Exhibit 4.2
EXECUTION COPY
CONTRIBUTION AGREEMENT
AMONG
MERCURY FINANCE COMPANY LLC
AND
CERTAIN SUBSIDIARIES OF MFN FINANCIAL CORPORATION
DATED AS OF
MARCH 1, 2001
Table of Contents
-----------------
Page
ARTICLE I.........................................................DEFINITIONS 4
SECTION 1.1..................................................General 4
SECTION 1.2...........................................Specific Terms 4
SECTION 1.3...........................................Usage of Terms 6
SECTION 1.4..............................................No Recourse 6
ARTICLE II......CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED PROPERTY 6
SECTION 2.1...Conveyance of the Receivables and the Other Conveyed
................................................ Property 6
SECTION 2.2.................................Contribution Allocations 7
SECTION 2.3...............................Frequency of Contributions 7
ARTICLE III....................................REPRESENTATIONS AND WARRANTIES 7
SECTION 3.1.....Representations and Warranties of the Contributing
............................................ Subsidiaries 7
ARTICLE IV........................COVENANTS OF THE CONTRIBUTING SUBSIDIARIES 11
SECTION 4.1..........................................Liens in Force 11
SECTION 4.2...........................................No Impairment 11
SECTION 4.3...........................................No Amendments 11
SECTION 4.4...................................Restrictions on Liens 11
SECTION 4.5..............................Preservation of Collateral 12
SECTION 4.6...............................Preservation of Existence 12
SECTION 4.7......................................Separate Existence 12
SECTION 4.8...............................................Documents 13
ARTICLE V............................................................WAIVERS 13
SECTION 5.1.................................................Waivers 13
ARTICLE VI..............................................CONDITIONS PRECEDENT 13
SECTION 6.1...............Conditions Precedent to each Contribution 13
ARTICLE VII....................................................MISCELLANEOUS 14
SECTION 7.1..............Liability of the Contributing Subsidiaries 14
SECTION 7.2Merger or Consolidation of the Contributing Subsidiaries 14
SECTION 7.3.....Limitation on Liability of the Contributing
.................................Subsidiaries and Others 14
SECTION 7.4...............................................Amendment 14
SECTION 7.5.................................................Notices 15
SECTION 7.6..................................Merger and Integration 15
SECTION 7.7..............................Severability of Provisions 15
SECTION 7.8................................Intention of the Parties 15
SECTION 7.9...........................................Governing Law 16
SECTION 7.10...........................................Counterparts 16
SECTION 7.11........Conveyance of the Receivables and the Other
..............Conveyed Property to the Collateral Agent 16
SECTION 7.12...................................Nonpetition Covenant 16
SECTION 7.13....................................................... 16
EXHIBITS
Exhibit A - Form of Supplement
SCHEDULES
Schedule 1-- List of Locations of Chief Executive Offices of
Contributing Subsidiaries
CONTRIBUTION AGREEMENT
----------------------
THIS CONTRIBUTION AGREEMENT, dated as of March 1, 2001,
executed between Mercury Finance Company LLC, a Delaware limited liability
company ("MFC") and the subsidiaries of MFN Financial Corporation listed on the
signature pages hereof under the heading "Contributing Subsidiaries" (each such
subsidiary being referred to individually as a "Contributing Subsidiary" and
collectively as the "Contributing Subsidiaries").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Contributing Subsidiaries wish to contribute the
Receivables and Other Conveyed Property from time to time to MFC;
WHEREAS, MFC desires to sell and/or contribute such
Receivables and Other Conveyed Property to MFN Funding LLC, a Delaware limited
liability company ("MFN Funding") pursuant to the Sale and Contribution
Agreement, dated as of the date hereof (as the same may from time to time be
amended, the "Sale and Contribution Agreement"), among MFC, MFN Funding, and the
Collateral Agent; and
WHEREAS, MFN Funding will pledge all such Receivables and
Other Conveyed Property to the Collateral Agent for the benefit of the Secured
Parties.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements hereinafter contained, and for other good and valuable
consideration, the receipt of which is acknowledged, MFC and the Contributing
Subsidiaries, intending to be legally bound, hereby agree as follows:
ARTICLE XX
DEFINITIONS
SECTION 20.1. General. The specific terms defined in this Article include
the plural as well as the singular. The words "herein", "hereof" and "hereunder"
and other words of similar import refer to this Agreement as a whole and not to
any particular Article, Section or other subdivision, and Article, Section,
Schedule and Exhibit references, unless otherwise specified, refer to Articles
and Sections of and Schedules and Exhibits to this Agreement. Capitalized terms
used herein without definition shall have the respective meanings assigned to
such terms in the Security Agreement (as defined herein) or the Receivables
Financing Agreement (as defined herein).
SECTION 20.2. Specific Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
"Agreement" shall mean this Contribution Agreement and all
amendments hereof.
"Collateral Agent" means Xxxxx Fargo, as collateral agent and
any successor collateral agent appointed and acting pursuant to the Security
Agreement.
"Contribution Date" means (a) the date of this Agreement, with
respect to Receivables in existence on the Initial Cutoff Date and (b) each date
of contribution of Receivables by the Contributing Subsidiaries to MFC, with
respect to Receivables created after the Initial Cutoff Date.
