUNTY OF Hartford )
On the 14th day of April, 1998, before me personally came
Xxxx Xxxxxxxxx, to me known, who being by me duly sworn, did depose and say
that he resides at 000 Xxxxxx Xxx. Xxxxxxxxxxx, XX., that he is the
SVP of Fleet Capital Corporation, the corporation described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the board of directors of said corporation, and that he
signed his name thereto by like order.
/s/ Xxxx X. Xxxxxxxxx
-------------------------------
Notary Public
XXXX X. XXXXXXXXX
NOTARY PUBLIC
MY COMMISSION EXPIRES FEB. 28, 2000
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STATE OF Pennsylvania )
: ss.:
COUNTY OF Allegheny )
On the 15th day of April, 1998, before me personally came
Xxxxxxx Xxxxxxx, to me known, who being by me duly sworn, did depose and say
that he resides at 000 Xxxxxx Xxxxxx, that he is the Senior Vice President & CFO
of National Record Mart, Inc., the corporation described in and which executed
the foregoing instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by order of the board of directors of said corporation, and that he signed his
name thereto by like order.
/s/ Xxxxxxxxx X. Xxxxxx
-------------------------------
Notary Public
Notarial Seal
Xxxxxxxxx X. Xxxxxx, Notary Public
Carnegie Boro, Allegheny County
My Commission Expires Dec. 24, 1998
Member, Pennsylvania Association of Notaries
STATE OF Pennsylvania )
: ss.:
COUNTY OF Allegheny )
On the 15th day of April, 1998, before me personally came
Xxxxxxx Xxxxxxx, to me known, who being by me duly sworn, did depose and say
that he resides at 000 Xxxxxx Xxxxxx, that he is the President of
____________________, NRM Investments, Inc., the corporation described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the board of directors of said corporation,
and that he signed his name thereto by like order.
/s/ Xxxxxxxxx X. Xxxxxx
-------------------------------
Notary Public
Notarial Seal
Xxxxxxxxx X. Xxxxxx, Notary Public
Carnegie Boro, Allegheny County
My Commission Expires Dec. 24, 1998
Member, Pennsylvania Association of Notaries
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