CONSENT AND AMENDMENT NO. 2
TO
INDENTURE AND RELATED DOCUMENTS
This Consent and Amendment No. 2 to Indenture and Related Documents (this
"Amendment"), dated as of July 28, 1999, is entered between, on the one hand,
Norwest Bank Minnesota, N.A., as trustee (the "Trustee"), and, on the other
hand, MF Receivables Holding Corp., a Delaware corporation (the "Company"), and
Monaco Finance, Inc., a Colorado corporation ("Monaco"), and is consented and
agreed to by each of the Holders of the outstanding Notes issued pursuant to the
Indenture, dated as of January 9, 1996 (as amended, supplemented, restated or
otherwise modified to the date hereof, the "Indenture"), originally entered into
between Monaco and the Trustee.
RECITALS
WHEREAS, Black Diamond Advisors, Inc. ("Black Diamond") and
Xxxxxx Financial, Inc. ("Xxxxxx"), who constitute the Holders of a
majority of the aggregate principal amount of the Notes, have
previously informed Monaco that such Holders believe that various
Defaults and/or Events of Default exist under the Indenture;
WHEREAS, on and subject to the terms and conditions contained herein,
Monaco has requested, among other things: (a) that the Holders waive all
existing Defaults and/or Events of Default; and (b) that the Trustee, with the
consent of the Holders of all Notes: (i) allow the Company to assume all of the
obligations of Monaco arising under or with respect to the Indenture and the
Credit Documents; (ii) amend various provisions of the Indenture and certain
documents and instruments related thereto; and (iii) enter into such additional
documents and instruments with the Company as are required pursuant to the terms
hereof; and
WHEREAS, on and subject to the terms and conditions contained herein,
among other things: (A) the Holders of all Notes have agreed to waive all
existing Defaults and/or Events of Default; (B) the Trustee, with the consent of
the Holders of all Notes, has agreed: (1) to allow the Company to assume all of
the obligations of Monaco arising under or with respect to the Indenture and the
Credit Documents; (2) to amend various provisions of the Indenture and certain
documents and instruments related thereto; and (3) to enter into such additional
documents and instruments with the Company as are required pursuant to the terms
hereof;
NOW, THEREFORE, in consideration of the terms and conditions set forth
herein and for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties hereto agree as
follows:
1. Definitions. Each capitalized term used but not otherwise
defined herein has the meaning ascribed thereto in the Indenture.
78
3360.03/Cons&AmIndenture
2. Waiver by the Holders of the Notes. Subject to the satisfaction of the
conditions set forth in Section 7 hereof and notwithstanding anything to the
contrary contained in the Indenture and any of the other Credit Documents, the
Holders of all of the Notes hereby waive any and all Events of Default under the
Indenture which occurred prior to the Effective Date (as hereinafter defined);
provided that the Holders do not hereby waive any Events of Default which occur
on and after the Effective Date, including, without limitation, any failure to
make payments under the Indenture (as amended hereby).
3. Assumption of Obligations. Subject to satisfaction of the conditions
set forth in the Section 7 hereof and notwithstanding anything to the contrary
contained in the Indenture and any of the other Credit Documents, the Trustee,
with the consent of the Holders of all of the Notes, the Company and Monaco
hereby agree that, upon the Effective Date: (a) the Company shall expressly
assume, and shall succeed to, all of the rights, obligations and duties of
Monaco under the Indenture and all other Credit Documents and Monaco shall have
no further rights, obligations and/or duties thereunder; and (b) all references
to the "Company" or "Monaco Finance, Inc." contained in the Indenture or any of
the other Credit Documents shall be deemed to be references to "MF Receivables
Holding Corp."
4. Amendments to the Indenture. Subject to satisfaction of the conditions
set forth in Section 7 hereof, the Company and the Trustee, with the consent of
the Holders of all Notes, agree to amend the Indenture as of the Effective Date
as follows:
(a) The definition of the term "Notes" in the second paragraph of the
Indenture is hereby amended from "the 12% Convertible Senior Subordinated Notes
due 2001 as amended and restated by the Amended and Restated 12% Senior
Subordinated Notes due 1999" to "the 12% Convertible Senior Subordinated Notes
due 2001, as amended and restated by the Amended and Restated 12% Senior
Subordinated Notes due 1999, as further amended and restated by the Amended and
Restated 12% Senior Notes" and the former clause is hereby deleted and replaced
with the later clause in each place the former clause appears in the Indenture
and in Exhibit B to the Indenture.
