PLEDGE AND CUSTODIAL AGREEMENT
This PLEDGE AND CUSTODIAL AGREEMENT, dated as of July 28, 1999 (this
"Agreement"), is entered into among MF RECEIVABLES HOLDING CORP., a Delaware
corporation (the "Company"), NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a
national banking association, as trustee under the Indenture Documents (the
"Indenture Trustee"), ROTHSCHILD NORTH AMERICA, INC., a Delaware corporation
("Rothschild"), and THE BANK OF NEW YORK, a New York banking corporation, as
collateral agent (the "Collateral Agent").
RECITALS
(Capitalized terms have the meaning defined below.)
WHEREAS, Monaco Finance, Inc., a Colorado corporation ("Monaco"), and the
Indenture Trustee have previously entered into the Indenture Documents, pursuant
to which, among other things, Monaco has incurred the Indenture Obligations;
WHEREAS, Monaco, the Company and the Indenture Trustee, with the consent
of the holders of notes issued pursuant to the Indenture Documents, have agreed
to enter into that certain Consent and Amendment No. 2 to Indenture and Related
Documents, dated as of even date herewith (the "Indenture Amendment"), pursuant
to which, among other things, the Company has agreed to assume all of the
obligations of Monaco in respect of the Indenture Obligations;
WHEREAS, Monaco and Rothschild have previously entered into the Rothschild
Documents, pursuant to which, among other things, Monaco has incurred the
Rothschild Obligations; and
WHEREAS, Monaco, the Company and Rothschild have agreed to enter into that
certain Amendment to Amended and Restated Note Purchase Agreement, dated as of
even date herewith, (the "Rothschild Amendment"), pursuant to which, among other
things, the Company has agreed to assume all of the obligations of Monaco in
respect of the Rothschild Obligations;
WHEREAS, the execution and delivery hereof is a condition to the
effectiveness of each of the Indenture Amendment and the Rothschild
Amendment;
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants and agreements contained herein and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties agree as follows:
AGREEMENT
Section 1. Certain Defined Terms; Certain Rules of Construction.
(a) Certain Defined Terms. As used herein:
"Agreement" means this Pledge and Custodial Agreement.
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3360.03/Pledge&Custodial
"Ancillary Rights" means all rights, claims and benefits of the Company
against any Person arising out of, relating to or in connection with the Pledged
Shares, whether arising in contract, in tort or otherwise.
"Applicable Percentage" means: (i) as to the Indenture Trustee, (A) if the
Indenture Obligations are still outstanding but the Rothschild Obligations have
been repaid in full, 100% and (B) otherwise, a fraction, the numerator of which
is the outstanding principal amount of the Indenture Obligations as of the
Effective Date and the denominator of which is the outstanding principal amount
of the Secured Obligations as of the Effective Date (in each case, after giving
effect to all payments made on account of such Secured Obligations on or before
the Effective Date); and (ii) as to Rothschild, (A) if the Rothschild
Obligations are still outstanding but the Indenture Obligations have been repaid
in full, 100% and (B) otherwise, a fraction, the numerator of which is the
outstanding principal amount of the Rothschild Obligations as of the Effective
Date and the denominator of which is the outstanding principal amount of the
Secured Obligations as of the Effective Date (in each case, after giving effect
to all payments made on account of such Secured Obligations on or before the
Effective Date).
"Collateral" means, collectively, the Pledged Shares, the
Ancillary Rights and all Proceeds.
"Collateral Agent" has the meaning set forth in the introductory paragraph
of this Agreement or any successor under this Agreement as provided in Section
13.
"Company" has the meaning set forth in the introductory
paragraph of this Agreement.
"Default Notice" means a written notice, substantially in the form
attached hereto as Exhibit A, delivered by a Secured Party to the Collateral
Agent, the other Secured Party and the Company pursuant to Section 12(c).
"Directing Party" means, collectively, until such time as the Secured
Obligations have been finally repaid in full, Xxxxxx Financial, Inc., BDC
Partners I, L.P. and Rothschild; provided that, from and after the date that any
Secured Obligation has been finally repaid in full, the term "Directing Party"
shall no longer include the Person to whom such Secured Obligation was owed.
"Effective Date" has the meaning set forth in Section 15(e)(ii).
"Event of Default" has the meaning ascribed to such term in any
Transaction Document.
"Indenture Amendment" has the meaning set forth in the recitals
hereof.
"Indenture Documents" means, collectively, the Indenture, dated as of
January 9, 1996, between the Company and the Indenture Trustee, all outstanding
notes issued pursuant thereto by the Company and all agreements, documents and
instruments entered into in connection therewith (including the Indenture
Amendment).
"Indenture Obligations" means the Obligations of the Company
under the Indenture Documents.
"Indenture Trustee" has the meaning set forth in the introductory
paragraph of this Agreement or any successor under the Indenture Documents.
"Lien" means any lien, security interest, charge or encumbrance or other
similar right or claim of any Person.
"Merger" has the meaning ascribed thereto in Section 6(b).
"MF III" means MF Receivables Corp. III, a Delaware corporation, which,
prior to the effectiveness of the Merger, was a wholly owned subsidiary of
Monaco and, as of the Effective Date, is a wholly owned Subsidiary of the
Company.
"XX XX" means MF Receivables Corp. IV, a Delaware corporation, which,
prior to the effectiveness of the Merger, was a wholly owned subsidiary of
Monaco and, as of the Effective Date, is a wholly owned Subsidiary of the
Company.