"Custodian Agreement" means the Custodian Agreement, dated as
of the date hereof, by and between Deutsche Bank, as Agent and Xxxxx Fargo, as
Custodian and as Collateral Agent.
"Deutsche Bank" means Deutsche Bank AG, New York Branch.
"Initial Contribution Date" means March 23, 2001.
"Initial Cutoff Date" means March 17, 2001.
"Other Conveyed Property" means all property conveyed by the
Contributing Subsidiaries to MFC pursuant to this Agreement other than the
Receivables.
"Receivables Financing Agreement" means the Receivables
Financing Agreement, dated as of March 1, 2001, by and among MFN Funding, as
Borrower, MFN, in its individual capacity and as Performance Guarantor, MFC, as
Servicer, the Lenders party thereto, Deutsche Bank, as Agent and Xxxxx Fargo, as
Backup Servicer, Custodian and Collateral Agent.
"Relevant Cutoff Date" means (a) the Initial Cutoff Date, with
respect to Receivables in existence on the Initial Cutoff Date and (b) the date
set forth in the applicable Supplement with respect to the related Subsequent
Contribution Date.
"Schedule" means the list of Receivables contributed and
transferred pursuant to this Agreement and attached to a Supplement.
"Security Agreement" means the Security and Collateral Agent
Agreement, dated as of the date hereof, by and among MFN Funding, as Borrower,
MFC, as Servicer, Deutsche Bank, as Agent and Xxxxx Fargo, as Collateral Agent.
"Subsequent Contribution Date" means the date set forth in the
applicable Supplement for a contribution hereunder after the Initial
Contribution Date.
"Supplement" means an agreement by and between MFC and the
Contributing Subsidiaries pursuant to which MFC will acquire Receivables,
substantially in the form of Exhibit A hereto.
"Xxxxx Fargo" means Xxxxx Fargo Bank Minnesota, National
Association.
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SECTION 20.3. Usage of Terms. With respect to all terms used in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other gender; references to "writing" include
printing, typing, lithography, electronic or otherwise and other means of
reproducing words in a visible form; references to agreements and other
contractual instruments include all subsequent amendments thereto or changes
therein entered into in accordance with their respective terms and not
prohibited by this Agreement, the Custodian Agreement, the Security Agreement or
the Receivables Financing Agreement; references to Persons include their
permitted successors and assigns; and the terms "include" or "including" mean
"include without limitation" or "including without limitation."
SECTION 20.4. No Recourse. Without limiting the obligations of the
Contributing Subsidiaries hereunder and except to the extent otherwise provided
in the Transaction Documents, no recourse may be taken, directly or indirectly,
under this Agreement or any certificate or other writing delivered in connection
herewith or therewith, against any stockholder, officer or director, as such, of
the Contributing Subsidiaries, or of any predecessor or successor of the
Contributing Subsidiaries.
ARTICLE XXI
CONVEYANCE OF THE RECEIVABLES
AND THE OTHER CONVEYED PROPERTY
SECTION 21.1. Conveyance of the Receivables and the Other Conveyed
Property. By execution of this Agreement and subject to the terms and conditions
of this Agreement, each Contributing Subsidiary shall contribute, transfer or
assign to MFC (collectively, the "Conveyance") without recourse (but without
limitation of its obligations in this Agreement and the other Transaction
Documents), and MFC shall acquire as a contribution, all right, title and
interest of such Contributing Subsidiary in and to:
(a) (a) on the Initial Contribution Date, each and every Receivable
owned by such Contributing Subsidiary and in existence on the Initial
Cutoff Date as set out in the Supplement and Schedule delivered by such
Contributing Subsidiary and all monies paid or payable thereon or in
respect thereof on or after the Initial Cutoff Date and (b) on each
Subsequent Contribution Date, each and every Receivable created after the
prior Relevant Cutoff Date and in existence on the Relevant Cutoff Date as
set out in the Supplement and Schedule delivered by such Contributing
Subsidiary and all monies paid or payable thereon or in respect thereof on
or after the Relevant Cutoff Date;
(b) on each Contribution Date, the security interests in the related
Financed Vehicles granted by Obligors pursuant to such Receivables
contributed on such Contribution Date and any other interest of the
Contributing Subsidiaries in such Financed Vehicles;
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(c) on each Contribution Date, all proceeds and the rights to receive
proceeds with respect to the Receivables contributed on such Contribution
Date from claims on any physical damage, credit life or disability
insurance policies or Collateral Insurance (if any), covering Financed
Vehicles or Obligors, in each case related to the Receivables transferred
on such Contribution Date;
(d) on each Contribution Date, all rights under any service contracts
on the Financed Vehicles related to the Receivables transferred on such
Contribution Date;
(e) on each Contribution Date, all rights of the Contributing
Subsidiaries (x) against Dealers pursuant to Dealer Agreements or Dealer
Assignments and (y) against third party lenders pursuant to the related
purchase agreements with the Contributing Subsidiaries with respect to any
Receivable;
(f) the Receivables Files related to the Receivables transferred on
such Contribution Date; and
(g) all proceeds of any or all of the foregoing.
SECTION 21.2. Contribution Allocations. In exchange for such contribution,
the Contributing Subsidiaries will be credited with an increase in its capital
account in an amount equal to the aggregate net book value (which approximates
fair market value) specified on the Supplement and Schedule.
