Exhibit 4(E)
COMPANY PLEDGE AGREEMENT
This Company Pledge Agreement dated as of March 23, 1999 (this
"Agreement"), is made by MFN Financial Corporation, a Delaware corporation (the
"Company"), in favor of Norwest Bank Minnesota, National Association, as trustee
for Holders under the Indenture described below (in such capacity, the
"Trustee").
PRELIMINARY STATEMENTS:
1. The Company is a party to the Indenture of even date with this
Agreement (as amended, restated, supplemented or otherwise modified from time to
time, the "Indenture"), with the Trustee, under which the Company will issue its
senior secured notes to the holders thereof and their successors and assigns.
2. It is a condition precedent to the issuance of the senior secured
notes that the Company enter into this Agreement and grant to the Trustee, for
the benefit of itself and the holders of such senior secured notes the security
interests provided in this Agreement to secure the obligations of the Company
described below.
AGREEMENT:
In consideration of the mutual agreements, provisions, covenants and
for other valuable consideration, the sufficiency of which is acknowledged, the
Company agrees as follows:
SECTION 1. DEFINITIONS; INTERPRETATION
1.1 TERMS DEFINED IN THE INDENTURE. Unless otherwise defined in this
Agreement, capitalized terms used in this Agreement and not otherwise defined
have the meanings given to such terms from time to time in the Indenture.
1.2 CERTAIN DEFINED TERMS. As used in this Agreement, the following
terms have the following meanings:
"Agreement" has the meaning set forth in the preamble.
"Collateral" is defined in Section 2.1.
"Company" has the meaning set forth in the preamble.
"Distributions" means all stock dividends, liquidating
dividends, shares of stock resulting from (or in connection with the
exercise of) stock splits, reclassifications, warrants, options,
non-cash dividends, mergers, consolidations, and all other
distributions (whether similar or dissimilar to the foregoing) on or
with respect to any Pledged Shares or other shares of capital stock
constituting Collateral, but shall not include Dividends.
"Dividends" means cash dividends and cash distributions with
respect to any Pledged Shares or other Pledged Property made in the
ordinary course of business and not a liquidating dividend.
"Indenture" has the meaning set forth in the first
preliminary statement.
"Insolvency Default" means a Default under Section
9.01(a)(vii) or Section 9.01(a)(viii) of the Indenture.
"Pledged Property" means all Pledged Shares and all other
pledged shares of capital stock, all assignments of any amounts due or
to become due, all other instruments which are now being delivered by
the Company to the Trustee or may from time to time hereafter be
delivered by the Company to the Trustee for the purpose of pledge under
this Agreement or any other Transaction Document, and all proceeds of
any of the foregoing.
"Pledged Share Issuer" means each Person identified in
Schedule I as the issuer of the Pledged Shares identified opposite the
name of such Person; it being agreed that no insurance company shall be
a Pledged Share Issuer.
"Pledged Shares" means all shares of capital stock of any
Pledged Share Issuer.
"Company" is defined in the preamble.
"Transaction Documents" means the Indenture, the Collateral
Security Documents and any and all other agreements, instruments and
documents executed or delivered in connection therewith.
"Trustee" has the meaning set forth in the preamble.
"UCC" means the Uniform Commercial Code as the same may, from
time to time, be in effect in the State of New York; provided, in the
event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of the security interest in any
Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, the term "UCC" shall
mean the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such
attachment, perfection or priority and for purposes of definitions
related to such provisions.
1.3 TERMS DEFINED IN UCC. Where applicable and except as otherwise
defined herein, terms used in this Agreement shall have the meanings assigned to
them in the UCC.