"Obligations" means, with respect to any Person, without duplication of
amounts and at any time any determination thereof is to be made, the aggregate
then outstanding amount of all obligations, indebtedness and liabilities of such
Person of every kind and character, including: (i) all obligations,
indebtedness, and liabilities arising under successive transactions renewing,
increasing, extending or continuing any indebtedness, changing the interest rate
or other terms thereof or creating new or additional indebtedness after prior
indebtedness has been in whole or in part satisfied; and (ii) all obligations,
indebtedness and liabilities, whether for principal, interest (including
interest that, but for the filing of a petition in bankruptcy with respect to
such Person, would have accrued on any such obligations, indebtedness or
liabilities), reimbursement obligations (including reimbursement obligations
with respect to letters of credit and guaranties), fees, costs, expenses,
premiums, charges, attorneys' fees, and indemnity obligations; in all cases,
whether previously, now or hereafter made, incurred, or created, whether
voluntarily or involuntarily and however arising, whether now due or due in the
future, whether absolute or contingent, whether liquidated or unliquidated,
whether determined or undetermined, whether such Person may be liable
individually or jointly with others, and whether recovery may be or hereafter
become barred by any statute of limitations or become otherwise unenforceable
for any reason whatsoever.
"Permitted Lien" means, with respect to all or any portion of the
Collateral, the Lien in favor of the Collateral Agent granted hereunder.
"Person" means any individual, corporation, partnership, association,
joint-stock company, limited liability company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"Pledged Shares" means 100% of the outstanding common stock of XX XX,
together with all related certificates, options or rights of any nature
whatsoever that may be issued or granted to the Company in respect of such
common stock while this Agreement is in effect.
"Proceeds" means all "proceeds" as such term is defined in Section 9306(l)
of the UCC in effect on the date hereof and, in any event, shall include all
payments or other income from the Pledged Shares, collections thereon or
distributions with respect thereto and all proceeds and amounts received in
respect of the Ancillary Rights.
"Rothschild" has the meaning set forth in the introductory
paragraph of this Agreement.
"Rothschild Amendment" has the meaning set forth in the recitals
hereof.
"Rothschild Documents" means, collectively, that certain Amended and
Restated Note Purchase Agreement, dated as of January 9, 1996, between the
Company and Rothschild, all outstanding notes issued pursuant thereto by the
Company in favor of Rothschild, and all agreements, documents and instruments
entered into in connection therewith (including the Rothschild Amendment).
"Rothschild Obligations" means the Obligations of the Company
owing under the Rothschild Documents.
"Securities Act" means the Securities Act of 1933, as amended.
"Secured Obligations" means, collectively, the Indenture
Obligations and the Rothschild Obligations.
"Secured Parties" means, collectively Rothschild and the Indenture
Trustee; provided that, from and after the date that any Secured Obligation has
been finally repaid in full, the term "Secured Parties" shall no longer include
the Person to whom such Secured Obligation was owed.
"Termination Date" means the date on which all Secured Obligations shall
have been finally repaid in full.
"Transaction Documents" means, collectively, the Indenture Documents and
the Rothschild Documents; provided that, from and after the date that all of the
Secured Obligations evidenced by any of the foregoing Transaction Documents are
finally repaid in full, the term "Transaction Documents" shall no longer include
such documents.
"UCC" means the Uniform Commercial Code from time to time in effect in the
State of New York.
(b) Certain Rules of Construction. Unless the context of this Agreement
clearly requires otherwise: (i) references to the plural include the singular
and to the singular include the plural; (ii) references to any gender include
any other gender; (iii) the words "include" and "including" are not limiting;
(iv) the word "or" has the inclusive meaning represented by the phrase "and/or";
(v) the words "hereof," "herein," "hereby" and "hereunder," and any other
similar words, refer to this Agreement as a whole and not to any particular
provision hereof; (vi) section, subsection, clause, exhibit and schedule
references are to this Agreement; and (vii) each term used herein that is
defined in Article 8 or Article 9 of the UCC has the meaning ascribed thereto in
the UCC. Section and subsection headings are for convenience of reference only,
shall not constitute a part of this Agreement for any other purpose and shall
not affect the construction of this Agreement. All exhibits and schedules
attached hereto are incorporated herein by this reference. Any reference herein
to this Agreement or any other agreement, document or instrument includes all
permitted alterations, amendments, changes, extensions, modifications, renewals
or supplements thereto or thereof, as applicable.
Section 2. Statements as to Outstanding Obligations; Amendments of
Documents.
(a) Current Obligations. As of the Effective Date (after crediting all
payments of principal and interest made on or before such date):
(i) Rothschild represents and warrants to the other Secured Party,
the Company and the Collateral Agent that the outstanding amount of the
Rothschild Obligations equals $511,446.21; and
(ii) The Indenture Trustee represents and warrants to the other
Secured Party, the Company and the Collateral Agent that the outstanding
amount of the Indenture Obligations equals $1,935,827.79.
(b) Future Statements of Obligations. Upon the reasonable request of the
Collateral Agent made at any time and from time to time hereunder, each Secured
Party shall provide the other Secured Party, the Company and the Collateral
Agent with a written statement as to the then outstanding principal amount of
the Secured Obligations owed to such Person, and such statement shall be
conclusive and binding on such Secured Party, absent manifest error.
(c) Amendments of Documents. Notwithstanding anything to the contrary
contained in the Indenture Documents and the Rothschild Documents, from and
after the Effective Date: (i) neither the Indenture Trustee nor the Company may
amend, modify or otherwise alter the Indenture Documents in any material respect
without the prior written consent of Rothschild; and (ii) neither Rothschild nor
the Company may amend, modify or otherwise alter the Rothschild Documents in any
material respect without the prior written consent of the Indenture Trustee.
Section 3. Appointment and Basic Duties of Collateral Agent.
(a) Appointment. Each Secured Party hereby appoints and authorizes the
Collateral Agent to act on its behalf with such powers as are specifically
delegated to the Collateral Agent by the terms of this Agreement, together with
such other powers as are reasonably incidental thereto, and the Collateral Agent
hereby accepts such appointment and agrees to perform the duties of the
Collateral Agent hereunder for the benefit of the Secured Parties.