SECTION 21.3. Frequency of Contributions. Each Contributing Subsidiary
shall contribute all Receivables owed and acquired by it to MFC on a
Contribution Date selected by such Contributing Subsidiary not less than once
during each Collection Period.
ARTICLE XXII
REPRESENTATIONS AND WARRANTIES
SECTION 22.1. Representations and Warranties of the Contributing
Subsidiaries. Each Contributing Subsidiary, severally and not jointly, with
respect to itself and the Receivables it is contributing hereunder, makes the
following representations and warranties as of the date hereof and as of each
Contribution Date, as the case may be, on which MFC relies in receiving the
Receivables and the Other Conveyed Property. Such representations are made as of
the execution and delivery of this Agreement and as of each Contribution Date,
but shall survive the (i) contribution, transfer and assignment of the
Receivables and the Other Conveyed Property hereunder, and (ii) the sale and/or
contribution, transfer and assignment of the Receivables and Other Conveyed
Property to MFN Funding under the Sale and Contribution Agreement. The
Contributing Subsidiaries and MFC agree that MFC will assign to MFN Funding all
of MFC's rights under this Agreement and that MFN Funding will thereafter be
entitled to enforce this Agreement against the Contributing Subsidiaries in MFN
Funding's own name.
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(i) Receivables. Upon each Contribution Date, MFC (i) will acquire each
Receivable and the Other Conveyed Property contributed by such Contributing
Subsidiary free and clear of any Adverse Claim and (ii) will acquire as a
contribution each Receivable contributed by such Contributing Subsidiary at net
book value.
(ii) Organization and Good Standing. Such Contributing Subsidiary has
been duly organized and is validly existing as a corporation in good standing
under the laws of the state of its incorporation, with power and authority to
own its properties and to conduct its business as such properties are currently
owned and such business is currently conducted, and had at all relevant times,
and now has, power, authority and legal right to acquire, own and contribute the
Receivables and the Other Conveyed Property to be transferred by it to MFC.
(iii) Due Qualification. Such Contributing Subsidiary is duly qualified
to do business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires such
qualification, except where the failure to be so qualified or in good standing
would not have a material adverse effect on such Contributing Subsidiary's
business, properties or operations and would not have a material adverse effect
on the transactions contemplated hereunder.
(iv) Power and Authority. Such Contributing Subsidiary has the power
and authority to execute and deliver this Agreement and the other Transaction
Documents to which it is a party and to carry out its terms and their terms,
respectively; such Contributing Subsidiary has full power and authority to
contribute and assign the Receivables and the Other Conveyed Property to be
contributed and assigned to and deposited with MFC hereunder and has duly
authorized such contribution, transfer and assignment to MFC by all necessary
corporate action; and the execution, delivery and performance of this Agreement
and the other Transaction Documents to which it is a party have been duly
authorized by each Contributing Subsidiary by all necessary corporate action.
(v) Valid Contribution; Binding Obligations. This Agreement and each
Transaction Document to which such Contributing Subsidiary is a party has been
duly executed and delivered, shall effect a valid contribution, transfer and
assignment of the Receivables and the Other Conveyed Property to MFC,
enforceable against such Contributing Subsidiary and creditors of and purchasers
from such Contributing Subsidiary; and this Agreement and each Transaction
Document to which such Contributing Subsidiary is a party constitutes the legal,
valid and binding obligation of such Contributing Subsidiary enforceable in
accordance with their respective terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(vi) No Violation. The consummation of the transactions contemplated by
this Agreement and the other Transaction Documents to which it is a party, and
the fulfillment of the
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terms of this Agreement and the other Transaction Documents to which it is a
party, shall not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or bylaws of such Contributing Subsidiary,
or any indenture, agreement, mortgage, deed of trust or other instrument to
which such Contributing Subsidiary is a party or by which it is bound or any of
its properties are subject, or result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement, mortgage, deed of trust or other instrument, other than this
Agreement, or violate any law, order, rule or regulation applicable to such
Contributing Subsidiary of any Official Body having jurisdiction over such
Contributing Subsidiary or any of its properties or in any way adversely affect
such Contributing Subsidiary's ability to perform its obligations under this
Agreement or the other Transaction Documents to which it is a party.
(vii) No Proceedings. There are no proceedings or investigations
pending against or, to such Contributing Subsidiary's knowledge, threatened
against such Contributing Subsidiary, before any court or other Official Body
having jurisdiction over such Contributing Subsidiary or its properties (i)
asserting the invalidity of this Agreement or any of the other Transaction
Documents, (ii) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any of the other Transaction Documents, (iii)
seeking any determination or ruling that could reasonably be expected to
materially and adversely affect the performance by such Contributing Subsidiary
of its obligations under, or the validity or enforceability of, this Agreement
or any of the Transaction Documents, (iv) seeking to affect adversely the
federal income tax or other federal, state or local tax attributes of, or
seeking to impose any excise, franchise, transfer or similar tax upon, the
transfer and acquisition of the Receivables and the Other Conveyed Property
hereunder and do not require any action by or require the consent or approval of
or the filing of any notice with any Official Body or any other Person other
than the filing of financing statements in appropriate offices or (v) that could
reasonably be expected to have a material adverse effect on the Receivables.
(viii) Chief Executive Office. The chief executive offices of each
Contributing Subsidiary is listed on Schedule 1 attached hereto.