(b) Section 1.01 of the Indenture is hereby amended by adding the
following defined term in alphabetical order:
"Monaco" means Monaco Finance, Inc., a Colorado
corporation.
"Pledge Agreement" means that certain Pledge and Custodial
Agreement, dated as of July 28, 1999, among the Company, the Trustee,
Rothschild North America, Inc. and The Bank of New York, as collateral
agent, together with any permitted amendments, modifications and/or
supplements
thereto or thereof.
"Release Agreement" means that certain Release Agreement, dated
as of July 28, 1999, among Monaco, Pacific USA Holdings Corp., Pacific
Southwest Bank, Rothschild North America, Inc., Daiwa Finance Corporation,
and certain parties identifies on the signature page thereof.
(c) Article 3 of the Indenture is hereby deleted in its entirety and
replaced with the following:
Article 3
[INTENTIONALLY DELETED]
(d) The text of each of Sections 4.03, 4.07, 4.08, 4.09, 4.10, 4.22
and 4.23 of the Indenture is hereby deleted in its entirety and replaced with
the following: "[Intentionally deleted]."
(e) Section 4.14(a) of the Indenture is hereby deleted in its
entirety and replaced with the following:
(a) Liens in existence on the "Effective Date" (as that term is
defined in the Pledge Agreement and including, without limitation, the
Liens granted pursuant to the Pledge Agreement) and Liens to secure
replacements, extensions and renewals of the Indebtedness or other
obligations secured by such Liens only if (i) the principal amount of the
Indebtedness or other obligation secured thereby is not increased, (ii)
such Lien does not extend to any Property not previously subject thereto
and (iii) such Lien does not conflict with any Lien in favor of the
Trustee;
(f) The text of each of Sections 4.14(b), (c), (d), (e), (f), (g) and
(h) of the Indenture is hereby deleted in its entirety and replaced with the
following: "[Intentionally deleted]."
(g) The text of Section 4.16 of the Indenture is hereby deleted in
its entirety and replaced with the following:
The Company will not, nor will it permit any Subsidiary to,
become or be liable in respect of any Guaranty.
(h) Section 4.17 of the Indenture is hereby deleted in its entirety
and replaced with the following:
Section 4.17 Independence
Until 367 days have elapsed following payment and satisfaction of all
obligations of the Company hereunder and under the Notes, the Company
shall be required to observe the applicable legal requirements for the
recognition of the Company as a legal entity separate and apart from
Monaco and each other Affiliate of Monaco. Without limiting the generality
of the foregoing, the Company shall assure that each of the following is
complied with:
(a) the Company shall maintain separate records, books of
account and financial statements (each of which shall be sufficiently full
and complete to permit a determination of the Company's assets and
liabilities separate and apart from those of Monaco and each other
Affiliate of Monaco and to permit a determination of the obligees thereon
and the time for performance of each of the Company's obligations separate
and apart from those of Monaco and each other Affiliate of Monaco) from
those of Monaco and each other Affiliate of Monaco;
(b) assets or funds of the Company shall be separately
identified, shall be held in the name of the Company and shall not be
commingled with those of Monaco or any of the other Affiliates of Monaco;
(c) the Company shall maintain a separate board of directors
(including two "independent directors" (as such term is defined in the
Company's Certificate of Incorporation)) and shall observe all separate
corporate formalities, and all decisions with respect to the Company's
business and daily operations shall be independently made by the officers
of the Company pursuant to resolutions of its board of directors;
(d) other than payment of dividends and return of capital, no
transactions shall be entered into between the Company and Monaco (other
than capital contributions made by Monaco to the Company) or between the
Company and any of the other Affiliates of Monaco;
(e) except as contemplated by the Pledge Agreement, the Company
shall act solely in its own name and through its own authorized officers
and agents and the Company will not act as agent of Monaco or any other
person in any capacity;
(f) the Company shall not guarantee, otherwise become liable
with respect to, or otherwise hold out any of its assets or credit as
being available to satisfy any obligation of Monaco or any of the other
Affiliates of Monaco including jointly or as co-obligor;
(g) the Company shall at all times hold itself out to the public
under the Company's own name as a legal entity separate and distinct from
Monaco and the other Affiliates of Monaco and shall not hold itself out as
a "department," "division" or "part of" Monaco or any of the other
Affiliates of Monaco, and shall correct any known misunderstanding or
confusion regarding its separate identity from Monaco;
(h) the Company shall observe all corporate and other legal
formalities, including obtaining necessary authorization from board of
directors;
(i) the Company shall hold all regular meetings appropriate to
authorize corporate action and shall permit, upon reasonable advance
written notice, any of the Holders of the Notes to attend board meetings
of the Company;
(j) the Company shall maintain complete minutes
of all board of director and stockholder meetings;
(k) the Company shall maintain its bank and other investment
accounts separate and distinct from those of any Affiliate or other
Person;
(l) the Company shall pay from its own funds all obligations of
any kind incurred by it. Without limiting the generality of the foregoing,
the Company shall pay from its own funds the salaries or other
compensation and benefits of its own officers and employees, if any, and
will employ a reasonable number of employees in light of its purpose;
(m) the Company shall use its own stationery, invoices and
checks (i.e., not such forms of another Person) and shall have and
maintain a separate telephone number from that of Monaco and its
Affiliates;
(n) the Company shall file its own tax returns,
if any, as may be required under applicable law;
(o) the Company shall establish and maintain an office through
which its business is conducted separate and apart from that of Monaco and
its Affiliates;
(p) the Company shall not acquire or incur any Indebtedness
(including, without limitation, any Indebtedness of Monaco) except for (i)
the Indenture Obligations (as such term is defined in the Pledge
Agreement), (ii) the Rothschild Obligations (as such term is defined in
the Pledge Agreement) and (iii) ordinary course trade payables and other
Indebtedness incurred in the ordinary course of its business operations;
(q) the Company shall not acquire any equity
interest of or in Monaco;
(r) to the fullest extent permitted by law, the Company shall
not engage in any merger, asset sale, encumbrance or transfer of any
property or assets, or transfer of equity interests in it other than such
activities as are expressly permitted pursuant to any provision of the
Indenture Documents, the Rothschild Documents and the Pledge Agreement (as
each of those terms is defined in the Pledge Agreement); and
(n) the Company shall take all appropriate action necessary to
maintain its own existence as separate and distinct from the existence of
any of its owners.
(i) The text of Section 4.19 of the Indenture is hereby deleted in
its entirety and replaced with the following:
Within three (3) Business Days following the earlier of the
receipt by Monaco, the Company or MF Receivables Corp. IV, a Delaware
corporation ("XX XX"), of any servicing report relating to the assets of
XX XX, the Company shall provide a copy of same to the Holders of the
Notes.
(j) The text of each of Sections 5.01(b) of the Indenture is hereby
deleted in its entirety and replaced with the following:
"[Intentionally deleted]."
(k) The text of Section 5.01(d) of the Indenture is hereby deleted in
its entirety and replaced with the following:
(e) Default shall be made in the payment when due (whether by
lapse of time, by declaration, by call for redemption or otherwise) of the
principal of or interest on any Indebtedness (other than the Indebtedness
evidenced by the Notes) of the Company (including the Rothschild Debt) or
any Subsidiary and such default shall continue beyond the period of grace,
if any, allowed with respect thereto;
(l) The text of Section 5.01(f) of the Indenture is hereby deleted in
its entirety and replaced with the following:
(f) (i) Default shall occur in the due and punctual observance
or performance of any covenant or agreement contained in Sections 4.11,
4.14 or 4.17 or in the Pledge Agreement or (ii) the occurrence of any
amendment, modification or other revision of or supplement to any of the
terms of the Daiwa Documents (as defined in the Release Agreement) which
would reasonably be expected to have a material adverse effect on the
Holders of the Notes or the Lien granted pursuant to the Pledge Agreement;
(m) The first sentence of Section 5.04 of the Indenture is hereby
deleted in its entirety and replaced with the following:
If an Event of Default occurs and is continuing, the Trustee may only
pursue the remedies available to it (including, without limitation, all
remedies pertaining to the assets of the Company) as provided in this
Agreement and the Pledge Agreement or otherwise available under applicable
law, except as expressly waived under this Agreement or any other
agreement.
(n) Article 9 of the Indenture is hereby deleted in its entirety and
replaced with the following (which amendment is being effected to make clear
that, from and after the Effective Date, the Indebtedness under the Indenture
and the Notes shall not constitute subordinated Indebtedness of Monaco but
rather senior Indebtedness of the Company subject to the terms and conditions
hereof and of the Pledge Agreement):
Article 9
[INTENTIONALLY DELETED]
(o) Exhibit A to the indenture is hereby deleted in its entirety and
replaced with Exhibit A attached hereto.
5. Amendments to the Purchase Agreement. Subject to satisfaction of the
conditions set forth in Section 7 hereof, Company and the Holders of all Notes
agree that, as of the Effective Date, the first paragraph of Exhibit A to the
Purchase Agreement is hereby deleted in its entirety and replaced with the
following:
Reference is made to the Purchase Agreement, dated as of January 9,
1996 (as amended from time to time, the "Purchase Agreement"), among MF
Receivables Holding Corp., a Delaware corporation (as successor to Monaco
Finance, Inc., the "Company") and certain purchasers of the Company's 12%
Convertible Senior Subordinated Notes due 2001, as amended and restated by
the Company's Amended and Restated 12% Senior Subordinated Notes due 1999,
as further amended and restated by the Company's Amended and Restated 12%
Senior Notes (collectively and as further amended or amended and restated
from time to time, the "Notes") listed on the Purchaser Schedule thereto.
All capitalized terms used but not otherwise defined herein are used with
the meanings ascribed to such terms in the Agreement.
6. Cancellation of the Registration Rights Agreement. Subject to
satisfaction of the conditions set forth in Section 7 hereof, the Company and
the Holders of all Notes agree that, as of the Effective Date, the Registration
Rights Agreement shall be of no further force and effect and shall no longer
constitute a Credit Document.
7. Conditions to Effectiveness. This Amendment shall become effective as
of the date first written above (the "Effective Date") upon the effectiveness of
the Pledge Agreement (as hereinafter defined), contingent upon the prior or
concurrent satisfaction of the following conditions:
(a) The Trustee shall have received a fully executed copy of this
Amendment.
(b) The Trustee shall have received: (i) in substitution and exchange
for all existing Notes, new, fully executed Amended and Restated 12% Senior
Notes in the form attached hereto as Exhibit A; and (ii) for delivery to the
Company, originals of all currently outstanding Notes.
(c) The Trustee shall have received certified copies of all
resolutions of each of the Company and Monaco approving the execution, delivery
and performance of this Amendment and the transactions contemplated hereby.
(d) The Holders (or the Trustee on behalf of, and for distribution
to, the Holders in accordance with the Indenture) shall have received: (i) a
payment of principal on account of the Notes in an aggregate amount equal to
$1,849,172.21; and (ii) a payment equal to all accrued and unpaid interest on
the outstanding principal balance of the Notes through to the Effective Date.
(e) The Trustee, Xxxxxx and Black Diamond shall have received payment
of all costs and expenses required to be paid by the Company pursuant to Section
15 hereof.
(f) The Trustee shall have received a fully executed copy of the
Pledge and Custodial Agreement in the form attached hereto as Exhibit B (the
"Pledge Agreement"), together with copies of all original stock certificates,
blank stock powers and other documents required to be delivered thereunder on or
before the Effective Date.
(g) The Trustee shall have received a fully executed copy of the
Release Agreement in the form attached hereto as Exhibit C (the "Release
Agreement").
(h) The Trustee shall have received a favorable opinion from counsel
reasonably satisfactory to the Holders, in form satisfactory to the Holders, as
to the enforceability against each of the Company and Monaco (to the extent each
is a party thereto) of this Amendment, the new Notes referred to in Section 7(b)
hereof and the Pledge Agreement.
Upon the satisfaction of all of the foregoing conditions, the Trustee
shall immediately provide written notice to all of the parties to the Pledge
Agreement that all of such conditions have been satisfied. Notwithstanding
anything to the contrary contained herein, none of the amendments contemplated
by this Amendment shall become effective, and this Amendment shall automatically
terminate, if all of the foregoing conditions are not satisfied on or before
July 30, 1999.
8. Releases; No Recourse. Upon the effectiveness of this Amendment in
accordance with the provisions hereof, and for good and valuable consideration
(the receipt and sufficiency of which are hereby acknowledged): (a) each of
Monaco (on its behalf and on behalf of its respective officers and directors)
and the Company (on its behalf and on behalf of its respective officers and
directors) does hereby release and discharge the Trustee, the Holders, and all
of their respective shareholders, directors, officers, members, partners,
employees, affiliates, successors and assigns (collectively, the "Indenture
Released Parties"), of and from all manner of actions, choses and causes of
action, claims, demands, damages, expenses, liabilities, losses, judgments, and
executions (in each case of whatever kind or nature, whether in law or in
equity, and whether known or unknown) (collectively, the "Claims") at any time
arising out of or relating in any manner to any action or inaction at any time
by any of the Indenture Released Parties in connection with or relating to any
matter involving Monaco and/or any of its subsidiaries, and/or any of their
respective, officers, shareholders and/or directors; and (b) the Trustee and the
Holders, on their behalf and on behalf of all other Indenture Released Parties:
(i) do hereby release and discharge the Company, Monaco and all of their
respective shareholders, directors, officers, members, partners, employees,
affiliates, successors and assigns (collectively, the "Company Released
Parties"), of and from all manner of Claims at any time arising out of or
relating in any manner to any action or inaction at any time by any of the
Company Released Parties in connection with or relating to any matter involving
Monaco and/or any of its subsidiaries, and/or any of their respective, officers,
shareholders and/or directors; provided that the foregoing release shall not
release (A) the Company from its obligations arising under the Indenture (as
amended hereby), the Notes, and/or any other Credit Document (including, without
limitation, the Pledge Agreement and the Release Agreement) or in connection
therewith or (B) Monaco from its obligations hereunder and under the Release
Agreement or in connection therewith; and (ii) acknowledge and agree that,
notwithstanding anything to the contrary contained in the Indenture, the Notes
and/or any other Credit Document (including the Pledge Agreement): (A) no
recourse under or upon any obligation, covenant or agreement of the Company
contained in the Indenture, the Notes and/or any other Credit Document
(including the Pledge Agreement) may be had against any of the Company Released
Parties other than the Company; and (B) no such person or entity will file any
involuntary petition or otherwise institute, directly or indirectly, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or
other proceeding under any federal or state bankruptcy or similar law against
the Company.
9. Representations and Warranties of the Company. The Company represents
and warrants to the Trustee and each of the Holders of the Notes as follows:
(a) Authority. The Company has full corporate power, authority and
legal right to enter into this Amendment and the other agreements entered into
in connection herewith to which the Company is a party (including, without
limitation, the new Notes and the Pledge Agreement). The execution and delivery
by the Company of, and the performance by the Company of its obligations under,
this Amendment and the other agreements entered into in connection herewith to
which the Company is a party (including, without limitation, the new Notes and
the Pledge Agreement) and the Credit Documents, as amended hereby: (i) have been
duly authorized by all necessary corporate action on the part of the Company;
(ii) are not in contravention of the terms of the organizational documents of
the Company or of any indenture, agreement or undertaking to which the Company
is a party or by which the Company or any of its property is bound; (iii) do not
and will not require any governmental consent, registration or approval
pertaining to the Company; (iv) do not and will not contravene any contractual
or governmental restriction to which the Company 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 the Company under any existing indenture, mortgage, deed of trust,
loan or credit agreement or other material agreement or instrument to which the
Company is a party or by which the Company or any of its property may be bound
or affected.
(b) Binding Effect. This Amendment and all of the other agreements
entered into by the Company in connection herewith (including, without
limitation, the new Notes and the Pledge Agreement) have been duly executed and
delivered by the Company, and such documents, together with the Credit Documents
(as amended hereby) are the legal, valid and binding obligations of the Company
and are enforceable against the Company in accordance with their respective
terms, except as enforceability may be limited by federal bankruptcy laws.
(c) No Default. No Default or Event of Default will result under the
Indenture (as amended hereby) from the execution and delivery of this Amendment
or the other agreements executed and delivered by the Company in connection
herewith (including, without limitation, the new Notes and the Pledge Agreement)
or the consummation of the transactions contemplated hereby.
10. Representations, Warranties and Covenants of Monaco.
(a) Representations and Warranties. Monaco represents and warrants to
the Trustee and each of the Holders of the Notes as follows:
(i)..Authority. Monaco has full corporate power, authority and
legal right to enter into this Amendment and the other agreements entered into
in connection herewith to which Monaco is a party. The execution and delivery by
Monaco of, and the performance by Monaco of its obligations under, this
Amendment and the other agreements entered into in connection herewith to which
Monaco is a party: (A) have been duly authorized by all necessary corporate
action on the part of Monaco; (B) are not in contravention of the terms of the
organizational documents of Monaco or of any indenture, agreement or undertaking
to which Monaco is a party or by which Monaco or any of its property is bound;
(C) do not and will not require any governmental consent, registration or
approval pertaining to Monaco; (D) do not and will not contravene any
contractual or governmental restriction to which Monaco or any of its property
may be subject; and (E) 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 Monaco under any existing indenture, mortgage, deed of
trust, loan or credit agreement or other material agreement or instrument to
which Monaco is a party or by which Monaco or any of its property may be bound
or affected.
(ii).Binding Effect. This Amendment and the other agreements
entered into in connection herewith to which Monaco is a party have been duly
executed and delivered by Monaco, are the legal, valid and binding obligations
of Monaco and are enforceable against Monaco in accordance with their respective
terms, except as enforceability may be limited by federal bankruptcy laws.
(iii)No Default. No Default or Event of Default will result
under the Indenture (as amended hereby) from the execution and delivery of this
Amendment or the other agreements executed by Monaco in connection herewith or
the consummation of the transactions contemplated hereby.
(b) Covenants. Until 367 days have elapsed following payment and
satisfaction of all obligations of the Company under the Indenture and under the
Notes, Monaco covenants and agrees that it will comply with and, if applicable,
cause each of its Affiliates to comply with the following provisions:
(i)..Ownership. Monaco shall at all times own 100% of
the outstanding shares of stock of the Company;
(ii).Separateness. Monaco shall observe all customary
formalities necessary to maintain its identity as an entity separate and
distinct from the Company and shall hold itself out as a separate and distinct
entity from the Company and not identify the Company as a division of Monaco;
(iii)Waiver. To the fullest extent permitted by applicable law,
Monaco will waive any right it may have to reject this Amendment or avoid the
transactions contemplated hereby in any proceeding brought under Title 11 of the
United States Code, or any successor statutes, involving the Company;
(iv).Actions. Monaco shall not bring any action or proceeding
against the Company, including, without limitation, any action or proceeding
challenging the identity of the Company as an entity legally separate and apart
from Monaco; and
(v)..Certain Company Actions. The Company shall not pledge,
transfer, assign or purport to pledge, transfer or assign any of its equity or
other interests or grant a security interest in any of such interests to any
Person.
(vi).Appointment of Independent Director. Notwithstanding
anything to the contrary contained in the organizational documents of the
Company, Monaco hereby agrees that, until such time as all of the obligations,
liabilities and indebtedness of the Company under the Indenture and the Notes
are finally repaid in full: (A) Xxxxxx Financial, Inc. and/or BDC Partners I,
L.P. shall have the right, but not the obligation, upon written notice to Monaco
to cause Monaco to appoint one (1) (but not more than one (1) in the aggregate)
director of the Company (the "Additional Director") so long as the Additional
Director is an Independent Director (as that term is defined in the Company's
Certificate of Incorporation); provided that (1) neither Xxxxxx Financial, Inc.
nor BDC Partners I, L.P. shall have any responsibility or obligation in respect
of the payment of the costs and expenses of the Additional Director (which shall
be an obligation of the Company); and (2) the Additional Director's term shall
automatically expire upon the final repayment in full of all of the obligations,
liabilities and indebtedness of the Company under the Indenture and the Notes;
(B) the Company shall provide each of Xxxxxx Financial, Inc. and BDC Partners I,
L.P. with five (5) Business Days prior written notice by facsimile of any
meeting of the board of directors of the Company (which notice shall include the
agenda for such board meeting); and (C) Monaco shall promptly appoint the
Additional Director following written notice requesting the appointment thereof;
provided that Monaco shall appoint the Additional Director within two (2)
Business Days if such written notice is received by Monaco within two (2)
Business Days of the notice delivered by the Company pursuant to the immediately
preceding clause (B).
11. Representations and Warranties of the Trustee and the Holders. The
Trustee and each Holder of the Notes each represents and warrants to the Company
and Monaco as follows:
(a) Authority. Such Person has full power and authority (corporate or
otherwise) or legal capacity, as applicable, and legal right to enter into this
Amendment and the other agreements entered into in connection herewith to which
such Person is a party (including, without limitation, the new Notes, the Pledge
Agreement and the Release Agreement). The execution and delivery by such Person
of, and the performance by such Person of its obligations under, this Amendment
and the other agreements entered into in connection herewith to which such
Person is a party (including, without limitation, the new Notes, the Pledge
Agreement and the Release Agreement): (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 (if any) 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 such Person's property is bound; (iii)
do not and will not require any governmental consent, registration or approval
pertaining to such Person; and (iv) do not and will not contravene any
contractual or governmental restriction to which such Person or any of such
Person's property may be subject.
(b) Binding Effect. This Amendment and all of the other agreements
entered into by such Person in connection herewith (including, without
limitation, the new Notes, the Pledge Agreement and the Release Agreement) 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, except as enforceability may be limited
by federal bankruptcy laws.
12. Reference to and Effect Upon the Indenture and the Credit Documents.
(a) Except as specifically amended above, the Indenture and each of
the Credit Documents, as amended hereby, shall remain in full force and effect
and are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment shall
be limited precisely as written and shall not be deemed to (i) be a consent to
any waiver or modification of any other term or condition of the Indenture or
any other Credit Document or (ii) prejudice any right, power or remedy which
Trustee or any Holder of any Note may now have or may have in the future under
or in connection with the Indenture or any other Credit Document (after giving
effect to this Amendment). Upon the effectiveness of this Amendment: (A) each
reference in the Indenture or any other Credit Document to "this Agreement,"
"hereunder," "hereof," "herein" or words of similar import shall mean and be a
reference to the Indenture as amended hereby; and (B) each reference in the
Indenture or any other Credit Document to any Credit Document amended hereby
shall mean and be a reference to such Credit Document as amended hereby.
13. Further Assurances. The Company shall, at its sole expense and without
expense to the Trustee or the Holders, do, execute and deliver such further acts
and documents as the Trustee or any Holder from time to time may reasonably
require fro the purpose of assuring and confirming unto the Trustee or such
Holder the rights hereby created, now or hereafter so to be, or for carrying out
the intention or facilitating the performance of the terms of this Amendment,
the Indenture or any documents or instruments related hereto or thereto, or for
assuring the validity of any security interest or pledge granted in connection
herewith.
14. Counterparts; Facsimile Signatures. This Amendment may be executed in
any number of counterparts, each of which when so executed shall be deemed an
original, but all such counterparts shall constitute one and the same
instrument. Facsimile copies of signatures hereto shall be deemed originals for
all purposes.
15. Costs and Expenses. The Company agrees to pay on demand (a) all
reasonable fees, costs and expenses incurred by the Trustee in connection with
the negotiation, preparation, execution and delivery of this Amendment
(including, without limitation, reasonable attorneys' fees and expenses) and (b)
all reasonable fees, costs and expenses, in an aggregate amount not to exceed
$33,600, incurred by Xxxxxx and Black Diamond arising in connection with the
negotiation of this Amendment (including, without limitation, reasonable
attorneys' fees and expenses).
16. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purposes.
17. GOVERNING LAW. THIS AMENDMENT 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.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the date
and year first written above.
MONACO FINANCE, INC.
By: _________________________
Name: _________________________
Title: _________________________
NORWEST BANK MINNESOTA, N.A., as Trustee
By: _________________________
Name: _________________________
Title: _________________________
MF RECEIVABLES HOLDING CORP.
By: _________________________
Name: _________________________
Title: _________________________
CONSENTED AND AGREED:
BLACK DIAMOND ADVISORS, INC.
By: _________________________
Name: _________________________
Title: _________________________
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: _________________________
GUARANTEE TITLE & TRUST CO.
By: _________________________
Name: _________________________
Title: _________________________
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XXXX X. XXXXX
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XXXXXX XXXXXXX
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XXXXX XXXXXX