SECTION 2. PLEDGE
2.1 GRANT OF SECURITY INTEREST. The Company pledges, hypothecates,
assigns, charges, mortgages, delivers, and transfers to the Trustee, for its
benefit and the ratable benefit of each of the Holders, and grants to the
Trustee, for its benefit and the ratable benefit of the Holders, a continuing
security interest in, all of the following property (the "Collateral"):
(A) all issued and outstanding shares of capital stock of each
Pledged Share Issuer identified on Schedule I;
(B) all other Pledged Shares issued from time to time;
(C) all other Pledged Property, whether now or hereafter delivered
to the Trustee in connection with this Agreement;
(D) all Dividends, Distributions, interest and other payments and
rights with respect to any Pledged Property; and
(E) all proceeds of any of the foregoing.
2.2 SECURITY FOR INDENTURE OBLIGATIONS. This Agreement secures the
payment in full of all Indenture Obligations of the Company now or hereafter
existing under or in connection with the Indenture and each other Transaction
Document, including, without limitation, obligations for costs, fees and
expenses.
2.3 DELIVERY OF PLEDGED PROPERTY. All certificates or instruments
representing or evidencing any Collateral, including all Pledged Shares, shall
be delivered to and held by or on behalf of the Trustee pursuant hereto, shall
be in suitable form for transfer by delivery, and shall be accompanied by all
necessary instruments of transfer or assignment, duly executed in blank.
2.4 DIVIDENDS ON PLEDGED SHARES. Subject to Section 4.4, in the event
that any Dividend is to be paid on any Pledged Share, such Dividend or payment
shall be paid directly to the Trustee.
2.5 CONTINUING SECURITY INTEREST. This Agreement shall create a
continuing security interest in the Collateral and shall
(A) remain in full force and effect until payment in full of all
Indenture Obligations and the termination of the Indenture in
accordance with its terms,
(B) be binding upon the Company and its successors, transferees
and assigns, and
(C) inure, together with the rights and remedies of the Trustee
hereunder, to the benefit of the Trustee and each Holder.
Without limiting the foregoing clause (C) above, any Holder may assign or
otherwise transfer (in whole or in part) any Security held by it to any other
Person or entity, and such other Person or entity shall thereupon become vested
with all the rights and benefits in respect thereof granted to such Holder under
any Transaction Document (including this Agreement) or otherwise, subject,
however, to any contrary provisions in such assignment or transfer. Upon the
payment in full of all Indenture Obligations and the termination of the
Indenture in accordance with its terms, the security interest granted herein
shall terminate and all rights to the Collateral shall revert to the Company.
Upon any such termination, the Trustee will, at the Company's sole expense,
deliver to the Company, without any representations, warranties or recourse of
any kind whatsoever, all certificates and instruments representing or evidencing
all Pledged Shares, together with all other Collateral held by the Trustee
hereunder, and execute and deliver to the Company such documents as the Company
shall reasonably request to evidence such termination.
SECTION 3. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants unto each Holder and the Trustee,
as at the date of each pledge and delivery hereunder (including each pledge and
delivery of Pledged Shares) by the Company to the Trustee of any Collateral, as
set forth in this Section 3:
3.1 OWNERSHIP, NO LIENS, ETC. The Company is the legal and beneficial
owner of, and has good and marketable title to (and has obtained full right and
authority to pledge and assign) such Collateral, free and clear of all liens,
security interests, options, or other charges or encumbrances, except any lien
or security interest granted pursuant hereto in favor of the Trustee. The
Company has obtained all comments and waivers necessary from other creditors to
avoid conflicts with other agreements.
3.2 VALID SECURITY INTEREST. The delivery of such Collateral to the
Trustee is effective to create a valid, perfected, first priority security
interest in such Collateral and all proceeds thereof, securing the Indenture
Obligations. No filing or other action will be necessary to perfect or protect
such security interest.
3.3 AS TO PLEDGED SHARES. In the case of any Pledged Shares
constituting such Collateral, all of such Pledged Shares are duly authorized and
validly issued, fully paid, and nonassessable, and constitute all of the issued
and outstanding shares of capital stock of each Pledged Share Issuer. The
Company has no Subsidiary other than the Pledged Share Issuers and insurance
companies.