(ix) No Adverse Selection. No selection procedures adverse to the
parties hereto or to MFN Funding have been utilized in selecting the Receivables
from all other similar Receivables owned by such Contributing Subsidiary.
(x) Solvency. None of the Contributing Subsidiaries shall be insolvent
on any Contribution Date and no Conveyance will cause such Contributing
Subsidiary to become insolvent.
(xi) No Consents. Such Contributing Subsidiary is not required to
obtain the consent of any other Person which has not been obtained, or any
consent, license, approval or authorization of, or registration or declaration
with, any Official Body in connection with the
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execution, delivery, performance, validity or enforceability of this Agreement
or the other Transaction Documents to which it is a party.
(xii) Compliance With Laws. Such Contributing Subsidiary has complied
and will comply in all material respects with all applicable laws, rules,
regulations, judgments, agreements, decrees and orders with respect to its
business and properties and all Receivables.
(xiii) Taxes. Such Contributing Subsidiary has filed on a timely basis
all tax returns (including, without limitation, foreign, federal, state, local
and otherwise) required to be filed, is not liable for taxes payable by any
other Person and has paid or made adequate provisions for the payment of all
taxes, assessments and other governmental charges due from such Contributing
Subsidiary. No tax lien or similar adverse claim has been filed, and no claim is
being asserted, with respect to any such tax, assessment or other governmental
charge. Any taxes, fees and other governmental charges payable by such
Contributing Subsidiary in connection with the execution and delivery of this
Agreement and the other Transaction Documents and the transactions contemplated
hereby or thereby have been paid or shall have been paid if and when due at or
prior to the Closing Date.
(xiv) Financial or Other Condition. There has been no material adverse
change in the condition (financial or otherwise), business, operations, results
of operations, or properties of such Contributing Subsidiary since December 31,
2000.
(xv) Investment Company Status. Such Contributing Subsidiary is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or is exempt from all provisions of such Act.
(xvi) No Trade Names. Such Contributing Subsidiary has no trade names,
fictitious names, assumed names or "doing business as" names.
(xvii) Investments. Such Contributing Subsidiary does not own or hold,
directly or indirectly, any capital stock or equity security of, or any equity
interest in, any Person other than MFC.
(xviii) Representation and Warranties True and Correct. Each of the
representations and warranties of such Contributing Subsidiary contained in this
Agreement and the other Transaction Documents is true and correct in all
material respects and such Contributing Subsidiary hereby makes each such
representation and warranty to, and for the benefit of, the Collateral Agent and
MFC as if the same were set forth in full herein.
(xix) Transaction Documents. Such Contributing Subsidiary is not in
default of any of its obligations under the Transaction Documents in any
material respect. Upon the contribution of each Receivable pursuant to this
Agreement, MFC shall be the lawful owner of, and have good title to, such
Receivable and all assets relating thereto, free and clear of any Liens. All
such assets are transferred to MFC without recourse to such Contributing
Subsidiary except as described herein. The contribution of such assets by such
Contributing Subsidiary constitutes
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a valid and true contribution for consideration, enforceable against creditors
of such Contributing Subsidiary, and no such assets shall constitute property of
such Contributing Subsidiary.
(xx) Ownership of the Contributing Subsidiaries. All of the issued and
outstanding Capital Stock of such Contributing Subsidiary is wholly owned either
directly or indirectly, by MFN.
ARTICLE XXIII
COVENANTS OF THE CONTRIBUTING SUBSIDIARIES
Each Contributing Subsidiary severally for itself and not
jointly agrees as follows:
SECTION 23.1. Liens in Force. The Financed Vehicle securing each Receivable
shall not be released by such Contributing Subsidiary in whole or in part from
the security interest granted under the related Receivable, except upon payment
in full of the Receivable or as otherwise contemplated herein or the Transaction
Documents and such Contributing Subsidiary shall not take or permit any action
inconsistent with the foregoing.
SECTION 23.2. No Impairment. Such Contributing Subsidiary shall do nothing
to impair the rights of MFC or MFN Funding in the Receivables, the Dealer
Agreements, the Dealer Assignments, the Insurance Policies or any other property
or interest comprising the Other Conveyed Property.
SECTION 23.3. No Amendments. The Contributing Subsidiaries shall not take
or permit any action to extend or otherwise amend the terms of any Receivable,
except in accordance with the Transaction Documents.
SECTION 23.4. Restrictions on Liens. Such Contributing Subsidiary shall
not: (i) create or incur or agree to create or incur, or consent to cause (upon
the happening of a contingency or otherwise) the creation, incurrence or
existence of any Lien or restriction on transferability of the Receivables or of
any Other Conveyed Property except for the Lien in favor of MFC and the
Collateral Agent as assignee thereof, and the restrictions on transferability
imposed by this Agreement or (ii) sign or file under the Uniform Commercial Code
of any jurisdiction any financing statement or sign any security agreement
authorizing any secured party thereunder to file such financing statement, with
respect to the Receivables or to any Other Conveyed Property, except in each
case any such instrument solely securing the rights and preserving the Lien of
MFC and MFN Funding as assignee thereof. Such Contributing Subsidiary will take
no action to cause any Receivable to be evidenced by an instrument (as such term
is defined in the relevant UCC).