(b) Ministerial Duties. The role of the Collateral Agent shall be
ministerial and shall consist of carrying out the will of the Directing Party in
accordance with the provisions of this Agreement, and the Collateral Agent shall
not, and shall not be deemed by any other party hereto to, be acting as, or
making the representations of, a broker. The Collateral Agent shall act or
refrain from acting solely in accordance with the instruction of the Directing
Party, provided that the Collateral Agent shall not be required to take any
action, or refrain from taking any action, if the Collateral Agent in good faith
believes that, in doing so or not doing so, it will not be adequately
indemnified, or that to do so (or not to do so) would violate applicable legal
or contractual duties or obligations of the Collateral Agent, or otherwise would
result in the imposition of liability upon the Collateral Agent. Any
instructions by the Directing Party to the Collateral Agent shall be in writing
and shall be sufficiently specific and explicit as to make compliance a
ministerial rather than a discretionary action. Such instructions shall include
not merely objectives but also the means to be used to achieve those objectives.
In carrying out its duties set forth herein, the parties hereto agree that: (i)
the Collateral Agent shall cause all Collateral to be held at all times in
segregated accounts identified as held for the benefit of the Secured Parties
and none of the Collateral shall be commingled with any other assets at any time
held by the Collateral Agent; and (ii) unless otherwise agreed, the Directing
Party, the Secured Parties and the Company shall give the Collateral Agent all
notices, instructions or directions in connection herewith in writing.
(c) Agreement of Collateral Agent and Secured Parties Respecting XX XX.
Notwithstanding anything to the contrary contained herein, in the Transaction
Documents or in any other agreement, document or instrument entered into in
connection with the foregoing, each of the Secured Parties and the Collateral
Agent agrees that, irrespective of whether any such Person has become the
registered owner of the Pledged Shares in accordance with the provisions hereof,
no such Person will: (i) take any action that would cause XX XX to breach any of
its covenants in respect of any of its material contracts or agreements; or (ii)
prior to the date that is one year and one day after the final repayment in full
of all obligations owed under any material agreement or contract of XX XX, file
any involuntary petition or otherwise institute any bankruptcy, reorganization,
insolvency or liquidation proceeding or other proceeding under any federal or
state bankruptcy or similar law against XX XX or cause XX XX to institute any
such proceeding.
Section 4. Pledge; Grant of Security Interest; Collateral
Maintenance.
(a) Grant of Security Interest. On and as of the Effective Date, the
Company hereby grants to the Collateral Agent, for the equal and ratable benefit
of the Secured Parties, a first priority security interest in the Collateral, as
collateral security for the prompt payment and performance when due (whether at
the stated maturity, by acceleration or otherwise) of the Secured Obligations.
(b) Delivery of Collateral. On the Effective Date, the Company shall
deliver to the Collateral Agent, on behalf of all Secured Parties, all
certificates evidencing the Pledged Shares, together with stock powers in blank
fully executed by the Company in respect of the Pledged Shares. In addition, on
the Effective Date, the Company shall cause XX XX to execute and deliver to
Daiwa Finance Corporation an irrevocable instruction letter in the form attached
hereto as Exhibit B, and thereafter, the Company shall cause XX XX to execute
and deliver to such other party as the Directing Party shall reasonably request,
an irrevocable instruction letter in substantially the form attached hereto as
Exhibit B.
(c) Duty of Collateral Agent Respecting the Collateral. The Collateral
Agent shall hold and safeguard the Collateral for the benefit of the Secured
Parties as provided herein, provided that its sole duty with respect to the
custody, safekeeping and physical preservation of the Collateral in its
possession, under Section 9207 of the UCC or otherwise, shall be to deal with it
in the same manner as the Collateral Agent deals with similar securities and
property for its own account, provided further that the Collateral Agent shall
have no obligation to invest funds held hereunder.
(d) Collateral Agent as Secured Party. The Collateral Agent shall be named
as the secured party and lienholder in its capacity as the Collateral Agent for
the benefit of Secured Parties on each UCC-1 financing statement pertaining to
the Collateral. Except as otherwise expressly permitted hereby and
notwithstanding anything to the contrary contained in any Transaction Document,
all security interests in and liens upon the Collateral in favor of the Secured
Parties shall be administered solely by the Collateral Agent, acting in a
ministerial capacity on behalf of the Secured Parties in accordance with the
terms hereof. From and after the date of this Agreement, all material decisions
with respect to the taking and perfection of security interests in and liens
upon the Collateral shall be approved by the Directing Party, but the Collateral
Agent and its counsel shall be responsible for the ministerial details of
implementing the decisions of the Directing Party. Notwithstanding anything to
the contrary contained herein, during the term of this Agreement, the Collateral
Agent: (i) is and will be acting on behalf of the Secured Parties as a
securities intermediary under Article 8 of the UCC and a "bailee" (as such term
is used in Section 9305) of the UCC in connection herewith; (ii) shall maintain
all Collateral in the name of, and for the benefit of, the Secured Parties as
the holders of security interests in and liens upon the Collateral; (iii) shall
treat all of the assets held by it as financial assets under Article 8 of the
UCC; (iv) shall not hold, or exercise control (within the meaning of Article 8
of the UCC) over, all or any portion of the Collateral for the benefit of any
other Person; (v) has received notice of each Secured Party's interest in the
Collateral; and (vi) shall take instructions only from the Directing Party
(without any consent of the Company) with respect to the Collateral.
(e) Execution of Financing Statements. Pursuant to Section 9402 of the
UCC, the Company authorizes the Collateral Agent (without imposing any
obligation on the part of the Collateral Agent) to file financing statements
with respect to the Collateral without the signature of the Company in such form
and in such filing offices as the Directing Party reasonably determines
appropriate to perfect the security interests of the Collateral Agent under this
Agreement. A carbon, photographic or other reproduction of this Agreement shall
be sufficient as a financing statement for filing in any jurisdiction.
(f) Maintenance of Collateral. To the extent expressly directed by the
Directing Party (and subject to all of the Collateral Agent's indemnification
and other rights with respect to the Directing Party), the Collateral Agent
shall take the steps designated by the Directing Party to administer, protect or
otherwise deal with the Collateral.