3.4 AUTHORIZATION, APPROVAL, ETC. No authorization, approval, or other
action by, and no notice to or filing with, any governmental authority,
regulatory body or any other Person is required either
(A) for the pledge by the Company of any Collateral pursuant to
this Agreement or for the execution, delivery, and performance
of this Agreement by the Company, or
(B) for the exercise by the Trustee of the voting or other rights
provided for in this Agreement, or, except with respect to any
Pledged Shares, as may be required in connection with a
disposition of such Pledged Shares by laws affecting the
offering and sale of securities generally, the remedies in
respect of the Collateral pursuant to this Agreement.
3.5 COMPLIANCE WITH LAWS. The Company is in compliance with the
requirements of all applicable laws (including, without limitation, the
provisions of the Fair Labor Standards Act), rules, regulations and orders of
every governmental authority, the non-compliance with which could reasonably be
expected to have a Material Adverse Effect or materially adversely affect the
value of the Collateral or the worth of the Collateral as collateral security.
SECTION 4. COVENANTS
4.1 PROTECT COLLATERAL: FURTHER ASSURANCES, ETC. The Company will not
sell, assign, transfer, pledge, or encumber in any other manner the Collateral
(except in favor of the Trustee hereunder). The Company will warrant and defend
the right and title herein granted unto the Trustee in and to the Collateral
(and all right, title, and interest represented by the Collateral) against the
claims and demands of all Persons whomsoever. The Company agrees that at any
time, and from time to time, at the expense of the Company, the Company will
promptly execute and deliver all further instruments, and take all further
action, that may be necessary or desirable, or that the Trustee may reasonably
request, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Trustee to exercise and enforce
its rights and remedies hereunder with respect to any Collateral.
4.2 STOCK POWERS, ETC. The Company agrees that all Pledged Shares (and
all other shares of capital stock constituting Collateral) delivered by the
Company pursuant to this Agreement will be accompanied by duly executed undated
blank stock powers, or other equivalent instruments of transfer acceptable to
the Trustee. The Company will, from time to time upon the request of the
Trustee, promptly deliver to the Trustee such stock powers, instruments, and
similar documents, satisfactory in form and substance to the Trustee, with
respect to the Collateral as the Trustee may reasonably request and will, from
time to time upon the request of the Trustee after the occurrence of any Event
of Default, promptly transfer any Pledged Shares or other shares of common stock
constituting Collateral into the name of any nominee designated by the Trustee.
4.3 CONTINUOUS PLEDGE. The Company will, at all times, keep pledged to
the Trustee pursuant hereto all Pledged Shares and all other shares of capital
stock constituting Collateral, all Dividends and Distributions with respect
thereto, and all other Collateral and other securities, instruments, proceeds,
and rights from time to time received by or distributable to the Company in
respect of any Collateral.
4.4 VOTING RIGHTS: DIVIDENDS, ETC. The Company agrees:
(A) Dividends and Distributions may be paid to the Company in
respect of the Pledged Shares; provided, that the Company
shall not pay any Dividends or Distributions in respect of the
Company's capital stock; and
(B) after any Event of Default shall have occurred and be
continuing and the Trustee has notified the Company of the
Trustee's intention to exercise its voting power under this
Section 4.4(B):
(i) the Trustee may exercise (to the exclusion of the
Company) the voting power and all other incidental
rights of ownership with respect to any Pledged
Shares or other shares of capital stock constituting
Collateral and the Company hereby grants the Trustee
an irrevocable proxy, exercisable under such
circumstances, to vote the Pledged Shares and such
other Collateral; and
(ii) the Company shall promptly to deliver to the Trustee
such additional proxies and other documents as may be
necessary to allow the Trustee to exercise such
voting power.
