Exhibit 4(F)
SUBSIDIARIES GUARANTY AGREEMENT
This Subsidiaries Guaranty Agreement dated as of March 23, 1999 (this
"Guaranty"), is made by each of the corporations listed on Annex I
(collectively, the "Guarantors" and each individually, a "Guarantor"), in favor
of Norwest Bank Minnesota, National Association, as trustee for the Holders
under the Indenture described below (in such capacity, the "Trustee").
PRELIMINARY STATEMENTS:
1. MFN Financial Corporation, a Delaware corporation (the "Company"),
is a party to the Indenture of even date with this Guaranty (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 Guarantors enter into this Guaranty.
3. Each Guarantor is a direct or indirect subsidiary of the Company and
will derive substantial and direct benefits (which benefits are acknowledged by
each Guarantor) from the issuance of the senior secured notes and other benefits
to be provided to the Company under the Indenture.
AGREEMENT:
In consideration of the mutual agreements, provisions, covenants and
for other valuable consideration, the sufficiency of which is acknowledged, the
Guarantors, jointly and severally, issue this Guaranty and agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION
1.1 TERMS DEFINED IN THE INDENTURE. Unless otherwise defined in this
Guaranty, capitalized terms used in this Guaranty 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 Guaranty, the following
terms have the following meanings:
"Agreement" has the meaning set forth in the preamble.
"Company" has the meaning set forth in the first preliminary
statement.
"Bankruptcy Code" means the United States Bankruptcy Code, 11
U.S.C. xx.xx. 101-1330.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government and any corporation or other
entity owned or controlled, through stock or capital ownership or
otherwise, by any of the foregoing.
"Indenture" has the meaning set forth in the first preliminary
statement.
"Majority Holders" means Holders having at least 25% in
principal amount of the Outstanding Securities.
"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.
SECTION 2. GUARANTY
2.1 GUARANTY. Each Guarantor, jointly and severally, irrevocably,
absolutely and unconditionally guarantees to the Trustee for the benefit of
itself, the Holders and their respective successors, endorsees, transferees and
assigns, the full and punctual payment or performance when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand or
otherwise, of all of the Indenture Obligations, including Indenture Obligations
in respect of amounts that would become due but for the operation of the
automatic stay under section 362(a) of the Bankruptcy Code or the operation of
sections 502(b) and 506(b) of the Bankruptcy Code. This Guaranty constitutes a
guaranty of payment and performance when due and not of collection, and each
Guarantor specifically agrees that it shall not be necessary or required that
the Trustee or any Holder whatsoever proceed against the Company (or any other
Person) before or as a condition to the Indenture Obligations of such Guarantor
under this Guaranty.
2.2 INDENTURE OBLIGATIONS INDEPENDENT. The obligations under this
Guaranty are independent of the Indenture Obligations of the Company, and a
separate action or actions may be brought and prosecuted against each Guarantor
whether action is brought against the Company or whether the Company be joined
in any such action or actions.
2.3 WAIVER OF CERTAIN RIGHTS. Each Guarantor waives any and all rights
such Guarantor may have now or in the future under any statute, or at common
law, or at law or in equity, or otherwise, to require the Trustee or any Holder:
(A) to proceed against the Company or any other Person;
(B) to proceed against or exhaust any security for the Indenture
Obligations or any other indebtedness of the Company to the
Trustee or any Holder; or
(C) to pursue any other remedy in the Trustee's or any such
Holder's power whatsoever.
It is agreed among each Guarantor, Trustee and the Holders that the waivers
contained in this Section 2.3 are of the essence to the transactions
contemplated by the Transaction Documents and that, but for this Guaranty and
such waivers, the Trustee would decline to enter into the Indenture and the
Holders would decline to purchase the Securities.
2.4 WAIVER OF CERTAIN DEFENSES. In addition to the waivers set forth in
Section 2.3, each Guarantor waives any defense arising by reason of any
disability or other defense of the Company, or the cessation from any cause
whatsoever of the liability of the Company, whether consensual or arising by
operation of law or any bankruptcy, insolvency or debtor relief proceeding, or
from any other cause, or any claim that such Guarantor's obligations hereunder
exceed or are more burdensome than those of the Company. Each Guarantor waives
any defense arising by reason of any statute of limitations affecting the
liability of the Company. Each Guarantor waives all rights and defenses arising
out of an election of remedies by the Trustee or any Holder, even though that
election of remedies, such as a nonjudicial foreclosure with respect to security
for the Indenture Obligations, has destroyed such Guarantor's rights of
subrogation and reimbursement against the Company by operation of Section 580d
of the California Code of Civil Procedure (if applicable) or other applicable
law, and all rights or defenses such Guarantor may have by reason of protection
afforded to the Company with respect to the Indenture Obligations pursuant to
the antideficiency laws or other laws of the State of California (or other
applicable jurisdiction) limiting or discharging the Indenture Obligations. Each
Guarantor waives any benefit of; and any right to participate in, any security
or other guaranty now or hereafter held by the Trustee or any Holder securing
the Indenture Obligations.
2.5 WAIVER OF PRESENTMENTS, ETC. Each Guarantor waives all
presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor and notices of acceptance of this
Guaranty and of the existence, creation, or incurring of new or additional
Indenture Obligations or any other indebtedness of the Company to the Trustee or
any Holder.
2.6 SUBORDINATION. Any obligations of the Company to any Guarantor, now
or hereafter existing, are hereby fully subordinated in time and priority of
payment to the Indenture Obligations and all other indebtedness of the Company
to the Trustee or any Holder; provided, that in no event shall this Section 2.6
be deemed to grant any Guarantor a right of subrogation contrary to the terms of
Section 2.10. Such obligations of the Company to such Guarantor if the Trustee
so requests shall be enforced and performance received by such Guarantor as
trustee for the Trustee and such Holders and the proceeds thereof shall be paid
over to the Trustee and the Holders on account of the Indenture Obligations, but
without reducing or affecting in any manner the liability of such Guarantor
under the other provisions of this Guaranty.
2.7 REINSTATEMENT OF GUARANTY. If any payment or transfer of any
interest in property by the Company to the Trustee or any Holder in fulfillment
of any Indenture Obligation is rescinded or must at any time (including after
the return or cancellation of this Guaranty) be returned, in whole or in part,
by the Trustee or any Holder to the Company or any other Person, upon the
insolvency, bankruptcy or reorganization of the Company or otherwise, this
Guaranty shall be reinstated with respect to any such payment or transfer,
regardless of any such prior return or cancellation.
2.8 POWERS. It is not necessary for the Trustee or any Holder to
inquire into the powers of the Company or of the officers, directors, partners
or agents acting or purporting to act on its behalf, and any Indenture
Obligations made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
2.9 TAXES.
(A) Any and all payments by the Guarantors to each Holder or the
Trustee under this Agreement shall be made free and clear of,
and without deduction or withholding for, any and all present
or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto,
excluding, in the case of each Holder and the Trustee, such
taxes (including income taxes or franchise taxes) as are
imposed on or measured by each Holder's net income by the
jurisdiction under the laws of which such Holder or the
Trustee, as the case may be, is organized or any political
subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities
being referred to as "Taxes"). -----
(B) In addition, the Guarantors shall pay any present or future
stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment
made hereunder or from the execution, delivery or registration
of, or otherwise with respect to, this Agreement (hereinafter
referred to as "Other Taxes").
(C) The Guarantors shall indemnify and hold harmless each Holder
and the Trustee for the full amount of Taxes or Other Taxes
(including any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 2.9) paid
by the Holder or the Trustee and any liability (including
penalties, interest, additions to tax and expenses) arising
therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. Payment
under this indemnification shall be made within 30 days from
the date the Holder or the Trustee makes written demand
therefor.
(D) If the Guarantors shall be required by law to deduct or
withhold any Taxes or Other Taxes from or in respect of any
sum payable hereunder to any Holder or the Trustee, then:
(i) the sum payable shall be increased as necessary so
that after making all required deductions (including
deductions applicable to additional sums payable
under this Section 2.9) such Holder or the Trustee,
as the case may be, receives an amount equal to the
sum it would have received had no such deductions
been made;
(ii) the Guarantors shall make such deductions, and
(iii) the Guarantors shall pay the full amount deducted to
the relevant taxation authority or other authority in
accordance with applicable law.
(E) Within 30 days after the date of any payment by the Guarantors
of Taxes or Other Taxes, the Guarantors shall furnish to the
Trustee the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment
satisfactory to the Trustee.
2.10 WAIVER OF SUBROGATION. Notwithstanding anything to the contrary in
this Guaranty or in any other Transaction Document to which any Guarantor is a
party, so long as any of the Indenture Obligations remain unsatisfied, each
Guarantor hereby expressly waives any right of subrogation, reimbursement,
indemnification and contribution (contractual, statutory or otherwise), against
the Company arising from the existence or performance of this Guaranty and each
Guarantor hereby expressly waives any right to enforce any remedy which the
Trustee or any Holder now has or may hereafter have against the Company, and
waives any benefit of, and any right to participate in, any security now or
hereafter held by the Trustee or any Holder securing the Indenture Obligations.
SECTION 3. REPRESENTATIONS AND WARRANTIES
Each Guarantor jointly and severally represents and warrants to the
Trustee and each Holder as follows, which representations and warranties survive
the execution and delivery of this Guaranty:
3.1 CORPORATE EXISTENCE AND POWER. Each Guarantor (i) is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) has the power and authority to own its
assets, carry on its business and execute, deliver, and perform its Indenture
Obligations under, this Guaranty and any other Transaction Document to which it
is a party, (iii) is duly qualified as a foreign corporation, and licensed and
in good standing, under the laws of each jurisdiction where its ownership, lease
or operation of property or the conduct of its business requires such
qualification or license except where failure to be so qualified or licensed
would not have a Material Adverse Effect and (iv) has all necessary governmental
licenses, authorizations, consents and approvals to own its assets and carry on
its business, and is in compliance with all applicable requirements of law of
any Governmental Authority except where failure to obtain such licenses,
authorizations, consents or approvals or comply with such laws would not have a
Material Adverse Effect.
3.2 CORPORATE AUTHORIZATION; NO CONTRAVENTION. The execution, delivery
and performance by each Guarantor of this Guaranty and any other Transaction
Document to which it is party have been duly authorized by all necessary
corporate action, and do not and will not (i) contravene the terms of any of
such Guarantor's constitutive documents, (ii) conflict with or result in any
breach or contravention of, or the creation of any lien under, any agreement to
which such Guarantor is a party or any order, injunction, writ or decree of any
Governmental Authority to which such Guarantor or its Property is subject or
(iii) violate any requirement of law of any Governmental Authority.
3.3 GOVERNMENTAL AUTHORIZATION. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, each Guarantor of
this Guaranty or any other Transaction Document to which it is a party or the
transactions contemplated hereby or thereby.
3.4 BINDING EFFECT. This Guaranty and each other Transaction Document
to which each Guarantor is a party constitute the legal, valid and binding
obligations of each Guarantor, enforceable against each Guarantor in accordance
with their respective terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
3.5 REGULATED ENTITIES. No Guarantor, nor any Person controlling any
Guarantor or any Subsidiary of any Guarantor is (i) an "Investment Company"
within the meaning of the Investment Company Act of 1940 or (ii) subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act, any state public utilities code, or any
other Federal or state statute or regulation limiting its ability to incur or
guarantee Indebtedness.
SECTION 4. MISCELLANEOUS
4.1 APPLICATION OF PAYMENTS ON GUARANTY. All payments required to be
made by each Guarantor hereunder shall, unless otherwise expressly provided
herein, be made to the Trustee for the account of the Holders at the address of
the Trustee set forth in the Indenture. The Trustee will promptly distribute to
each Holder its pro rata share (or other applicable share as expressly provided
herein) of such payment in like funds as received. Payments received from the
Guarantors shall be applied by the Trustee as follows;
First: to the payment of the costs and expenses due under this
Guaranty, including reasonable compensation to the Trustee and its
agents and attorneys, and of all other expenses, liabilities and
advances made or incurred by the Trustee, together with interest on
such costs, expenses and liabilities and on all advances made by the
Trustee from the date any such cost, expense or liability is past due
or unpaid or any such advance is made, in each case until paid in full;
Second: to the payment of any other fees, costs or other expenses
constituting Indenture Obligations under the Transaction Documents
other than amounts payable under clause "First" above, together with
interest on each such amount at the interest rate(s) applicable to the
Indenture Obligations pursuant to and in accordance with the Indenture
from and after the date such amount is due, owing or unpaid until paid
in full;
Third: to the payment of any interest then due, owing or unpaid in
respect of any Security or any other Indenture Obligation together
with, to the maximum extent permitted by law, interest thereon at the
interest rate(s) applicable to the Indenture Obligations pursuant to
and in accordance with the Indenture from the date such amount is due,
owing or unpaid until paid in full to be applied in accordance with the
Indenture;
Fourth: to the payment of the whole amount of principal then due, owing
or unpaid in respect of any Security or any other Indenture Obligation
secured by this Guaranty to be applied in accordance with the
Indenture; and
Fifth: the surplus, if any, to be paid to the applicable Guarantor or
to whomever lawfully may be entitled to receive such surplus.
4.2 ASSIGNMENT. Any Holder may from time to time, without notice to the
Guarantors and without affecting each Guarantor's Indenture Obligations
hereunder, transfer its interest in the Indenture Obligations as provided in the
Indenture.
4.3 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.
4.4 BINDING EFFECT. This Guaranty shall be binding upon, inure to the
benefit of and be enforceable by the Guarantors and the Trustee, and their
respective successors and assigns; provided, that no Guarantor may assign any of
its rights hereunder or interests herein without the written consent of the
Trustee and the Majority Holders. Each Guarantor 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 Guarantors, 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.
4.5 GOVERNING LAW. THIS GUARANTY 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.
4.6 FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS GUARANTY 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 GUARANTY, THE GUARANTORS 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
GUARANTORS 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 GUARANTY OR ANY DOCUMENT RELATED HERETO. THE GUARANTORS 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.
4.7 WAIVER OF JURY TRIAL. THE GUARANTORS 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 GUARANTY, 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
GUARANTORS 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 4.7
AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN
PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS GUARANTY OR ANY
PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY.
4.8 AMENDMENT. This Guaranty shall not be amended except by the written
agreement of the parties as provided in the Indenture.
4.9 SEVERABILITY. Whenever possible, each provision of this Guaranty
shall be interpreted in such manner as to be effective and valid under all
applicable laws and regulations. If, however, any provision of this Guaranty
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 Guaranty, or the validity or effectiveness of such provision
in any other jurisdiction. This Guaranty 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 Guaranty of the Trustee, the
Holders and the Guarantors with respect to the matters referred to herein and
therein.
4.10 COUNTERPARTS. This Guaranty 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 Guaranty.
4.11 NO INCONSISTENT REQUIREMENTS. Each Guarantors acknowledges that
this Guaranty 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.
4.12 ENTIRE GUARANTY. This Guaranty (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 Guaranty with
respect to the terms and conditions set forth in this Guaranty and as the
complete and exclusive statement of the terms agreed to by the parties.
4.13 FURTHER ASSURANCES. Each Guarantor 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 Guaranty to be,
become or remain, valid and effective in accordance with its terms.
4.14 TERMINATION. This Guaranty shall terminate and be of no further
force or effect upon the payment and performance in full of the Indenture
Obligations subject to the provisions of Section 2.9. Upon termination of this
Guaranty, the Trustee shall deliver to the Guarantors such documents as the
Guarantors may reasonably request to evidence such termination.
4.15 LIMITATION ON GUARANTEED INDENTURE OBLIGATIONS. Notwithstanding
any provision herein contained to the contrary, each Guarantor's liability
hereunder shall be limited to an amount not to exceed the amount which could be
claimed by the Trustee and Holders from such Guarantor under this Guaranty
without rendering such claim voidable or avoidable under section 548 of Chapter
11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent
Transfer Act, Uniform Fraudulent Conveyance Act or similar statute of common
law. The right of a Guarantor to contribution from other Guarantors or any other
rights such Guarantor may have, contractual or otherwise, will be taken into
account in making any determination under this Section 4.15.
4.16 CERTAIN ADDITIONAL CONSENTS AND WAIVERS (A) This Guaranty is
absolute, unconditional and irrevocable and is in no way conditioned or
contingent on the Company's performance of any obligation under the Indenture or
any other Transaction Document, any attempt to enforce in whole or in part any
of the Company's liabilities and Indenture Obligations to any Holder or the
existence or continuance of the Company or any other Person as a legal entity,
nor shall this Guaranty or each Guarantor's obligations hereunder be limited,
impaired, restricted or otherwise affected by the consolidation or merger of the
Company with or into any other entity, the sale, lease or other disposition by
the Company of all or substantially all of its assets to any other entity
(whether or not effected in compliance with the Transaction Documents), or the
bankruptcy or insolvency of the Company, the admission in writing by the Company
of its inability to pay its debts as they mature, or its making of a general
assignment for the benefit of, or entering into a composition or arrangement
with, creditors.
(B) The Trustee and the Holders may, at any time and from time to time,
without the consent of or notice to any Guarantor, except such notice as may be
required by applicable statute which cannot be waived, without incurring
responsibility to such Guarantor, and without impairing or releasing the
obligations of such Guarantor hereunder, upon or without any terms or conditions
and in whole or in part, (i) to the extent permitted by the Indenture, change
the manner, place and terms of payment or change or extend the time of payment
of, renew or alter any obligation of the Company hereby guaranteed, or in any
manner modify, amend or supplement the terms of the Indenture or other
Transaction Documents (other than this Guaranty) or any documents, instruments
or agreements executed in connection therewith (other than this Guaranty), and
this Guaranty shall apply to the Indenture Obligations and liabilities of the
Company, as changed, extended, renewed, modified, amended, supplemented or
altered in any manner, (ii) exercise or refrain from exercising any rights
against the Company or others (including such Guarantor) or otherwise act or
refrain from acting, (iii) settle or compromise any Indenture Obligations and
liabilities herein guaranteed or any Indenture Obligations and liabilities
(including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and may subordinate the payment of all or any part thereof to
the payment of any Indenture Obligations and liabilities which may be due to the
Trustee, the Holders or others, (iv) sell, exchange, release, surrender, realize
upon or otherwise deal with in any manner or in any order any property pledged
or mortgaged by anyone to secure or in any manner securing the Indenture
Obligations, any liabilities or obligation (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof or any other
Indenture Obligations or liabilities of the Company or such Guarantor to the
Holders or any offset thereagainst, (v) take and hold security or additional
security for any or all of the Indenture Obligations, (vi) apply any sums by
whomsoever paid or howsoever realized to any Indenture Obligations and
liabilities of the Company to the Holders regardless of what Indenture
Obligations and liabilities remain unpaid and (vii) in accordance with the
Indenture, assign their rights and interests under this Guaranty, the Indenture
or the other Transaction Documents, in whole or in part. Without limiting the
generality of the foregoing, each Guarantor hereby specifically waives such
Guarantor's rights and benefits under any statute, regulation, judicial decision
or other law which purports to exonerate or reduce the liability of a surety if
the underlying obligation is altered in any respect or if the rights and
remedies of the creditor against the principal in respect of a secured
obligation are in any way altered, impaired or suspended and agrees that, by so
doing, such Guarantor's obligations hereunder shall continue even if the Holders
alter any Indenture Obligations under the Indenture or the other Transaction
Documents (other than this Guaranty) in any respect or the Holders' remedies or
rights against the Company are in any way impaired or suspended without such
Guarantor's consent.
(C) No invalidity, irregularity or unenforceability of the Indenture
Obligations or liabilities of the Company under the Indenture or any other
Transaction Document shall affect, impair or be a defense to this Guaranty. Each
Guarantor hereby waives any and all benefits and defenses under any statute,
regulation, judicial decision or other law which purports to exonerate or reduce
the liability of a surety as a result of any disability or absence of liability
of the principal or any defense to liability or enforcement which the principal
may have and agrees that, by so doing, such Guarantor's obligations and the
guarantees granted hereunder shall continue even if the Company had no liability
at the time of execution of the Indenture or thereafter ceased or cease to be
liable. Each Guarantor also waives any and all benefits and defenses under any
statute, regulation, judicial decision or other law which purports to limit the
liability of a surety to that of the principal or to reduce the liability of a
surety in proportion to any reduction in the liability of the principal and
agrees that, by so doing, such Guarantor's obligations hereunder may be more
burdensome than that of the Company.
(D) Each Guarantor, to the extent permitted under applicable law,
hereby waives any right, whether arising under any statute, regulation, judicial
decision or otherwise, to require the Trustee or any Holder to (i) proceed
against the Company or any other Person acting as surety, guaranteeing or
providing collateral or other credit support for the Company's Indenture
Obligations under the Indenture or any other Transaction Document (a "Third
Party Credit Support Provider"), (ii) proceed against or exhaust any security
received from the Company or any Third Party Credit Support Provider or (iii)
pursue any other right or remedy in the Trustee's or the Holders' power
whatsoever.
(E) Each Guarantor further waives, to the extent permitted under
applicable law (i) any defense resulting from the absence, impairment or loss of
any right of reimbursement, subrogation, contribution or other right or remedy
of such Guarantor against the Company, any Third Party Credit Support Provider
or any security, whether resulting from an election by the Trustee and the
Holders to foreclose upon security by judicial or nonjudicial sale or otherwise,
(ii) any setoff or counterclaim of the Company or any defense of any kind
(including defenses resulting from any disability) or the cessation or stay of
enforcement from any cause whatsoever of the liability of the Company (including
without limitation the lack of validity or enforceability of the Indenture or
any other Transaction Document), (iii) any right to exoneration, in whole or in
part, of sureties or Third Party Credit Support Providers which would otherwise
be applicable, (iv) any right of subrogation or reimbursement, any right of
contribution, any right to enforce any remedy which the Trustee and the Holders
now have or may hereafter have against the Company, and any benefit of, and any
right to participate in, any security now or hereafter held or received by the
Holders (or the Trustee on their behalf), (v) except as required under the
Indenture, all presentments, demands for performance, notices of
non-performance, protests, notice of dishonor, notices of acceptance of this
Guaranty or of the existence, creation or incurring of new or additional
Indenture Obligations under the Indenture or the other Transaction Documents, or
any other notices of any kind and (vi) all valuation, appraisal, extension or
redemption laws now or hereafter in effect.
(F) Each Guarantor further specifically waives any and all benefits,
rights and defenses arising out of an election of remedies by the Trustee or any
Holder even though that election of remedies (i) has destroyed such Guarantor's
rights of subrogation and reimbursement against the Company and all rights or
defenses such Guarantor may have by reason of protection afforded to the Company
with respect to the Indenture Obligations pursuant to antideficiency laws or
other laws limiting or discharging the Indenture Obligations or (ii) would
require the Trustee and the Holders to foreclosure on all collateral covered by
the other Transaction Documents in one action or would prevent the Trustee on
behalf of itself and the Holders from bringing more than one action to enforce
the Indenture Obligations. Each Guarantor agrees by so doing that (i) such
Guarantor's obligations hereunder shall continue even if the Company had no
liability at the time of execution of the Indenture and other Transaction
Documents or thereafter ceased or ceases to be liable, (ii) that such
Guarantor's obligations hereunder may be more burdensome than that of the
Company and (iii) such Guarantor's obligations hereunder shall continue even if
the Trustee or any Holder alters any obligations under the Indenture or the
other Transaction Documents (other than this Guaranty) in any respect or if the
Trustee's or the Holder's remedies or rights against the Company are in any way
impaired or suspended without such Guarantor's consent.
(G) Each Guarantor acknowledges that it has the ability, and hereby
assumes the obligation and responsibility, to keep informed of the financial
condition of the Company and any Third Party Credit Support Provider and of
other matters or circumstances affecting the ability of any of them to pay or
perform their respective obligations thereunder or the risk of nonpayment and
nonperformance. Each Guarantor hereby waives any obligation on the part of the
Trustee or any Holder to inform such Guarantor of the financial condition, or
any changes in financial condition, of the Company or any Third Party Credit
Support Provider or of any other matter or circumstance which might effect the
ability of the Company to pay and perform under the Indenture or any other
Transaction Document, or the risk of nonpayment or nonperformance.
* * * * *
Executed and delivered as of the day and year first above written.
MERCURY FINANCE COMPANY OF ALABAMA
By:
Name:
Title:
MERCURY FINANCE COMPANY OF ARIZONA
By:
Name:
Title:
MERCURY FINANCE COMPANY OF CALIFORNIA
By:
Name:
Title:
MERCURY FINANCE COMPANY OF COLORADO
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:
MERCURY FINANCE COMPANY OF IDAHO
By:
Name:
Title:
MERCURY FINANCE COMPANY OF ILLINOIS
By:
Name:
Title:
MERCURY FINANCE COMPANY OF INDIANA
By:
Name:
Title:
MERCURY FINANCE COMPANY OF IOWA
By:
Name:
Title:
MERCURY FINANCE COMPANY OF KANSAS
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:
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 MEXICO
By:
Name:
Title:
MERCURY FINANCE COMPANY OF NEW YORK
By:
Name:
Title:
MERCURY FINANCE COMPANY OF NORTH CAROLINA
By:
Name:
Title:
MERCURY FINANCE COMPANY OF OHIO
By:
Name:
Title:
MFC FINANCE COMPANY OF OKLAHOMA
By:
Name:
Title:
MERCURY FINANCE COMPANY OF OREGON
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:
MERCURY FINANCE COMPANY OF UTAH
By:
Name:
Title:
MERCURY FINANCE COMPANY OF VIRGINIA
By:
Name:
Title:
MERCURY FINANCE COMPANY OF WASHINGTON
By:
Name:
Title:
MERCURY FINANCE COMPANY OF WISCONSIN
By:
Name:
Title:
FILCO MARKETING COMPANY
By:
Name:
Title:
MFC FINANCIAL SERVICES, INC.
By:
Name:
Title:
GULFCO FINANCE COMPANY
By:
Name:
Title:
GULFCO INVESTMENT COMPANY
By:
Name:
Title:
MIDLAND FINANCE COMPANY
By:
Name:
Title:
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By:
Name:
Title:
ANNEX I
Guarantors
Mercury Finance Company of Alabama
Mercury Finance Company of Arizona
Mercury Finance Company of California
Mercury Finance Company of Colorado
Mercury Finance Company of Delaware
Mercury Finance Company of Florida
Mercury Finance Company of Georgia
Mercury Finance Company of Idaho
Mercury Finance Company of Illinois
Mercury Finance Company of Indiana
Mercury Finance Company of Iowa
Mercury Finance Company of Kansas
Mercury Finance Company of Kentucky
Mercury Finance Company of Louisiana
Mercury Finance Company of Michigan
Mercury Finance Company of Mississippi
Mercury Finance Company of Missouri
Mercury Finance Company of Nevada
Mercury Finance Company of New Mexico
Mercury Finance Company of New York
Mercury Finance Company of North Carolina
Mercury Finance Company of Ohio
MFC Finance Company of Oklahoma
Mercury Finance Company of Oregon
Mercury Finance Company of Pennsylvania
Mercury Finance Company of South Carolina
Mercury Finance of Tennessee
MFC Finance Company of Texas
Mercury Finance Company of Utah
Mercury Finance Company of Virginia
Mercury Finance Company of Washington
Mercury Finance Company of Wisconsin
Filco Marketing Company
MFC Financial Services, Inc.
Gulfco Finance Company
Gulfco Investment Company
Midland Finance Company
MFN Insurance Company