(g) Voting Rights. Subject to Section 12(d)(ii), the organizational
documents of XX XX and the terms and conditions of the Transaction Documents,
the Company shall be permitted to exercise all voting rights with respect to the
Pledged Shares; provided that no vote shall be cast or corporate right exercised
or other action taken that could reasonably be expected to impair all or any
portion of the Collateral or the Secured Obligations or that would be
inconsistent with or result in any violation of any provision of the Transaction
Documents or this Agreement.
Section 5. Collateral Agent's Appointment as Attorney-in-Fact.
The Company hereby irrevocably constitutes and appoints the Collateral
Agent and any officer or agent of the Collateral Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Company and in the name of the
Company or in the Collateral Agent's own name, at the direction of the Directed
Party, for the purpose of carrying out the terms of this Agreement and to take
any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Agreement, including any financing statements, endorsements, assignments or
other instruments of transfer. All powers, authorizations and agencies contained
in this Section, being coupled with an interest, are irrevocable until the
Termination Date.
Section 6. Representations and Warranties of the Company.
The Company represents and warrants to the Collateral Agent, for the
benefit of the Secured Parties, as follows (which representations and warranties
shall be true and correct at all times during the term hereof):
(a) Chief Executive Office. Except to the extent the Company has provided
notice to the contrary in accordance with Section 7(a), the Company's chief
executive office is located at 000 00xx Xxxxxx, Xxxxx 0000X, Xxxxxx, Xxxxxxxx
00000.
(b) Merger of XX XX. On or before the Effective Date, XX XX shall have
merged (the "Merger") with MF III, with XX XX (i) being the surviving
corporation and (ii) among other things, acquiring all the assets, and assuming
all of the Obligations, of MF III. The Merger does not violate any provisions of
any law or any order of any court or governmental authority or agency and does
not conflict with, violate or result in any breach of the terms, conditions or
provisions of, or constitute a default under the organizational documents of MF
III or XX XX or any indenture or other material agreement or instrument to which
either MF III or XX XX is a party or by which either MF III or XX XX may be
bound or result in the imposition of any liens or encumbrances on any property
of XX XX (other than those in existence on the date hereof in favor of Daiwa
Finance Corporation).
(c) Pledged Shares. The Pledged Shares (i) constitute all of the common
stock of XX XX and (ii) have been duly and validly issued and are fully paid and
non-assessable.
(d) Ownership. The Company is the record and beneficial owner of, and has
good and marketable title to, the Pledged Shares, free of any and all Liens or
options in favor of, or claims of, any other Person, except Permitted Liens.
Section 7. Covenants of the Company.
The Company covenants and agrees with the Collateral Agent, for the
benefit of the Secured Parties, that, from and after the date of this Agreement
until the Termination Date:
(a) Change of Chief Executive Office, Name, Identity or Structure. The
Company will not, unless it shall have given the Collateral Agent and each
Secured Party at least 30 days prior written notice of such change, (i) change
the location of its chief executive office from that specified in paragraph 5(a)
or (ii) change its name, identity or corporate structure to such an extent that
any financing statement filed by the Collateral Agent in connection with this
Agreement would become seriously misleading.
(b) Trust Arrangement. If the Company shall, as a result of its ownership
of the Collateral, become entitled to receive or shall receive any certificate,
option or rights, whether in addition to, in substitution of, as a conversion
of, or in exchange for the Collateral, or otherwise in respect thereof, the
Company shall accept the same as the agent of the Collateral Agent, hold the
same in trust for the Collateral Agent and deliver the same forthwith to the
Collateral Agent in the exact form received, duly endorsed by the Company to the
Collateral Agent, to be held by the Collateral Agent, subject to the terms
hereof, as additional collateral security for the Secured Obligations; provided
that the Company shall direct that all amounts or property paid or to be paid
upon or in respect of the Collateral shall be paid to the Collateral Agent for
the benefit of the Secured Parties to be applied to the repayment of the Secured
Obligations as provided herein. If any money or property so paid or distributed
in respect of the Collateral shall be received by the Company, the Company
shall, until such money or property is paid or delivered to the Collateral
Agent, hold such money or property in trust for the Collateral Agent, segregated
from other funds of the Company, as additional collateral security for the
Secured Obligations.
(c) Sales; Liens; Restrictive Agreements. Without the prior written
consent of the Collateral Agent, the Company will not (i) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with respect
to, the Collateral, (ii) create, incur or permit to exist any Lien, option or
claim in favor of any Person on or with respect to all or any portion of the
Collateral, except for Permitted Liens or (iii) enter into any agreement or
undertaking restricting the right or ability of the Company or the Collateral
Agent to sell, assign or transfer all or any portion of the Collateral.
(d) Further Assurances. At any time and from time to time, upon the
written request of the Collateral Agent, and at the sole expense of the Company,
the Company will promptly and duly execute and deliver such further instruments
and documents and take such further actions as the Collateral Agent may
reasonably request for the purposes of obtaining or preserving the full benefits
of this Agreement and of the rights and powers herein granted. If any amount
payable under or in connection with any of the Collateral shall be or become
evidenced by any promissory note, other instrument or chattel paper, such note,
instrument or chattel paper shall be immediately delivered to the Collateral
Agent, duly endorsed in a manner satisfactory to the Collateral Agent, to be
held as Collateral pursuant to this Agreement.
(e) Taxes and Other Charges. The Company shall pay, and save the
Collateral Agent harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales or other
taxes which may be payable or determined to be payable with respect to all or
any portion of the Collateral or in connection with any of the transactions
contemplated by this Agreement.
(f) No Further Issuances. Without the prior written consent of the Secured
Parties, the Company shall not cause XX XX to issue any additional shares of
capital stock or instruments convertible into, or options for the purchase of,
the same.
(g) Certain Prohibited Actions. The Company shall not: (i) take any action
that would cause XX XX to breach any of its covenants in respect of any of its
material contracts or agreements; or (ii) prior to the date that is one year and
one day after the final repayment in full of all obligations owed under any
material agreement or contract of XX XX, file any involuntary petition or
otherwise institute any bankruptcy, reorganization, insolvency or liquidation
proceeding or other proceeding under any federal or state bankruptcy or similar
law against XX XX or cause XX XX to institute any such proceeding.