All Dividends, Distributions, interest, principal, cash payments, and proceeds
which may at any time and from time to time be held by the Company but which the
Company is then obligated to deliver to the Trustee, shall, until delivery to
the Trustee, be held by the Company separate and apart from its other property
in trust for the Trustee. The Trustee agrees that unless an Insolvency Default
or an Event of Default shall have occurred and be continuing and the Trustee
shall have given the notice referred to in Section 4.4(B), the Company shall
have the exclusive voting power with respect to any shares of capital stock
(including any of the Pledged Shares) constituting Collateral and the Trustee
shall, upon the written request of the Company, promptly deliver such proxies
and other documents, if any, as shall be reasonably requested by the Company
which are necessary to allow the Company to exercise voting power with respect
to any such share of capital stock (including any of the Pledged Shares)
constituting Collateral; provided, that no vote shall be cast, or consent,
waiver, or ratification given, or action taken by the Company that would impair
any Collateral or be inconsistent with or violate any provision of the Indenture
or any other Transaction Document (including this Agreement).
SECTION 5. THE TRUSTEE
5.1 TRUSTEE APPOINTED ATTORNEY-IN-FACT. The Company hereby irrevocably
appoints the Trustee the Company's attorney-in-fact, with full authority during
the continuance of an Insolvency Default or an Event of Default in the place and
stead of the Company and in the name of the Company or otherwise, from time to
time in the Trustee's discretion, to take any action and to execute any
instrument which the Trustee may deem necessary or advisable to accomplish the
purposes of this Agreement, including without limitation:
(A) to ask, demand, collect, xxx for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Collateral;
(B) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with
clause (A) above; and
(C) to file any claims or take any action or institute any
proceedings which the Trustee may deem necessary or desirable
for the collection of any of the Collateral or otherwise to
enforce the rights of the Trustee with respect to any of the
Collateral.
The Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys. The
Company hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
5.2 TRUSTEE MAY PERFORM. If the Company fails to perform any agreement
contained herein, the Trustee may itself perform, or cause performance of, such
agreement, and the expenses of the Trustee incurred in connection therewith
shall be payable by the Company pursuant to Section 6.4.
5.3 TRUSTEE HAS NO DUTY. The powers conferred on the Trustee hereunder
are solely to protect its interest (on behalf of the Holders) in the Collateral
and shall not impose any duty on it to exercise any such powers. Except for
reasonable care of any Collateral in its possession and the accounting for
moneys actually received by it hereunder, the Trustee shall have no duty as to
any Collateral or responsibility for (i) ascertaining or taking action with
respect to calls, conversions, exchanges, maturities, tenders or other matters
relative to any Pledged Property, whether or not the Trustee has or is deemed to
have knowledge of such matters or (ii) taking any necessary steps to preserve
rights against prior parties or any other rights pertaining to any Collateral.
5.4 REASONABLE CARE. The Trustee is required to exercise reasonable
care in the custody and preservation of any of the Collateral in its possession;
provided, that the Trustee shall be deemed to have exercised reasonable care in
the custody and preservation of any of the Collateral, if it takes such action
for that purpose as the Company reasonably requests in writing at times other
than upon the occurrence and during the continuance of any Event of Default, but
failure of the Trustee to comply with any such request at any time shall not in
itself be deemed a failure to exercise reasonable care.
SECTION 6. REMEDIES
6.1 CERTAIN REMEDIES. (A) If any Event of Default shall have occurred
and be continuing, the Trustee may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party on default under the UCC
(whether or not the UCC applies to the affected Collateral) and also may,
without notice except as specified below, sell the Collateral or any part
thereof in one or more parcels at public or private sale, at any of the
Trustee's offices or elsewhere, for cash, on credit or for future delivery, and
upon such other terms as the Trustee may deem commercially reasonable. The
Company agrees that, to the extent notice of sale shall be required by law, at
least ten days' prior notice to the Company of the time and place of any public
sale or the time after which any private sale is to be made shall constitute
reasonable notification. The Trustee shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The Trustee may
adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned.