SECTION 23.5. Preservation of Collateral. Each Contributing Subsidiary will
do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, such instruments of transfer or take such other
steps or actions as may be reasonably necessary, or required by MFC or the
Collateral Agent to effect the Conveyance, to perfect the security
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interest granted in the Receivables and the Other Conveyed Property to the
Collateral Agent on behalf of the Secured Parties, to ensure that such
Conveyance and security interest ranks prior to all other Liens and to preserve
the priority of such Conveyance and security interest and the validity and
enforceability thereof.
SECTION 23.6. Preservation of Existence. Except as contemplated in Section
7.2, each Contributing Subsidiary shall observe all procedures required by its
organizational documents and by-laws and preserve and maintain its existence,
rights, franchises and privileges in the jurisdiction of its incorporation, and
qualify and remain qualified in good standing in each jurisdiction where the
failure to preserve and maintain such existence, rights, franchises, privileges
and qualifications would materially adversely affect (1) the interests hereunder
of the Collateral Agent or any Affected Person, (2) the collectibility of any
Receivable or (3) its ability to perform its obligations hereunder or under any
of the other Transaction Documents.
SECTION 23.7. Separate Existence. For so long as it remains in existence,
such Contributing Subsidiary shall take reasonable steps (including without
limitation, all steps that the Agent may from time to time reasonably request)
to maintain its identity as a separate legal entity from MFN Funding and to make
it manifest to third parties that such Contributing Subsidiary is an entity with
assets and liabilities distinct from those of MFN Funding and each other
Affiliate thereof. Without limiting the generality of the foregoing, such
Contributing Subsidiary shall:
(i) account for and manage its liabilities separately from those of MFN
Funding, including, without limitation, payment of all payroll and other
administrative expenses and taxes from its own assets;
(ii) maintain its assets separately from MFN Funding;
(iii) maintain offices through which its business is conducted separate
from those of MFN Funding (provided that, to the extent that such Contributing
Subsidiary and any of its Affiliates have offices in the same location, there
shall be a fair and appropriate allocation of overhead costs and expenses among
them, and each such entity shall bear its fair share of such expenses);
(iv) not commingle its funds with those of MFN Funding except to the
extent contemplated herein or in the Receivables Financing Agreement, or use its
funds for other than such Contributing Subsidiary's uses; and
(v) ensure that any financial reports required of such Contributing
Subsidiary shall comply with GAAP and shall be issued separately from, but may
be consolidated with, any reports prepared by MFN Funding.
SECTION 23.8. Documents. Such Contributing Subsidiary shall comply with
each of the terms of the Transaction Documents to which it is party (in any
capacity) and shall not cancel or terminate any of the Transaction Documents to
which it is party or subject (in any capacity),
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or consent to or accept any cancellation or termination of any of such
agreements, or amend or otherwise modify any term or condition of any of the
Transaction Documents to which it is party or subject (in any capacity) or give
any consent, waiver or approval under any such agreement, or waive any default
under or breach of any of the Transaction Documents to which it is party (in any
capacity) or take any other action under any such agreement not required by the
terms thereof, unless (in each case) the Agent shall have consented thereto.
ARTICLE XXIV
WAIVERS
SECTION 24.1. Waivers. No failure or delay on the part of MFC, or the
Collateral Agent as assignee of MFC, in exercising any power, right or remedy
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power, right or remedy preclude any other or future
exercise thereof or the exercise of any other power, right or remedy.
ARTICLE XXV
CONDITIONS PRECEDENT
SECTION 25.1. Conditions Precedent to each Contribution. Each contribution
of Receivables shall be subject to the conditions precedent that:
(i) the Effective Date under the Receivables Financing Agreement shall
have occurred;
(ii) the Contributing Subsidiaries shall, to the extent required by
Section 8.2 of the Receivables Financing Agreement, have deposited in the
Collection Account all collections received after the Relevant Cutoff Date with
respect to the Receivables to be contributed on such Contribution Date;
(iii) the Contributing Subsidiaries shall take any action (including,
but not limited to, the filing of appropriate UCC financing statements) required
to perfect the ownership interest of MFC in the Receivables and the Other
Conveyed Property (provided, however, that the Contributing Subsidiaries shall
make such filings as promptly as possible and in no event later than the third
Business Day following the respective Receivables Contribution Date and shall
promptly provide to MFC and the Collateral Agent and the Agent a copy of a
stamped acknowledgment copy thereof); and
(iv) such contribution shall be reflected on the books and records of
MFC pursuant to Section 2.2.
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ARTICLE XXVI
MISCELLANEOUS
SECTION 26.1. Liability of the Contributing Subsidiaries. Each Contributing
Subsidiary shall be liable in accordance herewith only to the extent of the
obligations in this Agreement specifically undertaken by such Contributing
Subsidiary and the representations and warranties of such Contributing
Subsidiary.
SECTION 26.2. Merger or Consolidation of the Contributing Subsidiaries. Any
corporation or other entity (i) into which a Contributing Subsidiary may be
merged or consolidated, (ii) resulting from any merger or consolidation to which
a Contributing Subsidiary is a party, or (iii) succeeding to the business of a
Contributing Subsidiary, shall execute an agreement of assumption to perform
every obligation of the applicable Contributing Subsidiary under this Agreement
and, whether or not such assumption agreement is executed, shall be the
successor to the applicable Contributing Subsidiary hereunder (without relieving
the Contributing Subsidiary of its responsibilities hereunder, if it survives
such merger or consolidation) without the execution or filing of any document or
any further action by any of the parties to this Agreement; provided, however,
that any such merger or consolidation is subject in all respects to the
restrictions set forth in its articles of incorporation and the consent of the
Agent (which consent shall not be unreasonably withheld).