Section 8. Representations and Warranties of All Parties.
Each of the parties hereto represents and warrants to the other parties
hereto as follows:
(a) Authority. Such Person has full corporate power, authority and legal
right to enter into this Agreement and the other agreements entered into in
connection herewith to which such Person is a party. The execution and delivery
by such Person of this Agreement and the agreements entered into in connection
herewith to which such Person is a party: (i) have been duly authorized by all
necessary corporate action on the part of such Person; (ii) are not in
contravention of the terms of the organizational documents of such Person or of
any indenture, agreement or undertaking to which such Person is a party or by
which such Person or any of its property is bound; (iii) do not and will not
require any governmental consent, registration or approval; (iv) do not and will
not contravene any contractual or governmental restriction to which such Person
or any of its property may be subject; and (v) do not and will not, except as
contemplated herein, result in the imposition of any lien, charge, security
interest or encumbrance upon any property of such Person under any existing
indenture, mortgage, deed of trust, loan or credit agreement or other material
agreement or instrument to which such Person is a party or by which such Person
or any of its property may be bound or affected.
(b) Binding Effect. This Agreement and all of the other agreements entered
into by such Person in connection herewith have been duly executed and delivered
by such Person, are the legal, valid and binding obligations of such Person and
are enforceable against such Person in accordance with their respective terms,
subject to applicable bankruptcy, reorganization, receivership, conservatorship,
insolvency, moratorium and other laws relating to or affecting creditors' rights
generally or the rights of creditors of banks and to the general principles of
equity (whether such enforceability is considered in a proceeding in equity or
at law).
Section 9. No Limitation Intended.
Except as set forth in Section 10, each Secured Party reserves any rights,
Liens and other interests it may have against the Company under the Transaction
Documents to which it is a party.
Section 10. Priorities.
Notwithstanding anything to the contrary contained in the Transaction
Documents and notwithstanding the time of granting of any Liens in favor of any
Secured Party, or the time of filing or recording of any financing statements,
fixture filings, or assignments or other notices under the UCC or any other
applicable law:
(a) Secured Parties Pari Passu. The Liens and beneficial rights of the
Secured Parties in and to the Collateral shall be pari passu. In this regard:
(i) no Secured Party shall enforce or otherwise apply its Lien in, or
otherwise attempt to realize upon, any Collateral until the date that is
five (5) business days following the delivery of written notice of its
intention to so enforce or apply such Lien to the other Secured Party in
compliance with Section 15(d); and
(ii) upon the delivery of written notice as required in clause (i)
above, each Secured Party shall share (unless such sharing is prohibited
by applicable law), on a pro rata basis according to its Applicable
Percentage, in the net proceeds of the sale or other disposition of, or
any realization upon, any Collateral.
(b) Other Priorities. Except as otherwise specifically provided herein,
the priority of the Lien of each Secured Party in the assets of the Company and
in the Collateral shall be determined in accordance with the provisions of the
UCC or other applicable law.
Section 11. Waiver of Marshaling.
Except as specifically set forth herein, each of the Secured Parties
hereby specifically waives and renounces any rights which it may have, whether
at law or in equity, to require any party hereto to marshal any collateral it
may hold, or any portion thereof or otherwise to require any other party to seek
satisfaction from any particular Person.
Section 12. Application of Payments; Rights of the Collateral
Agent; Remedies.
(a) Receipt of Moneys and Property. The Collateral Agent shall receive all
amounts paid to it or property received by it in respect of the Collateral
(including Proceeds) in trust (as collateral security on account of all of the
Secured Obligations) for the benefit of the Secured Parties and shall distribute
the foregoing solely as provided in Section 12(b).
(b) Priority of Distributions. Irrespective of whether an Event of Default
shall have occurred and be continuing, the Collateral Agent shall distribute all
monies paid to it or property received by it in respect of the Collateral
(including Proceeds) in the following order of priority:
(i) first, to the Collateral Agent, on account of any fees, costs and
expenses (including reasonable attorneys' fees, costs and expenses)
incurred by it in connection with the performance of its obligations
hereunder as directed by the Directed Party;
(ii) next, to each Secured Party, pro rata in accordance with its
respective Application Percentage, until the Secured Obligations have been
reduced to zero; and
(iii)finally, to the Company, any remainder.
(c) Default Notices. Upon the occurrence of an Event of Default, the
applicable Secured Party shall deliver to the Collateral Agent a Default Notice,
with a copy to each other Secured Party and the Company. Such Secured Party
shall rescind such Default Notice upon the earlier of: (i) the waiver or cure of
the Event(s) of Default referred to in such Default Notice in accordance with
the provisions of the related Transaction Document; and (ii) the final repayment
in full of the Secured Obligations related to such Transaction Document.
(d) Rights Following Default Notice. On and after the date of receipt of a
Default Notice delivered pursuant to the terms hereof:
(i) The Collateral Agent may, and at the direction of the Directing
Party shall, exercise, in addition to all other rights and remedies
granted in this Agreement and in any other instrument or agreement
securing, evidencing or relating to the Secured Obligations, all rights
and remedies of a secured party under the UCC. Without limiting the
generality of the foregoing, the Collateral Agent, without demand of
performance or other demand, presentment, protest, advertisement or notice
of any kind (except any notice required by law referred to below) to or
upon the Company or any other Person (all and each of which demands,
defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, or may forthwith sell, assign, give
option or options to purchase or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing),
in one or more parcels at public or private sale or sales, in the
over-the-counter market, at any exchange, broker's board or office of the
Collateral Agent or elsewhere upon such terms and conditions as it may
deem advisable and at such prices as it may deem best, for cash or on
credit or for future delivery without assumption of any credit risk, all
as fiduciary for the Secured Parties. The Collateral Agent, any Secured
Party and any holder of any of the Secured Obligations (and any affiliate
of any of the foregoing) shall have the right upon any such public sale or
sales, and, to the extent permitted by law, upon any such private sale or
sales, to purchase the whole or any part of the Collateral so sold, free
of any right or equity of redemption in the Company, which right or equity
is hereby waived or released. The Collateral Agent shall apply any
Proceeds from time to time held by it and the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale (after
deducting all reasonable costs and expenses of every kind incurred in
respect thereof or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or its rights of the
Collateral Agent hereunder, including reasonable attorneys' fees, costs
and expenses of counsel to the Collateral Agent), to the payment in whole
or in part of the Secured Obligations, in accordance with Section 12(b),
and only after such application and after the payment by the Collateral
Agent of any other amount required by any provision of law, including
Section 9504(l)(c) of the UCC, need the Collateral Agent account for the
surplus, if any, to the Company. To the extent permitted by applicable
law, the Company waives all claims, damages and demands it may acquire
against the Collateral Agent or any Secured Party arising out of the
exercise by the Collateral Agent of any rights hereunder. If any notice of
a proposed sale or other disposition of Collateral shall be required by
law, such notice shall be deemed reasonable and proper if given at least
10 days before such sale or other disposition.