(B) If any Event of Default shall have occurred and be continuing, the
Trustee may:
(i) transfer all or any part of the Collateral into the
name of the Trustee or its nominee, with or without
disclosing that such Collateral is subject to the
lien and security interest hereunder,
(ii) notify the parties obligated on any of the Collateral
to make payment to the Trustee of any amount due or
to become due thereunder,
(iii) enforce collection of any of the Collateral by suit
or otherwise, and surrender, release or exchange all
or any part thereof, or compromise or extend or renew
for any period (whether or not longer than the
original period) any obligations of any nature of any
party with respect thereto,
(iv) endorse any checks, drafts, or other writings in the
Company's name to allow collection of the Collateral,
(v) take control of any proceeds of the Collateral, and
(vi) execute (in the name, place and stead of the Company)
endorsements. assignments, stock powers and other
instruments of conveyance or transfer with respect to
all or any of the Collateral.
6.2 COMPLIANCE WITH RESTRICTIONS. The Company agrees that in any sale
of any of the Collateral whenever an Event of Default shall have occurred and be
continuing, the Trustee is hereby authorized to comply with any limitation or
restriction in connection with such sale as it may be advised by counsel is
necessary in order to avoid any violation of applicable law (including
compliance with such procedures as may restrict the number of prospective
bidders and purchasers, require that such prospective bidders and purchasers
have certain qualifications, and restrict such prospective bidders and
purchasers to persons who will represent and agree that they are purchasing for
their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority or official,
and the Company further agrees that such compliance shall not result in such
sale being considered or deemed not to have been made in a commercially
reasonable manner, nor shall the Trustee be liable nor accountable to the
Company for any discount allowed by the reason of the fact that such Collateral
is sold in compliance with any such limitation or restriction.
6.3 APPLICATION OF PROCEEDS. All cash proceeds received by the Trustee
in respect of any sale of, collection from, or other realization upon, all or
any part of the Collateral may, in the discretion of the Trustee, be held by the
Trustee as additional collateral security for, or then or at any time thereafter
be applied (after payment of any amounts payable to the Trustee and any Holder
pursuant to Section 6.4) in whole or in part by the Trustee against, all or any
part of the Indenture Obligations in the order specified in Section 10.4 of the
Company Security Agreement of even date herewith made by the Company in favor of
the Trustee.
6.4 INDEMNITY AND EXPENSES. The Company hereby indemnifies and holds
harmless the Trustee and each Holder from and against any and all claims,
losses, and liabilities arising out of or resulting from this Agreement
(including enforcement of this Agreement), except claims, losses, or liabilities
resulting from the Trustee's or such Holder's gross negligence, bad faith,
wilful misconduct or fraud. Upon demand, the Company will pay to the Trustee and
each Holder the amount of any and all reasonable expenses, including the
reasonable fees and disbursements of its counsel (which shall include the
allocated costs of in-house counsel fees and expenses) and of any experts and
Trustees, which the Trustee or such Holder may incur in connection with:
(A) the administration of this Agreement and each other
Transaction Document to which Company is a party;
(B) the custody, preservation, use, or operation of, or the sale
of, collection from, or other realization upon, any of the
Collateral;
(C) the exercise or enforcement of any of the rights of the
Trustee or any Holder hereunder; or
(D) the failure by the Company to perform or observe any of the
provisions hereof.
SECTION 7. MISCELLANEOUS
7.1 PROTECTION OF COLLATERAL. The Trustee may from time to time, at its
option, perform any act which the Company agrees hereunder to perform and which
the Company shall fail to perform after being requested in writing so to perform
(it being understood that no such request need be given after the occurrence and
during the continuance of a Default or an Event of Default) and the Trustee may
from time to time take any other action which the Trustee reasonably deems
necessary for the maintenance, preservation or protection of any of the
Collateral or of its security interest therein.