SECTION 26.3. Limitation on Liability of the Contributing Subsidiaries and
Others. The Contributing Subsidiaries and any director, officer, employee or
agent thereof may rely in good faith on the advice of counsel or on any document
of any kind prima facie properly executed and submitted by any Person respecting
any matters arising under this Agreement. The Contributing Subsidiaries shall
not be under any obligation to appear in, prosecute or defend any legal action
that is not incidental to its obligations under this Agreement or its
Transaction Documents.
SECTION 26.4. Amendment.
(i) This Agreement may be amended by the Contributing Subsidiaries and
MFC (with the consent of the Agent) (i) to cure any ambiguity, (ii) to correct
any provisions in this Agreement, or (iii) at any such time as the Receivables
Financing Agreement has been terminated and no longer in effect; provided,
however, that such action shall not adversely affect the interests of any
Secured Party.
(ii) This Agreement may also be amended from time to time by the
Contributing Subsidiaries and MFC with the consent of the Collateral Agent and
the Agent, in accordance with the Receivables Financing Agreement.
SECTION 26.5. Notices. All demands, notices and communications to the
Contributing Subsidiaries or MFC hereunder shall be in writing, personally
delivered, or sent by telecopier (subsequently confirmed in writing), reputable
overnight courier or mailed by certified mail,
11
return receipt requested, and shall be deemed to have been given upon receipt
(a) in the case of the Contributing Subsidiaries, to their respective chief
executive offices as indicated on Schedule I hereto, or (b) in the case of MFC,
to Mercury Finance Company LLC, 000 Xxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxxx,
Xxxxxxxx 00000, Attention: Treasurer, or such other address as shall be
designated by a party in a written notice delivered to the other party or to the
Collateral Agent, as applicable.
SECTION 26.6. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement and Transaction Documents set forth the entire
understanding of the parties relating to the subject matter hereof, and all
prior understandings, written or oral, are superseded by this Agreement and the
Transaction Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 26.7. Severability of Provisions. If any one or more of the
covenants, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, provisions or terms shall be
deemed severable from the remaining covenants, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement.
SECTION 26.8. Intention of the Parties. The execution and delivery of this
Agreement shall constitute an acknowledgment by the Contributing Subsidiaries
and MFC that they intend that the assignments and transfers herein contemplated
constitute a contribution, transfer and assignment outright, and not for
security, of the Receivables and the Other Conveyed Property, conveying good
title thereto free and clear of any Liens, from the Contributing Subsidiaries to
MFC, and that the Receivables and the Other Conveyed Property shall not be a
part of the Contributing Subsidiaries' estate in the event of the bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law, or the
occurrence of another similar event, of, or with respect to, the Contributing
Subsidiary. In the event that such conveyance is determined to be made as
security for a loan made by MFC to the Contributing Subsidiaries, the parties
intend that the Contributing Subsidiaries shall have granted to MFC a security
interest in all of the Contributing Subsidiaries' right, title and interest in
and to the Receivables and the Other Conveyed Property conveyed pursuant to
Section 2.1 hereof, and that this Agreement shall constitute a security
agreement under applicable law.
SECTION 26.9. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York without regard to the
principles of conflicts of laws thereof and the obligations, rights and remedies
of the parties under this Agreement shall be determined in accordance with such
laws.
SECTION 26.10. Counterparts. For the purpose of facilitating the execution
of this Agreement and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and all of which counterparts shall constitute but
one and the same instrument.
12
SECTION 26.11. Conveyance of the Receivables and the Other Conveyed
Property to the Collateral Agent. Each Contributing Subsidiary acknowledges that
MFC intends, pursuant to the Sale and Contribution Agreement to sell the
Receivables and the Other Conveyed Property, together with its rights under this
Agreement, to MFN Funding on the Contribution Dates. Such Contributing
Subsidiary acknowledges and consents to such conveyance and waives any further
notice thereof and covenants and agrees that the representations and warranties
of such Contributing Subsidiary contained in this Agreement and the rights of
MFC hereunder are intended to benefit the Agent, the Collateral Agent and the
Secured Parties. In furtherance of the foregoing, each Contributing Subsidiary
covenants and agrees to perform their duties and obligations hereunder, in
accordance with the terms hereof for the benefit of the Collateral Agent and the
Secured Parties and that, notwithstanding anything to the contrary in this
Agreement, such Contributing Subsidiary shall be directly liable to the
Collateral Agent and the Secured Parties, and that the Collateral Agent and the
Agent may enforce the duties and obligations of such Contributing Subsidiary
under this Agreement against such Contributing Subsidiary for the benefit of the
Secured Parties and the Collateral Agent.
SECTION 26.12. Nonpetition Covenant. Neither MFC (in its capacity as a
creditor of MFN Funding) nor the Contributing Subsidiaries shall petition or
otherwise invoke the process of any court or government authority for the
purpose of commencing or sustaining an involuntary case against MFN Funding or
the Collateral Agent under any federal or state bankruptcy, insolvency or
similar law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of MFN Funding or the Collateral Agent or
any substantial part of their respective property, or ordering the winding up or
liquidation of the affairs of MFN Funding or the Collateral Agent. This Section
7.12 shall be continuing and shall survive any termination of this Agreement.