(ii) All Pledged Shares may and, at the direction of the Directing
Party, shall be registered in the name of the Collateral Agent or its
nominee, and the Collateral Agent or its nominee may thereafter exercise
(A) all voting and other rights pertaining to the Pledged Shares at any
meeting of shareholders of XX XX or otherwise and (B) all rights,
privileges or options pertaining to the Collateral as if it were the
absolute owner thereof (including upon the exercise by the Company, at the
direction of the Collateral Agent, or the Collateral Agent of any right,
privilege or option pertaining to the Collateral, and, in connection
therewith, the right to deposit and deliver all or any portion of the
Collateral with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and conditions as the Collateral
Agent may determine), all without liability (to the extent permitted by
law) except to account for property actually received by it, provided that
the Collateral Agent shall have no duty to the Company to exercise any
such right, privilege or option and shall not be responsible for any
failure to do so or delay in so doing. To permit the Collateral Agent to
exercise the voting and other rights which it is entitled to exercise
pursuant to this Section, the Company shall, if necessary, upon written
demand therefor by the Collateral Agent, from time to time execute and
deliver (or cause to be executed and delivered) to the Collateral Agent
all such proxies, payment orders and other instruments as the Collateral
Agent may reasonably request.
(iii)The Company recognizes that the Collateral Agent may be unable
to effect a public sale of any or all of the Collateral, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or
more private sales thereof to a restricted group of purchasers which will
be obliged to agree, among other things, to acquire such securities for
their own account for investment and not with a view to the distribution
or resale thereof. The Company acknowledges and agrees that any such
private sale may result in prices and other terms less favorable than if
such sale were a public sale and, notwithstanding such circumstances,
agrees that any such private sale shall be deemed to have been made in a
commercially reasonable manner. The Collateral Agent shall be under no
obligation to delay a sale of any of the Collateral for the period of time
necessary to permit XX XX or the Company to register such securities for
public sale under the Securities Act, or under applicable state securities
laws, even if XX XX or the Company would agree to do so.
(iv) The Company further agrees to use its best efforts to do or
cause to be done all such other acts as may be necessary to make such sale
or sales of all or any portion of the Collateral pursuant to this Section
valid and binding and in compliance with any and all other applicable
requirements of law. The Company further agrees that a breach of any of
the covenants contained in this Section will cause irreparable injury to
the Secured Parties and that the Secured Parties have no adequate remedy
at law in respect of such breach and, as a consequence, that each and
every covenant contained in this Section shall be specifically enforceable
against the Company, and the Company hereby waives and agrees not to
assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default had occurred and
was continuing at the time that the Collateral Agent gave notice or took
any action pursuant to this Section.
(e) No Condition to Exercise Rights. The rights of the Collateral Agent
hereunder shall not be conditioned or contingent upon the pursuit by the
Collateral Agent of any right or remedy against XX XX or against any other
Person which may be or become liable in respect of all or any part of the
Secured Obligations or against any collateral security therefor, guarantee
thereof or right of offset with respect thereto. The Collateral Agent shall not
be liable for any failure to demand, collect or realize upon all or any part of
the Collateral or for any delay in doing so, nor shall the Collateral Agent be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of the Company or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof.
(f) Distributions by Wire Transfer. All distributions of amounts required
to be made by the Collateral Agent to any Person hereunder shall be made by wire
transfer of immediately available funds in accordance with the wire instructions
set forth in Section 15(d).
Section 13. The Collateral Agent.
(a) Merger. Any Person into which the Collateral Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Collateral Agent shall be a
party, or any Person succeeding to all or substantially all of the corporate
trust business of the Collateral Agent shall be the successor of the Collateral
Agent hereunder without any further act on the part of any party hereto.
(b) Removal; Resignation.
(i) The Directing Party may at any time remove and discharge the
Collateral Agent or any successor to the Collateral Agent thereafter
appointed from the performance of its duties under this Agreement by
written notice from the Directing Party to the Collateral Agent or any
successor to the Collateral Agent, as applicable, with a copy to each
other Secured Party and the Company. Such removal shall take effect upon
the appointment of a successor to the Collateral Agent by the Secured
Parties, which successor shall be a bank or trust company acceptable to
each Secured Party and the Company, which approval shall not be
unreasonably withheld.
(ii) The Collateral Agent or any successor to the Collateral Agent
may resign at any time by giving thirty (30) days prior written notice to
each other party hereto. Such resignation shall take effect upon the
appointment of a successor to the Collateral Agent by the Secured Parties,
which successor shall be a bank or trust company acceptable to each
Secured Party and the Company, which approval shall not be unreasonably
withheld.
(iii)Each of the parties hereto agrees that it shall cooperate with
the other parties hereto in connection with the appointment of a
replacement for the Collateral Agent.