7.2 CERTAIN WAIVERS. The Company waives, to the fullest extent
permitted by law, (i) any right of redemption with respect to the Collateral,
whether before or after sale hereunder, and all rights, if any, of marshaling of
the Collateral or other collateral or security for the Indenture Obligations,
(ii) any right to require the Trustee (a) to proceed against any Person, (b) to
exhaust any other collateral or security for any of the Indenture Obligations,
(c) to pursue any remedy in the Trustee's power or (d) to make or give any
presentments, demands for performance, notices of nonperformance, protests,
notices of protests or notices of dishonor in connection with any of the
Collateral and (iii) all claims, damages, and demands against the Trustee
arising out of the repossession, retention, sale or application of the proceeds
of any sale of the Collateral.
7.3 NOTICES. All notices or other communications hereunder shall be
given in the manner and to the addresses specified in the Indenture. All such
notices and other communications shall be effective (i) if delivered by hand or
pre-paid courier service, when delivered, (ii) if sent by mail, upon the earlier
of the date of receipt or five Business Days after deposit in the mail, first
class, postage prepaid, (iii) if sent by telex, upon receipt by the sender of an
appropriate answerback and (iv) if sent by facsimile transmission, upon receipt
of electronic confirmation of receipt.
7.4 NO WAIVER; CUMULATIVE REMEDIES. No failure on the part of the
Trustee to exercise, and no delay in exercising, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, remedy, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights and remedies under this Agreement are cumulative
and not exclusive of any rights, remedies, powers and privileges that may
otherwise be available to the Trustee.
7.5 BINDING EFFECT. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by the Company and the Trustee, and their
respective successors and assigns; provided, that the Company may not assign any
of its rights hereunder or interests herein without the written consent of the
Trustee and the Holders having at least 25% in principal amount of the
Outstanding Securities. The Company acknowledges that upon any assignment or
other transfer by the Trustee or any Holder of any of the Indenture Obligations,
the Trustee or such Holder may transfer its interest herein, or any part
thereof, to the assignee or transferee, who shall thereupon become vested with
all the rights, remedies, powers, security interests and liens herein granted to
the Trustee or such Holder, or the transferred part thereof, subject, however,
to the restrictions contained herein. No Persons other than the Company, the
Holders, the Trustee and the respective assignees of the Holders and the Trustee
are intended to be benefited hereby or shall have any rights hereunder, as
third-party beneficiaries or otherwise.
7.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED, THAT THE TRUSTEE
AND THE HOLDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
7.7 FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE COMPANY AND THE TRUSTEE FOR
THE BENEFIT OF ITSELF AND THE HOLDERS EACH CONSENT, FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE COMPANY AND
THE TRUSTEE FOR THE BENEFIT OF ITSELF AND THE HOLDERS EACH IRREVOCABLY WAIVE ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY AND THE TRUSTEE FOR THE
BENEFIT OF ITSELF AND THE HOLDERS, EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
NEW YORK LAW.
7.8 WAIVER OF JURY TRIAL. THE COMPANY AND THE TRUSTEE FOR THE BENEFIT
OF ITSELF AND THE HOLDERS EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY AND THE
TRUSTEE FOR THE BENEFIT OF ITSELF AND THE HOLDERS EACH AGREE THAT ANY SUCH CLAIM
OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO
A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION 11.8 AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT.
7.9 AMENDMENT. This Agreement shall not be amended except by the
written agreement of the parties as provided in the Indenture.
7.10 SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under all
applicable laws and regulations. If; however, any provision of this Agreement
shall be prohibited by or invalid under any such law or regulation in any
jurisdiction, it shall, as to such jurisdiction, be deemed modified to conform
to the minimum requirements of such law or regulation, or, if for any reason it
is not deemed so modified, it shall be ineffective and invalid only to the
extent of such prohibition or invalidity without affecting the remaining
provisions of this Agreement, or the validity or effectiveness of such provision
in any other jurisdiction. This Agreement is to be read, construed and applied
together with the Indenture and the other Transaction Documents which, taken
together, set forth the complete understanding and agreement of the Trustee, the
Holders and the Company with respect to the matters referred to herein and
therein.