SECTION 26.13. Each Contributing Subsidiary agrees that, except as
expressly permitted by the Transaction Documents, it shall not permit or suffer
to exist any Lien upon or financing statement filed with respect to any deposit
or other account into which such Contributing Subsidiary deposits or causes to
be deposited, collections, Recoveries and other amounts received with respect to
any Receivable contributed by it. Each Contributing Subsidiary agrees to enter
into any blocked account or controlled account agreement with respect to any
such deposit account as may be reasonably requested by the Agent to further
secure and perfect the rights of the Agent with respect to such accounts and all
monies and other proceeds deposited therein.
[Signature Pages Follow]
13
IN WITNESS WHEREOF, the parties have caused this Contribution Agreement
to be duly executed by their respective officers as of the day and year first
above written.
MERCURY FINANCE COMPANY LLC
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
Title: President
s-1
Contributing Subsidiaries
-------------------------
MERCURY FINANCE COMPANY OF ARIZONA
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
MERCURY FINANCE COMPANY OF DELAWARE
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
MERCURY FINANCE COMPANY OF FLORIDA
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
MERCURY FINANCE COMPANY OF GEORGIA
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
s-2
MERCURY FINANCE COMPANY OF ILLINOIS
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
MERCURY FINANCE COMPANY OF INDIANA
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
MERCURY FINANCE COMPANY OF KENTUCKY
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
MERCURY FINANCE COMPANY OF LOUISIANA
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
MERCURY FINANCE COMPANY OF MICHIGAN
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
MERCURY FINANCE COMPANY OF MISSISSIPPI
S-4
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
S-5
MERCURY FINANCE COMPANY OF MISSOURI
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
MERCURY FINANCE COMPANY OF NEVADA
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
MERCURY FINANCE COMPANY OF NEW YORK
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
MERCURY FINANCE COMPANY OF NORTH CAROLINA
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
MERCURY FINANCE COMPANY OF OHIO
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
S-7
MFC FINANCE COMPANY OF OKLAHOMA
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
MERCURY FINANCE COMPANY OF PENNSYLVANIA
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
MERCURY FINANCE COMPANY OF SOUTH CAROLINA
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
MERCURY FINANCE COMPANY OF TENNESSEE
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
MFC FINANCE COMPANY OF TEXAS
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
MERCURY FINANCE COMPANY OF VIRGINIA
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
MERCURY FINANCE COMPANY OF WISCONSIN
By: /s/Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Vice President
EXHIBIT A
---------
FORM OF SUPPLEMENT
CONTRIBUTION No. [____] made this __ day of ______________ ,
200_, among Mercury Finance Company LLC, a Delaware limited liability company
("MFC"), and the subsidiaries of MFN Financial Corporation listed on the
signature pages hereof and under the heading "Contributing Subsidiaries" (each
such Subsidiary being referred to individually as a "Contributing Subsidiary"
and collectively as the "Contributing Subsidiaries.")
W I T N E S S E T H:
WHEREAS, the Contributing Subsidiaries wish to contribute
Receivables and other Conveyed Property to MFC and
WHEREAS, MFC is willing to acquire as a contribution such
Receivables subject to the terms and conditions hereof.
NOW, THEREFORE, MFC and each Contributing Subsidiary hereby
agree as follows:
1. Defined Terms. Capitalized terms used herein shall have the
meanings ascribed to them in the Contribution Agreement, dated as of March 1,
2001 (the "Contribution Agreement"), unless otherwise defined herein.
"Relevant Cutoff Date" shall mean, with respect to the
Receivables sold and/or contributed hereby, _______________ __, 200_.
"Contribution Date" shall mean, with respect to the
Receivables assigned hereby, the date hereof.
2. Schedules of Receivables. Annexed hereto is Schedule A (in
the form of an electronic tape or file) from the Contributing Subsidiaries
listing the Receivables contributed by each Contributing Subsidiary pursuant to
this Supplement on the Contribution Date.
3. Contribution of Receivables. (a) Such Contributing
Subsidiary does hereby contribute, transfer, assign, set over and otherwise
convey to MFC (the "Assignment"), without recourse (except as expressly provided
in the Contribution Agreement), all right, title and interest of such
Contributing Subsidiary in and to:
(i) the Receivables listed in Schedule A hereto (or on the
electronic tape or file submitted with this Supplement) and all
monies paid or payable thereon on and after the Relevant Cutoff
Date;
A-1
(ii) the security interests in the related Financed Vehicles
granted by Obligors pursuant to such Receivables and any other
interest of such Contributing Subsidiary in such Financed
Vehicles;
(iii) all proceeds and all rights to receive proceeds with
respect to the Receivables from claims on any physical damage,
credit life or disability insurance policies or Collateral
Insurance (if any), covering Financed Vehicles or Obligors;
(iv) all rights of such Contributing Subsidiary (x) against
Dealers pursuant to Dealer Agreements or Dealer Assignments and
(y) against third party lenders pursuant to the related purchase
agreements with such Contributing Subsidiary with respect to any
Receivable;
(v) all rights under any service contracts on the related
Financed Vehicles;
(vi) the related Receivables Files; and
(vii) all proceeds of any and all of the foregoing.
(b) The Contribution is in consideration of an increase in
each Contributing Subsidiary's capital account in an amount equal
to the net book value of such Receivables set forth as
contributed on the attached Schedule A.
4. Representations and Warranties of the Contributing
Subsidiary. Each Contributing Subsidiary, severally for itself and not jointly,
hereby represents and warrants to MFC as of the Contribution Date that:
(a) Contribution Agreement. The representations and
warranties made by such Contributing Subsidiary in the
Contribution Agreement are true and correct and any
representation made by such Contributing Subsidiary in the
Contribution Agreement that relates to Receivables or Other
Conveyed Property contributed by such Contributing Subsidiary is
true and correct and made with respect to the related Receivables
and Other Conveyed Property contributed pursuant to Section 3
hereof.
(b) Principal Balance. As of the Relevant Cutoff Date, the
aggregate net book value of the Receivables contributed pursuant
to this Supplement is the amount set forth on Schedule A (or in
the electronic tape submitted with this Supplement).
5. Conditions Precedent. The obligation of MFC to acquire the
Receivables hereunder is subject to the satisfaction, on or prior to the
Contribution Date, of the following conditions precedent:
A-2
(a) Representations and Warranties. Each of the
representations and warranties made by each Contributing
Subsidiary in Section 4 of this Supplement and in Section 3.1 of
the Contribution Agreement shall be true and correct with respect
to the property contributed pursuant to Section 3 hereof as of
the Contribution Date.
(b) Contribution Agreement Conditions. Each of the
conditions set forth in Section 6.1 of the Contribution Agreement
shall have been satisfied with respect to the property
contributed pursuant to Section 3 hereof.
(c) Additional Information. Each Contributing Subsidiary
shall have delivered to MFC such information as was reasonably
requested by MFC to satisfy itself as to the satisfaction of the
conditions set forth in this Section 5.
6. Ratification of Agreement. As supplemented by this
Supplement, the Contribution Agreement is in all respects ratified and confirmed
and the Contribution Agreement as so supplemented by this Supplement shall be
read, taken and construed as one and the same instrument.
7. Counterparts. This Supplement may be executed in two or
more counterparts (and by different parties in separate counterparts), each of
which shall be an original but all of which together shall constitute one and
the same instrument.
8. GOVERNING LAW. THIS SUPPLEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-3
IN WITNESS WHEREOF, the parties have caused this Supplement to
be duly executed and delivered by their respective duly authorized officers as
of the day and the year first above written.
MERCURY FINANCE COMPANY LLC
By:
----------------------------
Name:
Title:
A-4
Contributing Subsidiaries
-------------------------
MERCURY FINANCE COMPANY OF ARIZONA
By:
-----------------------------
Name:
Title:
MERCURY FINANCE COMPANY OF DELAWARE
By:
-----------------------------
Name:
Title:
MERCURY FINANCE COMPANY OF FLORIDA
By:
-----------------------------
Name:
Title:
MERCURY FINANCE COMPANY OF GEORGIA
By:
-----------------------------
Name:
Title:
A-5
MERCURY FINANCE COMPANY OF ILLINOIS
By:
-----------------------------
Name:
Title:
MERCURY FINANCE COMPANY OF INDIANA
By:
-----------------------------
Name:
Title:
MERCURY FINANCE COMPANY OF KENTUCKY
By:
-----------------------------
Name:
Title:
MERCURY FINANCE COMPANY OF LOUISIANA
By:
-----------------------------
Name:
Title:
MERCURY FINANCE COMPANY OF MICHIGAN
By:
-----------------------------
Name:
Title:
A-6
MERCURY FINANCE COMPANY OF MISSISSIPPI
By:
-----------------------------
Name:
Title:
MERCURY FINANCE COMPANY OF MISSOURI
By:
-----------------------------
Name:
Title:
MERCURY FINANCE COMPANY OF NEVADA
By:
-----------------------------
Name:
Title:
MERCURY FINANCE COMPANY OF NEW YORK
By:
-----------------------------
Name:
Title:
MERCURY FINANCE COMPANY OF NORTH CAROLINA
By:
-----------------------------
Name:
Title:
A-7
MERCURY FINANCE COMPANY OF OHIO
By:
-----------------------------
Name:
Title:
A-8
MFC FINANCE COMPANY OF OKLAHOMA
By:
-----------------------------
Name:
Title:
MERCURY FINANCE COMPANY OF PENNSYLVANIA
By:
-----------------------------
Name:
Title:
MERCURY FINANCE COMPANY OF SOUTH CAROLINA
By:
-----------------------------
Name:
Title:
MERCURY FINANCE COMPANY OF TENNESSEE
By:
-----------------------------
Name:
Title:
MFC FINANCE COMPANY OF TEXAS
By:
-----------------------------
Name:
Title:
A-9
MERCURY FINANCE COMPANY OF VIRGINIA
By:
-----------------------------
Name:
Title:
MERCURY FINANCE COMPANY OF WISCONSIN
By:
-----------------------------
Name:
Title:
Acknowledged:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
solely in its capacity as Collateral Agent
By______________________________
Name:
Title:
A-10
EXECUTION COPY
SCHEDULE A TO SUPPLEMENT
------------------------
EXECUTION COPY
SCHEDULE 1
Locations of Chief Executive Offices of Contributing Subsidiaries