(c) Representations and Warranties. The Collateral Agent represents and
warrants that: (i) it is a banking corporation, duly organized, validly existing
and in good standing under the laws of the State of New York and has the power
and authority to own it assets and transact the business in which it is
presently engaged; (ii) it has the full power and authority to execute, deliver
and perform and to enter into and consummate all transactions contemplated by
this Agreement, has duly authorized the execution, deliver and performance of
this Agreement; (iii) the consummation of the transactions contemplated hereby,
and the fulfillment of the terms hereof will not conflict with, result in any
breach of nor constitute a default under, the articles of association or by-laws
of the Collateral Agent, or any indenture, agreement, or other instrument to
which the Collateral Agent is a party or by which it shall be bound, nor violate
any law or any order, rule or regulation applicable to the Collateral Agent;
(iv) all approval, licenses, authorization, consents, orders or other actions or
registrations with any person or any governmental body or official required to
be obtained on or prior to the date hereof in connection with the execution and
delivery of this Agreement and the performance of the terms hereof have been
obtained; (v) it is a trust company which regularly accepts in the ordinary
course of business securities of the same type as the Collateral as custodial
service for customers and maintains in the State of New York securities accounts
for its customers; and (vi) it is not a clearing corporation or a broker.
Section 14. Limitation of Liability; Indemnification; Compensation.
(a) Limitation of Liability. The Collateral Agent may conclusively rely on
and shall be protected in acting upon any certificate, instrument, opinion,
notice, letter, facsimile, telegram or other document delivered to it and which
in good faith it believes complies with the terms of this Agreement. The
Collateral Agent may rely conclusively on and shall be protected in acting upon
the written instructions of any designated officer of the Directing Party or,
following the final payment in full of the Secured Obligations, the Company. In
addition, the Collateral Agent may consult counsel satisfactory to it and the
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with the opinion of such counsel. The Collateral Agent
shall not be liable for any error of judgment, or for any act done or step taken
or omitted by it, in good faith, or for any mistakes of fact or law, or for
anything which it may do or refrain from doing in connection herewith, except in
the case of its gross negligence or willful misconduct.
(b) No Independent Obligation. The Collateral Agent shall not be required
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder; provided that the foregoing shall
not limit the obligations that the Collateral Agent has expressly agreed to
perform and observe hereunder.
(c) Indemnification by Directing Party. The Directing Party shall
indemnify and hold the Collateral Agent harmless from and against any and all
liabilities, damages, losses, and fees, costs and expenses (including reasonable
attorneys' fees, costs and expenses) incurred by the Collateral Agent as a
result of any action taken by the Collateral Agent either in the performance of
its duties hereunder or at the direction of the Directing Party, or in
connection with any legal proceedings relating to the performance of its duties
hereunder, unless such liabilities, damages, losses, or fees, costs and expenses
arise from the Collateral Agent's gross negligence or willful misconduct. The
Collateral Agent's rights to indemnification shall survive the termination of
this Agreement.
Section 15. General Provisions.
(a) Term and Termination. Following the Effective Date, this Agreement
shall terminate upon the earliest to occur of: (i) upon written notice of
termination from the Company and each Secured Party to the Collateral Agent; and
(ii) following the final repayment in full of the Secured Obligations, upon
written notice of termination from the Company to the Collateral Agent. Upon
termination of this Agreement, the Collateral Agent shall execute and deliver
to, or at the direction of, the Company and, if terminated pursuant to clause
(ii) above, each Secured Party or, if terminated pursuant to clause (iii) above,
the Company, such documents and instruments as the Company and any other such
terminating party may require in order to effect such termination and release of
the Collateral Agent's role on behalf of such Person hereunder. Except as
otherwise expressly permitted hereby, the Collateral Agent shall not release all
or any portion of the Collateral until all of the Secured Obligations have been
paid in full.
(b) Modification and Amendment. This Agreement shall not be amended or
modified except by a writing executed and delivered by all of the parties
hereto.
(c) Effect of Bankruptcy. This Agreement shall remain in full force and
effect notwithstanding the filing of a petition for relief by or against the
Company under any federal or state bankruptcy or other similar law.
(d) Notices. Unless otherwise specifically provided, all notices,
requests, consents and demands and other communications required under this
Agreement or pursuant to any other instrument or document delivered hereunder
shall be in writing and may be delivered by overnight (next-day) delivery, or by
telegram, or by facsimile transmission (with an original forwarded thereafter by
first class mail), or by registered or certified mail, postage prepaid, return
receipt requested, or personally, at the addresses specified below (unless
changed by the particular party whose address is stated herein by similar notice
in writing to all other parties hereto). All such notices, requests, consents
and demands and other communications shall, when delivered by overnight
(next-day) delivery or telegram, or faxed, be effective when delivered for
overnight (next-day) delivery or telegram, or transmitted in legible form by
facsimile machine, respectively, or if mailed, upon the third business day after
the date deposited into the U.S. mail, or if delivered, upon delivery. Each
party's address is:
(i) the Company: MF Receivables Holding Corp.
000 00xx Xxxxxx, Xxxxx 0000X
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
Wire Instructions:
Guaranty Bank and Trust
ABA Number: 000000000
For the account of: MF Receivables
Holding Corp.
Account Number: 0000000
with a copy to: Monaco Finance, Inc.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
with a copy to: Pacific USA Holdings Corp.
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
(ii) Rothschild: Rothschild North America, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Fax: (000) 000-0000
Wire Instructions:
Xxxxxx Guaranty Trust Company
ABA Number: 000000000
For account of: Rothschild North
America, Inc.
A/C: 00045181
(iii)the Indenture Trustee: Norwest Bank Minnesota,
National Association
0xx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Corporate Trust Group
Fax: (000) 000-0000
Wire Transfer Instructions:
Norwest Bank Minnesota, National
Association
ABA Number: 000000000
Corp. Trust Clearing Account Number:
0000000000
For further credit: Account Number:
00000000
(iv) the Collateral Agent: The Bank of New York
000 Xxxxxxx Xxxxxx, 00X
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx, Vice President,
Corporate Trust
Fax: (000) 000-0000
Wire Instructions:
The Bank of New York
ABA #: 000000000
REF GLA 111565
A/C 245267
A/C Name MF Receivables Holding
Attn: Xxxxx Xxxxxx
(e) Counterparts; Effectiveness.
