VOTING AGREEMENT
Voting Agreement, dated as of December 22, 1997, by and among The
1818 Mezzanine Fund, L.P., a Delaware limited partnership (the "Fund"), PC
Investment Company, a Delaware corporation ("PCI"), Progressive Investment
Company, Inc., a Delaware corporation ("Progressive," and together with PCI, the
"Progressive Entities"), and National Auto Finance Company, L.P., a Delaware
limited partnership "(NAFC"). Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Purchase Agreement (as
defined below).
WHEREAS, National Auto Finance Company, Inc., a Delaware corporation
(the "Company"), has entered into that certain Securities Purchase Agreement,
dated as of the date hereof (the "Purchase Agreement"), with the Fund, PCI,
Progressive and Manufacturers Life Insurance Company (U.S.A.), a Michigan
corporation;
WHEREAS, NAFC is a significant stockholder of the Company; and
WHEREAS, the Fund, the Progressive Entities and NAFC have agreed,
inter alia, to make certain provisions for the governance of the Company and to
take certain actions to effectuate the transactions contemplated in the Purchase
Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements
herein and the execution by the Fund and the Progressive Entities of the
Purchase Agreement, the parties hereto hereby agree as follows:
1. Representations and Warranties of NAFC. NAFC hereby represents
and warrants to the Fund and the Progressive Entities as follows:
(a) Title. As of the date hereof, NAFC beneficially owns
(exclusive of options) 4,230,000 shares (the "NAFC Shares") of common stock, par
value $.01 per share (the "Common Stock"), of the Company.
(b) Right to Vote. NAFC has full legal power, authority and
right to vote all NAFC Shares for the election of persons nominated by the Fund
and the Progressive Entities to the Company's Board of Directors. Without
limiting the generality of the foregoing, except for this Agreement, NAFC is not
a party to any voting agreement with any person or entity with respect to any of
the NAFC Shares, has not granted any person or entity any proxy (revocable or
irrevocable) or power of attorney with respect to any of the
DAFS03...:\97\64897\0001\2058\AGR4178P.510
NAFC Shares, has not deposited any of the NAFC Shares in a voting trust and has
not entered into any arrangement or agreement with any person or entity limiting
or affecting NAFC's legal power, authority or right to vote the NAFC Shares for
the election of persons nominated by the Fund and the Progressive Entities to
the Company's Board of Directors. From and after the date hereof, NAFC will not
commit any act that could restrict or otherwise affect such legal power,
authority and right to vote all NAFC Shares for the election of persons
nominated by the Fund and the Progressive Entities to the Company's Board of
Directors. Without limiting the generality of the foregoing, from and after the
date hereof NAFC will not enter into any voting agreement with any person or
entity with respect to any of the NAFC Shares, grant any person or entity any
proxy (revocable or irrevocable) or power of attorney with respect to any of the
NAFC Shares, deposit any of the NAFC Shares into a voting trust or otherwise
enter into any agreement or arrangement limiting or affecting NAFC's legal
power, authority or right to vote the NAFC Shares for the election of persons
nominated by the Fund and the Progressive Entities to the Company's Board of
Directors (other than this Agreement).
(c) Authority. NAFC has full legal power, authority and right
to execute and deliver, and to perform the obligations under, this Agreement.
This Agreement has been duly executed and delivered by NAFC and constitutes a
valid and binding agreement of NAFC enforceable against NAFC in accordance with
its terms, subject to (i) bankruptcy, insolvency, moratorium and other similar
laws now or hereinafter in effect relating to or affecting creditors, rights
generally and (ii) general principles of equity (regardless of whether
considered in a proceeding at law or in equity).
(d) Conflicting Instruments; No Transfer. Neither the
execution and delivery of this Agreement nor the performance by NAFC of the
agreements and obligations hereunder will result in any breach, violation of,
conflict with, or default under any term of any agreement, judgment, injunction,
order, decree, law, regulation or arrangement to which NAFC is a party or by
which NAFC (or any assets of NAFC) is bound, except for any such breach,
violation, conflict or default which, individually or in the aggregate, would
not impair or affect NAFC's ability to cast all votes represented by the NAFC
Shares for the election of persons nominated by the Fund and the Progressive
Entities to the Company's Board of Directors.
2. Agreement to Vote of NAFC. NAFC hereby irrevocably and
unconditionally agrees to vote or to cause to be voted all NAFC Shares in favor
of the election of the nominees designated by each of the Fund and the
Progressive Entities pursuant to and in accordance with Section 9.10 of the
Purchase Agreement to the Board of
2
Directors of the Company at each annual or special meeting of stockholders where
such nominee is included in the slate of candidates for election as a director
of the Company.
3. Invalid Provisions. If any provision of this Agreement shall be
invalid or unenforceable under applicable law, such provision shall be
ineffective to the extent of such invalidity or unenforceability only, without
it affecting the remaining provisions of this Agreement.
4. Executed in Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original with the same effect as of the
signatures hereto and thereto were upon the same instrument.
5. Specific Performance. The parties hereto agree that if for any
reason NAFC fails to perform any of its agreements or obligations under this
Agreement irreparable harm or injury to the Fund or the Progressive Entities
would be caused for which money damages would not be an adequate remedy.
Accordingly, NAFC agrees that in seeking to enforce this Agreement against NAFC,
the Fund and the Progressive Entities shall be entitled to specific performance
and injunctive and other equitable relief; provided that with respect to NAFC's
agreements and obligations under this Agreement, the provisions of this Section
5 are without prejudice to any other rights or remedies, whether at law or in
equity, that the Fund and the Progressive Entities may have against NAFC for any
failure to perform any of its agreements or obligations under this Agreement.
6. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without giving effect to
the principles of conflicts of laws thereof.
7. Amendments: Termination. (a) This Agreement may not be modified,
amended, altered or supplemented, except upon the execution and delivery of a
written agreement executed by the parties hereto.
(b) The respective obligations of NAFC to the Fund and the
Progressive Entities under this Agreement shall terminate upon the termination
of the Fund's and the Progressive Entities' respective rights to nominate
persons to the Company's Board of Directors pursuant to Section 9.10 of the
Purchase Agreement.
8. Additional Shares. If, after the date hereof, NAFC acquires the
right to vote any additional shares of Common Stock (any such shares are called
"Additional Shares"), including, without limitation, upon exercise of any
option, warrant or right to
3
acquire shares of Common Stock or through any stock dividend or stock split, the
provisions of this Agreement (other than those set forth in Section 1)
applicable to the NAFC Shares shall be applicable to such Additional Shares as
if such Additional Shares had been NAFC Shares as of the date hereof. The
provisions of the immediately preceding sentence shall be effective with respect
to Additional Shares without action by any person or entity immediately upon the
acquisition by NAFC of beneficial ownership of such Additional Shares.
9. Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
legal successors (including, in the case of any individual, any executors,
administrators, estates, legal representatives and heirs of such individual) and
assigns (which, for purposes of this Agreement, shall include the partners of
NAFC to the extent such partners receive NAFC Shares upon any distribution by,
or liquidation of, NAFC).
4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of this 22nd day of December, 1997.
NATIONAL AUTO FINANCE COMPANY, L.P.
By: National Auto Finance Corporation,
its General Partner
By:
Name:
Title:
THE 1818 MEZZANINE FUND, L.P.
By: ▇▇▇▇▇ Bothers ▇▇▇▇▇▇▇▇ & Co.,
its General Partner
By:
Name:
PC INVESTMENT COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Investment Officer
THE PROGRESSIVE INVESTMENT COMPANY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇
Title: Chief Investment Officer
5