7.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute but one and the same agreement.
7.12 NO INCONSISTENT REQUIREMENTS. The Company acknowledges that this
Agreement and the other Transaction Documents may contain covenants and other
terms and provisions variously stated regarding the same or similar matters, and
agrees that all such covenants, terms and provisions are cumulative and all
shall be performed and satisfied in accordance with their respective terms;
provided, in the event any terms or conditions contained herein conflict with
any term or condition set forth in the Indenture, such term or condition set
forth in the Indenture shall control.
7.13 ENTIRE AGREEMENT. This Agreement (i) integrates all the terms and
conditions mentioned herein or incidental hereto, (ii) supersedes all oral
negotiations and prior writings with respect to the subject matter hereof and
(iii) is intended by the parties as the final expression of the Agreement with
respect to the terms and conditions set forth in this Agreement and as the
complete and exclusive statement of the terms agreed to by the parties.
7.14 FURTHER ASSURANCES. The Company agrees upon the written request of
the Trustee or any Holder, to execute and deliver to the Trustee or such Holder,
from time to time, any additional instruments or documents reasonably considered
necessary by the Trustee or such Holder to cause this Agreement to be, become or
remain, valid and effective in accordance with its terms.
* * * * *
Executed and delivered as of the date first above written.
MFN FINANCIAL CORPORATION
By:
Name:
Title:
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By:
Name:
Title:
SCHEDULE I
PLEDGED SHARES
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Common Stock
% of
Share Authorized Outstanding Outstanding
Pledged Share Issuer Certificate # Shares Shares Shares Pledged
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Mercury Finance Corporation of Alabama 2 1000 250 100
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Mercury Finance Company of Arizona 2 250 250 100
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Merc Finance Company of California 2 250 250 100
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Mercury Finance Company of Colorado 1 1000 250 100
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Mercury Finance Company of Delaware 1 1000 250 100
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Mercury Finance Company of Florida 2 1000 250 100
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Mercury Finance Company of Georgia 2 1000 250 100
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Mercury Finance Company of Idaho 1 1000 250 100
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Mercury Finance Company of Illinois 2 1000 250 100
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Mercury Finance Company of Indiana 2 1000 250 100
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Mercury Finance Company of Iowa 1 1000 250 100
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Mercury Finance Company of Kansas 2 1000 250 100
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Mercury Finance Company of Kentucky 2 1000 250 100
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Mercury Finance Company of Louisiana 2 1000 250 100
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Mercury Finance Company of Michigan 1 1000 250 100
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Mercury Finance Company of Mississippi 1 1000 250 100
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Mercury Finance Company of Missouri 2 250 250 100
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Mercury Finance Company of Nevada 2 250 250 100
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Mercury Finance Company of New Mexico 1 1000 250 100
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Mercury Finance Company of New York 1 1000 250 100
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Mercury Finance Company of North Carolina 2 1000 250 100
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Mercury Finance Company of Ohio 1 1000 250 100
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MFC Finance Company of Oklahoma 2 1000 250 100
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Mercury Finance Company of Oregon 1 1000 250 100
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Mercury Finance Company of Pennsylvania 1 1000 250 100
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Mercury Finance Company of South Carolina 1 1000 250 100
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Mercury Finance of Tennessee 1 250 250 100
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MFC Finance Company of Texas 2 1000 250 100
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Mercury Finance Company of Utah 1 1000 250 100
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Mercury Finance Company of Virginia 2 1000 250 100
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Mercury Finance Company of Washington 1 1000 250 100
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Mercury Finance Company of Wisconsin 1 1000 250 100
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Filco Marketing Company 1 1000 250 100
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MFC Financial Services, Inc. 2 250 250 100
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Gulfco Finance Company 1 300,000 1000 100
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Gulfco Investment, Inc. 1 1,000,000 1000 100
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Midland Finance Co. 1 10,000 1503.5 100
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