(i) This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts (including by
facsimile transmission), and all of such counterparts taken together shall
be deemed to constitute one and the same instrument.
(ii) This Agreement shall become effective as of the date (the
"Effective Date") upon which all of the following conditions have been
satisfied: (A) the execution and delivery of this Agreement by all of the
parties hereto; (B) the delivery by the Company to the Collateral Agent,
on behalf of the Secured Parties, of (1) all certificates evidencing the
Pledged Shares, together with stock powers in blank fully executed by the
Company in respect of the Pledged Shares and (2) a UCC-1 Financing
Statement pertaining to the Collateral; (C) the delivery by the Company to
the Secured Parties of an opinion or opinions of counsel, in form and
substance reasonably satisfactory to the Secured Parties, as to (1) the
beneficial ownership of record of the Pledged Shares, (2) the creation,
validity and perfection of the security interest of the Collateral Agent
in the Pledged Shares and (3) the substantive non-consolidation of Monaco
and the Company under federal bankruptcy law; (D) the payment to the
Collateral Agent of the fees to be paid on the Effective Date pursuant to
agreement between the Company and the Collateral Agent; (E) the delivery
of written notice by the Indenture Trustee to all of the other parties
hereto that all of the conditions to the effectiveness of the Indenture
Amendment have been satisfied in accordance with the terms of the
Indenture Amendment (other than the effectiveness of this Agreement); and
(F) the delivery of written notice by Rothschild to the other parties
hereto that all of the conditions to the effectiveness of the Rothschild
Amendment have been satisfied in accordance with the terms of the
Rothschild Amendment (other than the effectiveness of this Agreement).
(f) Severability of Provisions. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(g) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns.
(h) No Waiver. The failure of any party herein to enforce any rights it
has under this Agreement against any other party at any time shall not be deemed
a waiver of its right to enforce such rights at any other or future time.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS (AS OPPOSED TO CONFLICT OF LAWS
PROVISIONS) OF THE STATE OF NEW YORK.
[Document continues with signature page.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first written above.
MF RECEIVABLES HOLDING CORP.
By:
Name:
Title:
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Indenture Trustee
By:
Name:
Title:
ROTHSCHILD NORTH AMERICA, INC.
By:
Name:
Title:
THE BANK OF NEW YORK, as
Collateral Agent
By:
Name:
Title:
CONSENTED AND AGREED:
A-2
3360.03/Pledge&Custodial
BDC PARTNERS, I, L.P.
By: BLACK DIAMOND CAPITAL MANAGEMENT, L.L.C.
Title: General Partner
By:
Name:
Title:....
XXXXXX FINANCIAL, INC.
By:
Name:
Title:
EXHIBIT A
FORM OF DEFAULT NOTICE
[date]
The Bank of New York,
as Collateral Agent
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Xx.
Ladies and Gentlemen:
Reference is made to that certain Pledge and Custodial Agreement, dated as
of July 28, 1999 (the "Pledge and Custodial Agreement"), among MF Receivables
Holding Corp., Norwest Bank Minnesota, National Association, as Indenture
Trustee, Rothschild North America, Inc., and you, as collateral agent. In
accordance with the provisions of the Pledge and Custodial Agreement, this
notice will serve to confirm that: (a) the undersigned is a "Secured Party"
under the Pledge and Custodial Agreement; (b) an Event of Default under the
[Indenture/Rothschild] Documents has occurred and is continuing; and (c) this
letter constitutes a "Default Notice" for all purposes under the Pledge and
Custodial Agreement.
Very truly yours,
[SECURED
PARTY]
By:__________________________________
Name:
Title:
cc: MF Receivables Holding Corp.
[Each other Secured Party]
B-1
Pledge&Custodial
EXHIBIT B
FORM OF IRREVOCABLE INSTRUCTION LETTER
July 28, 1999
Daiwa Finance Corporation
00 Xxx Xxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Re: MF Receivables Corp. IV
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement,
dated as of July 28, 1999, and that certain Amended and Restated Credit
Agreement, dated as of July 28, 1999 (collectively, the "Daiwa Agreements"),
each among the MF Receivables Corp. IV, a Delaware corporation ("XX XX"), Monaco
Finance, Inc., a Colorado corporation ("Monaco"), and Daiwa Finance Corporation.
Capitalized terms used but not otherwise defined herein have the meanings
ascribed thereto in the Daiwa Agreements. Pursuant to the provisions of the
applicable Program Documents (and, in particular, the Security Agreements), you,
or the Servicer (as that term is defined in the Daiwa Agreements) at your
direction, are required to disburse certain funds or release assets to or upon
the order of XX XX (any such property, the "Specified Property") in accordance
with the instructions delivered under the Security Agreements and/or the
Servicing Agreements.
This letter hereby constitutes irrevocable notice to you that all
Specified Property payable or deliverable to or upon the order of XX XX
(including any and all money and property to which XX XX is entitled in
accordance with the Program Documents) is to be paid or delivered solely in
accordance with the instructions provided by The Bank of New York, as collateral
agent (in such capacity, the "Collateral Agent"), under that certain Pledge and
Custodial Agreement, dated as of July 28, 1999 (the "Pledge and Custodial
Agreement"), among MF Receivables Holding Corp. ("Pacific"), Norwest Bank
Minnesota, National Association, as Indenture Trustee (as defined therein),
Rothschild North America, Inc. and Collateral Agent. Such Specified Property
represents dividends payable on account of the MF IV's outstanding shares of
common stock.
These instructions are irrevocable and shall not be revised without the
prior written consent of the Collateral Agent, unless the Collateral Agent has
notified you otherwise in writing, and shall be binding on you and your
successors and assigns.
Very truly yours,
MF RECEIVABLES CORP. IV
By:
Name:
Title:
THE BANK OF NEW YORK, as Collateral Agent
By: _______________________________
Name:
Title:
ACKNOWLEDGED AND AGREED:
DAIWA FINANCE CORPORATION
By: _______________________________
Name:
Title:
