Exhibit 4(D)
COMPANY SECURITY AGREEMENT
This Company Security Agreement dated as of March 23, 1999 (this
"Agreement"), is made by MFN Financial Corporation, a Delaware corporation (the
"Company"), in favor of Norwest Bank Minnesota, National Association, as trustee
for the Holders under the Indenture described below (in such capacity, the
"Trustee").
PRELIMINARY STATEMENTS:
1. The Company is a party to the Indenture of even date with this
Agreement (as amended, restated, supplemented or otherwise modified from time to
time, the "Indenture"), with the Trustee, under which the Company will issue its
senior secured notes to the holders thereof and their successors and assigns.
2. It is a condition precedent to the issuance of the senior secured
notes that the Company enter into this Agreement and grant to the Trustee, for
the benefit of itself and the holders of such senior secured notes the security
interests provided in this Agreement to secure the obligations of the Company
described below.
AGREEMENT:
In consideration of the mutual agreements, provisions, covenants and
for other valuable consideration, the sufficiency of which is acknowledged, the
Company agrees as follows:
SECTION 1. DEFINITIONS; INTERPRETATION
1.1 TERMS DEFINED IN THE INDENTURE. Unless otherwise defined in this
Agreement, capitalized terms used in this Agreement and not otherwise defined
have the meanings given to such terms from time to time in the Indenture.
1.2 CERTAIN DEFINED TERMS. As used in this Agreement, the following
terms have the following meanings:
"Accounts" means any and all "accounts," as such term is
defined in the UCC, whether now existing or hereafter arising or
acquired by the Company, and in any event includes all accounts
receivable, contract rights, rights to payment and other obligations of
any kind owed to the Company arising out of or in connection with the
sale or lease of merchandise, goods or commodities or the rendering of
services or arising from any other transaction, however evidenced, and
whether or not earned by performance, all guaranties, indemnities and
security with respect to the foregoing, and all letters of credit
relating thereto, in each case whether now existing or hereafter
acquired or arising.
"Agreement" has the meaning set forth in the preamble.
"Books" means all books, records and other written, electronic
or other documentation in whatever form maintained now or hereafter by
or for the Company in connection with the ownership of its assets or
the conduct of its business or evidencing or containing information
relating to the Collateral, including (i) ledgers, (ii) records
indicating, summarizing, or evidencing the Company's assets (including
Inventory and Rights to Payment), business operations or financial
condition, (iii) computer programs and software, (iv) computer discs,
tapes, files, manuals, spreadsheets, (v) computer printouts and output
of whatever kind, (vi) any other computer prepared or electronically
stored, collected or reported information and equipment of any kind and
(vii) any and all other rights now or hereafter arising out of any
contract or agreement between the Company and any service bureau,
computer or data processing company or other Person charged with
preparing or maintaining any of the Company's books or records or with
credit reporting, including with regard to the Company's Accounts.
"Chattel Paper" means any "chattel paper," as such term is
defined in the UCC, whether now existing or hereafter arising or
acquired by the Company.
"Collateral" has the meaning specified in Section 2.1.
"Company" has the meaning set forth in the preamble.
"Deposit Account" means any demand, time, savings, passbook or
like account now or hereafter maintained by or for the benefit of the
Company with a bank, savings and loan association, credit union or like
organization and all funds and amounts therein, whether or not
restricted or designated for a particular purpose.
"Documents" means any and all "documents," as such term is
defined in the UCC, including without limitation all documents of
title, bills of lading, dock warrants, dock receipts, warehouse
receipts and other documents of the Company, whether or not negotiable,
and includes all other documents which purport to be issued by a bailee
or agent and purport to cover goods in any bailee's or agent's
possession which are either identified or are tangible portions of an
identified mass, including such documents of title made available to
the Company for the purpose of ultimate sale or exchange of goods or
for the purpose of loading, unloading, storing, shipping,
transshipping, manufacturing, processing or otherwise dealing with
goods in a manner preliminary to their sale or exchange, in each case
whether now existing or hereafter acquired or arising.
"Equipment" means all "equipment," as such term is defined in
the UCC, whether now existing or hereafter acquired by the Company in
all of its forms, wherever located, and in any event includes any and
all machinery, furniture, equipment, furnishings and fixtures in which
the Company now or hereafter acquires any right, and all other goods
and tangible personal property (other than Inventory), including tools,
parts and supplies, computer and other electronic data processing
equipment and other office equipment, computer programs and related
data processing software, and all additions, substitutions,
replacements, parts, accessories, and accessions to and for the
foregoing, now owned or hereafter acquired, and including any of the
foregoing which are or are to become fixtures on real property.
"Financing Statements" has the meaning specified in Section 3.
"Fixtures" shall mean any "fixtures" as such term is defined
in the UCC, whether now owned or hereafter acquired by the Company.
"General Intangibles" means any "general intangibles," as such
term is defined in the UCC, whether now existing or hereafter arising
or acquired by the Company, and in any event includes (i) all tax and
other refunds, rebates or credits of every kind and nature to which the
Company is now or hereafter may become entitled, (ii) all goodwill,
choses in action and causes of action, whether legal or equitable,
whether in contract or tort and however arising, (iii) all Intellectual
Property Collateral, (iv) all uncertificated securities and interests
in limited and general partnerships and limited liability companies,
(v) all rights of stoppage in transit, replevin and reclamation, (vi)
all licenses, permits, consents, indulgences and rights of whatever
kind issued in favor of or otherwise recognized as belonging to the
Company by any Governmental Authority and (vii) all indemnity
agreements, guaranties, insurance policies and other contractual,
equitable and legal rights of whatever kind or nature; in each case
whether now existing or hereafter acquired or arising.
"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.
"Insolvency Default" means a Default under Section
9.01(a)(vii) or Section 9.01(a)(viii) of the Indenture.
"Instruments" means any and all negotiable instruments,
certificated securities and every other writing which evidences a right
to the payment of money, in each case whether now existing or hereafter
acquired by the Company.
"Intellectual Property Collateral" means the following
properties and assets owned or held by the Company or in which the
Company otherwise has any interest, now existing or hereafter acquired
or arising:
(A) all patents and patent applications, domestic or foreign, all
licenses relating to any of the foregoing and all income and
royalties with respect to any licenses (including without
limitation such patents, patent applications and patent
licenses as described in Schedule E), present or future
infringement thereof, all rights arising therefrom and
pertaining thereto and all reissues, divisions, continuations,
renewals, extensions and continuations-in-part thereof;
(B) all copyrights and applications for copyright, domestic or
foreign, together with the underlying works of authorship
(including titles), whether or not the underlying works of
authorship have been published and whether said copyrights are
statutory or arise under the common law, and all other rights
and works of authorship, all rights, claims and demands in any
way relating to any such copyrights or works, including
royalties and rights to xxx for past, present or future
infringement, and all rights of renewal and extension of
copyright;
(C) all state (including common law), federal and foreign
trademarks, service marks and trade names, and applications
for registration of such trademarks, service marks and trade
names, all licenses relating to any of the foregoing and all
income and royalties with respect to any licenses (including
without limitation such marks, names, applications and
licenses as described in Schedule E), whether registered or
unregistered and wherever registered, all rights to xxx for
past, present or future infringement or unconsented use
thereof, all rights arising therefrom and pertaining thereto
and all reissues, extensions and renewals thereof;
(D) all trade secrets, confidential information, customer lists,
license rights, advertising materials, operating manuals,
methods, processes, know-how, sales literature, drawings,
specifications, blue prints, descriptions, inventions name
plates and catalogs; and
(E) the entire goodwill of or associated with the businesses now
or hereafter conducted by the Company connected with an
symbolized by any of the aforementioned properties and assets.
"Inventory" means any "inventory," as such term is defined in
the UCC, wherever located, whether now owned or hereafter acquired by
the Company, and in any event includes all goods (including goods in
transit) which are held for sale, lease or other disposition, including
those held for display or demonstration or out on lease or consignment
or to be furnished under a contract of service, or which are raw
materials, work in process, finished goods or materials used or
consumed in the Company's business, and the resulting product or mass,
and all repossessed, returned, rejected, reclaimed and replevied goods,
together with all parts, components, supplies, packing and other
materials used or usable in connection with the manufacture,
production, packing, shipping, advertising, selling or furnishing of
such goods; and all other items hereafter acquired by the Company by
way of substitution, replacement, return, repossession or otherwise,
and all additions and accessions thereto, and any Document representing
or relating to any of the foregoing at any time.
"Investment Property" shall have the meaning ascribed thereto
in Section 9-115 of the UCC in those jurisdictions in which such
definition has been adopted and shall include without limitation (i)
all securities, whether certificated or uncertificated, stocks, bonds,
interests in limited liability companies, partnership interests,
treasuries, certificates of deposit, and mutual fund shares, (ii) all
securities entitlements of the Company including without limitation,
the rights of the Company to any securities account of the Company and
financial assets held by a securities intermediary in such securities
account and any fee, credit balance or other money owing by any
securities intermediary with respect to that account, (iii) all
securities accounts held by the Company, (iv) all commodity contracts
held by the Company and (v) all commodity accounts held by the Company.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, collateral deposit arrangement, security
interest, encumbrance for the payment of money, lien (statutory or
other), preference, right of setoff, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title
retention agreement, the interest of a lessor under a capital lease,
any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement (other
than a financing statement filed by a "true" lessor under Section 9-408
of the UCC) naming the owner of the asset to which such Lien relates as
debtor, under the UCC or other comparable law of any jurisdiction.
"Majority Holders" means Holders having at least 25% in
principal amount of the Outstanding Securities.
"Permitted Lien" has the meaning set forth in the First
Supplemental Trust Indenture of even date with this Agreement between
the Company and the Trustee.
"Proceeds" means "proceeds," as such term is defined in the
UCC, and in any event, includes whatever is receivable or received from
or upon the sale, lease, license, collection, use, exchange or other
disposition, whether voluntary or involuntary, of any Collateral or
other assets of the Company, any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to or for the account of the
Company from time to time with respect to any of the Collateral, any
and all payments (in any form whatsoever) made or due and payable to
the Company from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of
the Collateral by any Governmental Authority (or any Person acting
under color of Governmental Authority), any and all other amounts from
time to time paid or payable under or in connection with any of the
Collateral or for or on account of any damage or injury to or
conversion of any Collateral by any Person, any and all other tangible
or intangible property received upon the sale or disposition of
Collateral, and all proceeds of proceeds.
"Rights to Payment" means all Accounts, and any and all rights
and claims to the payment or receipt of money or other forms of
consideration of any kind in, to and under all Chattel Paper,
Documents, General Intangibles, Instruments and Proceeds.
"Secured Obligations" means all Indenture Obligations (as
defined in the Indenture).
"Transaction Documents" means the Indenture, the Collateral
Security Documents and any and all other agreements, instruments and
documents executed or delivered in connection therewith.
"Trustee" has the meaning set forth in the preamble.
"UCC" means the Uniform Commercial Code as the same may, from
time to time, be in effect in the State of New York; provided, in the
event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of the security interest in any
Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, the term "UCC" shall
mean the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such
attachment, perfection or priority and for purposes of definitions
related to such provisions.
1.3 TERMS DEFINED IN UCC. Where applicable and except as otherwise
defined herein, terms used in this Agreement shall have the meanings assigned to
them in the UCC.
SECTION 2. SECURITY INTEREST
2.1 GRANT OF SECURITY INTEREST. As security for the payment and
performance of the Secured Obligations, and to induce the Trustee to enter into
the Indenture and the Holders to accept and exchange the Securities and to
authenticate the Securities as provided therein, the Company grants, pledges,
assigns, transfers, hypothecates and sets over to the Trustee for the benefit of
itself and the Holders, a security interest in all of the Company's right, title
and interest in, to and under the following property, wherever located and
whether now existing or owned or hereafter acquired or arising (collectively,
the "Collateral"): (i) all Accounts; (ii) all Chattel Paper; (iii) all Deposit
Accounts; (iv) all Documents; (v) all General Intangibles; (vi) all Instruments;
(vii) all Books; (viii) all Fixtures; (ix) all Investment Property; (x) all
Equipment, (xi) all Inventory, (xii) all money, cash or cash equivalents; and
(xiii) all products and Proceeds of any and all of the foregoing; provided, that
the Collateral will not include (a) General Intangibles which by their terms are
unassignable to the extent that consent to such an assignment is not obtained
and (b) intent to use trademark applications to the extent such trademark
applications would be void or voidable as a result of the pledge and collateral
assignment hereunder.
2.2 COMPANY REMAINS LIABLE. Anything herein to the contrary
notwithstanding, (i) the Company shall remain liable under any contracts,
agreements and other documents included in the Collateral, to the extent set
forth therein, to perform all of its duties and obligations thereunder to the
same extent as if this Agreement had not been executed, (ii) the exercise by the
Trustee of any of the rights hereunder shall not release the Company from any of
its duties or obligations under such contracts, agreements and other documents
included in the Collateral and (iii) neither the Trustee nor any Holder shall
have any obligation or liability under any contracts, agreements and other
documents included in the Collateral by reason of this Agreement, nor shall the
Trustee or any Holder be obligated to perform any of the obligations or duties
of the Company thereunder or to take any action to collect or enforce any such
contract, agreement or other document included in the Collateral hereunder.
2.3 CONTINUING SECURITY INTEREST. The Company agrees that this
Agreement shall create a continuing security interest in the Collateral which
shall remain in effect until terminated in accordance with Section 11.15.
SECTION 3. FINANCING STATEMENTS ETC.
The Company shall execute, deliver, file and record concurrently with
the execution of this Agreement, and at any time and from time to time
thereafter, all financing statements, continuation financing statements,
termination statements, security agreements, chattel mortgages, assignments,
patent, copyright and trademark collateral assignments, fixture filings, blocked
account agreements, warehouse receipts, documents of title, affidavits, reports,
notices, schedules of account, letters of authority and all other documents and
instruments, in form satisfactory to the Trustee (the "Financing Statements"),
and take all other action, at the Company's expense, to perfect and continue
perfected, maintain the priority of or provide notice of the Trustee's security
interest in the Collateral and to accomplish the purposes of this Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES
In addition to and not in limitation of the representations and
warranties of the Company set forth in the Indenture, the Company represents and
warrants to the Trustee that:
4.1 LOCATION OF CHIEF EXECUTIVE OFFICE AND COLLATERAL. The Company's
chief executive office, corporate office and principal place of business is
located at the address set forth in Schedule A, and all other locations where
the Company conducts business or Collateral is kept are set forth in Schedule A.
4.2 LOCATIONS OF BOOKS. All locations where Books pertaining to the
Rights to Payment are kept, including all equipment necessary for accessing such
Books and the names and addresses of all service bureaus, computer or data
processing companies and other Persons keeping any Books or collecting Rights to
Payment for the Company, are set forth in Schedule B.
4.3 TRADE NAMES AND TRADE STYLES. All trade names and trade styles
under which the Company presently conducts its business operations are set forth
in Schedule C, and, except as set forth in Schedule C, the Company has not, at
any time during the preceding five years (i) been known as or used any other
corporate, trade or fictitious name, (ii) changed its name, (iii) been the
surviving or resulting corporation in a merger or consolidation or (iv) acquired
through asset purchase or otherwise any business of any Person.
4.4 OWNERSHIP OF COLLATERAL. The Company is, and, except as permitted
by Section 5.9, will continue to be, the legal and beneficial owner of the
Collateral (or, in the case of after-acquired Collateral, at the time the
Company acquires rights in such Collateral, will be the legal and beneficial
owner thereof), and has good, indefeasible and merchantable title to the
Collateral free and clear of any and all Liens other than Permitted Liens.
4.5 ENFORCEABILITY; PRIORITY OF SECURITY INTEREST. (i) This Agreement
creates a valid and continuing security interest which is enforceable against
the Collateral in which the Company now has rights and will create a security
interest which is enforceable against the Collateral in which the Company
hereafter acquires rights at the time the Company acquires any such rights and
(ii) subject to Permitted Liens and assuming the filing by the Company of the
Financing Statements, the possession of Instruments and the control over
Investment Property, the Trustee has a perfected and first priority security
interest in the Collateral in which the Company now has rights, and will have a
perfected and first priority security interest in the Collateral in which the
Company hereafter acquires rights at the time the Company acquires any such
rights, in each case for the Trustee's own benefit or for the benefit of the
Holders, and in each case securing the payment and performance of the Secured
Obligations. All action necessary or desirable to protect and perfect such
security interest in the existing Collateral under the UCC has been duly taken.
4.6 OTHER FINANCING STATEMENTS. Other than (i) financing statements or
similar filings naming the owner of the asset to which such lien relates as
debtor, under the UCC or any comparable law ("UCC Financing Statements")
disclosed to the Trustee and filed in connection with the Permitted Liens and
(ii) UCC Financing Statements in favor of the Trustee in its capacity as Trustee
for the benefit of itself and the Holders under the Indenture and any other
Transaction Documents, no effective UCC Financing Statement naming the Company
as debtor, assignor, grantor, mortgagor, pledgor or the like and covering all or
any part of the Collateral is on file in any filing or recording office in any
jurisdiction.
4.7 RIGHTS TO PAYMENT. The Rights to Payment represent valid, binding
and enforceable obligations of the account debtors or other Persons obligated
thereon, representing undisputed, bona fide transactions completed in accordance
with the terms and provisions contained in any documents related thereto, and
are and will be genuine, free from Liens other than Permitted Liens, and not
subject to any adverse claims, counterclaims, setoffs, defaults, disputes,
defenses, discounts, retainages, holdbacks or conditions precedent of any kind
of character, except to the extent permitted under the Indenture and for
ordinary course setoffs and asserted claims or to the extent, if any, that such
account debtors or other Persons may be entitled to normal and ordinary course
trade discounts, returns, adjustments and allowances in accordance with Section
5.15, or as otherwise disclosed to the Trustee in writing;
(A) the Company has not assigned any of its rights under the
Rights to Payment except as provided in this Agreement or as
set forth in the Indenture or other Transaction Documents; and
(B) the Company has no knowledge of any fact or circumstance which
would impair the validity or collectibility of any of the
Rights to Payment.
4.8 INVENTORY. With respect to any Inventory in which the Trustee is
granted a security interest pursuant to the terms of this Agreement, (i) such
Inventory is located at the locations set forth on Schedule A, (ii) no Inventory
is now, or shall at any time or times hereafter be stored with a bailee,
warehouseman or similar party (except as disclosed on Schedule D) without the
Trustee's prior written consent, and if the Trustee gives such written consent,
the Company will concurrently therewith at the Trustee's reasonable request use
its best efforts to cause any such bailee, warehouseman or similar party to
issue and deliver to the Trustee in form and substance acceptable to the
Trustee, warehouse receipts therefor in the Trustee's name, (iii) such Inventory
is of good and merchantable quality, free from any material defects, (iv) such
Inventory is not subject to any licensing, patent, royalty, trademark, trade
name or copyright agreements with any third parties which would require any
consent of any third party upon sale or disposition of that Inventory or the
payment of any monies to any third party as a precondition of such sale or other
disposition and (v) the completion of manufacture, sale or other disposition of
such Inventory by the Trustee following a Default or an Event of Default will
not require the consent of any Person and will not constitute a breach or
default under any contract or agreement to which the Company is a party or to
which such Inventory is subject.
4.9 INTELLECTUAL PROPERTY. Except as set forth in Schedule E, the
Company does not own, possess or use under any licensing arrangement any
patents, copyrights, trademarks, service marks or trade names, nor is there
currently pending before any Governmental Authority any application for
registration of any patent, copyright, trademark, service xxxx or trade name;
(A) all patents, copyrights, trademarks, service marks and trade
names are subsisting and none have been adjudged invalid or
unenforceable in whole or in part;
(B) all maintenance fees required to be paid on account of any
patents have been timely paid for maintaining such patents in
force, and, to the Company's knowledge, each of the patents is
valid and enforceable;
(C) to the Company's knowledge after due inquiry, no material
infringement or unauthorized use presently is being made of
any Intellectual Property Collateral by any Person;
(D) the Company is the sole and exclusive owner of the
Intellectual Property Collateral identified on Schedule E
(other than Intellectual Property Collateral licensed by the
Company) and the past, present and contemplated future use of
such Intellectual Property Collateral by the Company has not,
does not and will not infringe or violate any right, privilege
or license agreement of or with any other Person; and
(E) the Company either owns, has material rights under, is a party
to, or an assignee of a party to all material licenses,
patents, patent applications, copyrights, service marks,
trademarks, trademark applications, trade names and all other
Intellectual Property Collateral necessary to continue to
conduct its business as heretofore conducted.
4.10 EQUIPMENT. None of the Equipment or other Collateral is affixed to
real property, except Collateral with respect to which the Company has made all
fixture filings required to perfect and protect the priority of the Trustee's
security interest in all such Collateral which may be fixtures as against all
Persons having an interest in the premises to which such property may be
affixed.
4.11 DEPOSIT ACCOUNTS. The names and addresses of all financial
institutions at which the Company maintains its Deposit Accounts, and the
account numbers and account names of such Deposit Accounts, are set forth in
Schedule F.
4.12 CHATTEL PAPER AND INSTRUMENTS. All action necessary to protect and
perfect the security interest of the Trustee in all Instruments (including the
delivery of all originals thereof to the Trustee) has been duly taken. With
respect to Chattel Paper in which the Trustee is granted a security interests
under the terms of this Agreement:
(A) all action necessary to protect and perfect the security
interest in the specific goods underlying Chattel Paper has
been duly taken;
(B) all original documentation evidencing Chattel Paper is in the
possession of the Company; and
(C) all original documentation evidencing Chattel Paper has been
marked with a legend as described in Section 5.13.
SECTION 5. COVENANTS
In addition to and not in limitation of the covenants of the Company
set forth in the Indenture, so long as any of the Secured Obligations remain
unsatisfied, the Company agrees that:
5.1 DEFENSE OF COLLATERAL. The Company will defend the Collateral
against all claims and demands of all Persons at any time claiming the same or
any interest therein adverse to the Trustee other than holders of Permitted
Liens.
5.2 PRESERVATION OF COLLATERAL. The Company shall maintain, preserve
and protect the Collateral which is used or useful in its business in good
working order and condition, ordinary wear and tear excepted and make all
necessary repairs thereto and renewals and replacements thereof except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect, except as permitted by the Indenture.
5.3 COMPLIANCE WITH LAWS, ETC. The Company will comply with all
requirements of law of any Governmental Authority having jurisdiction over it or
its business (including the Federal Fair Labor Standards Act) relating in a
material way to the possession, operation, maintenance and control of the
Collateral, except such as may be contested in good faith or as to which a bona
fide dispute may exist and except to the extent that noncompliance could not
reasonably be expected to materially adversely effect the value of the
Collateral or the worth of the Collateral as Collateral Security or have a
Material Adverse Effect.
5.4 LOCATION OF BOOKS AND CHIEF EXECUTIVE OFFICE. The Company will (i)
keep all Books pertaining to the Rights to Payment at the locations set forth in
Schedule B and (ii) give at least thirty days' prior written notice to the
Trustee of (a) any changes in any such location where Books pertaining to the
Rights to Payment are kept, including any change of name or address of any
service bureau, computer or data processing company or other Person preparing or
maintaining any Books or collecting Rights to Payment for the Company or (b) any
changes in the location of the Company's chief executive office or principal
place of business.
5.5 LOCATION OF COLLATERAL AND DEPOSIT ACCOUNTS. The Company will (i)
keep the Collateral at the locations set forth in Schedule A or Schedule D and
not remove the Collateral from such locations (other than Collateral in transit
between locations listed in Schedule A or Schedule D in the ordinary course of
business and disposals of Collateral permitted by clause (i) below) except upon
at least thirty days' prior written notice of any removal to the Trustee, (ii)
give the Trustee at least thirty days' prior written notice of any change in the
locations set forth in Schedule A or Schedule D and (iii) give the Trustee at
least thirty days' prior written notice of the creation and maintenance of any
Deposit Account not set forth on Schedule F.
5.6 CHANGE IN NAME, IDENTITY OR STRUCTURE. The Company will give the
Trustee at least thirty days' prior written notice of (i) any change in name,
(ii) any changes in, additions to or other modifications of its trade names and
trade styles set forth in Schedule C and (iii) any changes in its identity or
structure in any manner which might make any Financing Statement filed hereunder
incorrect or misleading in such a manner as would require the refiling of
Financing Statements under the UCC.
5.7 MAINTENANCE OF RECORDS. The Company will keep accurate and complete
Books with respect to the Collateral, and shall legend the Books pertaining to
such Collateral with an appropriate disclosure of the Trustee's security
interest hereunder.
5.8 DISPOSITION OF COLLATERAL. The Company will not surrender or lose
possession of (other than to the Trustee), sell, lease, rent, or otherwise
dispose of or transfer any of the Collateral or any right or interest therein,
except to the extent permitted by the Indenture.
5.9 LIENS. Other than liens in favor of the Trustee in its capacity as
Trustee under the Indenture and Permitted Liens, the Company will keep the
Collateral free of all Liens.
5.10 EXPENSES. The Company will maintain, keep and preserve the
Collateral at its own cost and expense in accordance with its customary business
practices.
5.11 LEASED PREMISES. At the Trustee's request, the Company will use
its best efforts to obtain from each Person from whom the Company leases any
premises at which any Collateral is at any time present such subordination,
waiver, consent and estoppel agreements as the Trustee may reasonably require,
in form and substance reasonably satisfactory to the Trustee.
5.12 RIGHTS TO PAYMENT. The Company will:
(A) with such frequency as the Trustee may reasonably require upon
the occurrence and during the continuance of an Insolvency
Default or an Event of Default, furnish to the Trustee (i)
master customer listings, including all names and addresses,
together with copies or originals (as requested by the
Trustee) of documents, customer statements, repayment
histories and present status reports relating to the Accounts,
(ii) accurate records and summaries of Accounts, including
detailed agings specifying the name, face value and date of
each invoice, and listings of Accounts that are disputed or
have been canceled and (iii) such other matters and
information relating to the Accounts as the Trustee shall from
time to time reasonably request;
(B) in accordance with its sound business judgment perform and
comply in all material respects with its obligations in
respect of the Accounts and other Rights to Payment;
(C) upon the request of the Trustee (i) at any time, notify all or
any designated portion of the account debtors and other
obligors on the Rights to Payment of the security interest
hereunder and (ii) if an Insolvency Default or an Event of
Default has occurred and is continuing, notify the account
debtors and other obligors on the Rights to Payment or any
designated portion thereof that payment shall be made directly
to the Trustee or to such other Person or location as the
Trustee shall specify; and
(D) establish such lockbox, blocked account or similar
arrangements for the payment of the Accounts and other Rights
to Payment as the Trustee shall require.
5.13 DOCUMENTS ETC. The Company will (i) immediately deliver to the
Trustee, or an agent designated by it, appropriately endorsed or accompanied by
appropriate instruments of transfer or assignment, all Documents and Instruments
and all other Rights to Payment at any time evidenced by promissory notes, trade
acceptances or other instruments and (ii) xxxx all Documents and Chattel Paper
with the following legend: "This writing and the obligations evidenced or
secured hereby are subject to the security interest of Norwest Bank Minnesota,
National Association, as trustee, for the benefit of itself and certain
holders." With respect to Chattel Paper in which the Trustee is granted a
security interests under the terms of this Agreement, the Company will
(A) take all action necessary to protect and perfect the security
interest in the specific goods underlying Chattel Paper;
(B) take possession of all original documentation evidencing
Chattel Paper; and
(C) not sell or transfer any Chattel Paper, whether in the
ordinary course of business or otherwise.
5.14 INVENTORY. The Company will:
(A) at such times as the Trustee shall reasonably request but in
any event not more than once each fiscal year, prepare and
deliver to the Trustee a report of all Inventory, in form and
substance satisfactory to the Trustee; and
(B) upon the request of the Trustee after an Insolvency Default or
an Event of Default has occurred and is continuing, take a
physical listing of the Inventory and promptly deliver a copy
of such physical listing to the Trustee.
5.15 EQUIPMENT. The Company will:
(A) upon the Trustee's reasonable request but in any event not
more than once each fiscal year, prepare and deliver to the
Trustee a report of each item of Equipment, in form and
substance satisfactory to the Trustee; and
(B) upon the request of the Trustee after an Insolvency Default or
an Event of Default has occurred and is continuing, take a
physical listing of the Equipment and promptly deliver a copy
of such physical listing to the Trustee.
5.16 INTELLECTUAL PROPERTY COLLATERAL. The Company will:
(A) not enter into any agreements or transactions (including any
license or royalty agreement) pertaining to any Intellectual
Property Collateral except in the ordinary course of business;
(B) if reasonably within the Company's abilities, not allow or
suffer any Intellectual Property Collateral to become
abandoned, nor any registration thereof to be terminated,
forfeited, expired or dedicated to the public unless such
Intellectual Property Collateral is no longer useful or
necessary to the operation of its business;
(C) diligently prosecute all applications for patents, copyrights
and trademarks useful and necessary to the operation of its
business, and file and prosecute any and all continuations,
continuations-in-part, applications for reissue, applications
for certificate of correction and like matters as shall be
reasonable and appropriate in accordance with prudent business
practice, and promptly and timely pay any and all maintenance,
license, registration and other fees, taxes and expenses
incurred in connection with any Intellectual Property
Collateral; and
(D) provide the Trustee on a quarterly basis with a list of all
new applications and registrations for United States and
foreign patents, copyrights, trademarks, service marks or
trade names, which such new applications and registrations
shall be subject to the terms and conditions of the Indenture
and this Agreement.
5.17 NOTICES, REPORTS AND INFORMATION. The Company will (i) furnish to
the Trustee such statements and schedules further identifying and describing the
Collateral and such other reports and other information in connection with the
Collateral as the Trustee may reasonably request, all in reasonable detail and
(ii) upon the reasonable request of the Trustee make such demands and requests
for information and reports as the Company is entitled to make in respect of the
Collateral.
5.18 FURTHER ASSURANCES; PLEDGE OF INSTRUMENTS. At any time and from
time to time at the sole expense of the Company, the Company shall promptly and
duly execute and deliver any and all such further instruments and documents and
take such further actions as are necessary to obtain the full benefits of this
Agreement and of the rights and powers herein granted, including without
limitation (i) upon the written request of the Trustee, using its best efforts
to secure all consents and approvals necessary or appropriate for the assignment
to or for the benefit of the Trustee for the benefit of itself and the Holders,
of any license or contract held by the Company or to which the Company has any
rights not heretofore assigned, or any other General Intangible which by its
terms is unassignable, (ii) in accordance with Section 5.02 of the Indenture,
filing any financing or continuation statements under the UCC with respect to
the Liens and security interests granted hereunder or under any other
Transaction Document, (iii) transferring Collateral to the Trustee's possession
for the benefit of itself and the Holders (if a security interest in such
Collateral can be perfected only by possession, but not including any Collateral
consisting of Chattel Paper, which shall remain in the Company's possession in
accordance with Section 4.12 hereof) and (iv) using its best efforts to obtain
waivers of Liens, if any exist, from landlords and mortgagees in accordance with
the Indenture. The Company also hereby authorizes the Trustee, for the benefit
of itself and the Holders to file any such financing or continuation statements
without the signature of the Company to the extent permitted by applicable law.
If any amount payable under or in connection with any of the collateral is or
shall become evidenced by any Instrument, such Instruments, other than checks
and Securities received in the ordinary course of business, shall be duly
endorsed in a manner satisfactory to the Trustee immediately upon the Company's
receipt thereof.
5.19 RIGHT OF INSPECTION. The Trustee, or any agent or employee
designated by the Trustee in writing, has the right, from time to time after the
date of this Agreement, to call at the Company's place or places of business (or
any other place where the Collateral or any information relating to the
Collateral is kept or located) during reasonable business hours and, without
unreasonable hindrance or delay, (i) to inspect, audit, check and make copies of
and extracts from the Company's books, records, journals, orders, receipts and
any correspondence and other data relating to the Company's business or to any
transactions between the parties thereto and (ii) to make such verification
concerning the Collateral as the Trustee may consider reasonable under the
circumstances.
SECTION 6. COLLECTION OF RIGHTS TO PAYMENT
Until the Trustee exercises its rights hereunder to collect Rights to
Payment, the Company shall endeavor in the first instance diligently to collect
all amounts due or to become due on or with respect to the Rights to Payment. At
the request of the Trustee, upon and after the occurrence of any Default or
Event of Default, all remittances received by the Company shall be held in trust
for the Trustee and, in accordance with the Trustee's instructions, remitted to
the Trustee or deposited to an account with the Trustee in the form received
(with any necessary endorsements or instruments of assignment or transfer).
SECTION 7. AUTHORIZATION; TRUSTEE APPOINTED ATTORNEY-IN-FACT
The Company hereby irrevocably constitutes and appoints the Trustee,
for the benefit of itself, the Holders and any officer or agent thereof, with
full power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Company and in the
name of the Company or in its own name, from time to time in the Trustee's sole
discretion for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute and deliver any and all documents
which may be necessary or desirable to accomplish the purposes of this Agreement
and, without limiting the generality of the foregoing, hereby grants to the
Trustee, for the benefit of itself and the Holders, the power and right, on
behalf of the Company, without notice to or assent by the Company, and at any
time, to do the following:
(A) sign any of the Financing Statements which must be executed or
filed to perfect or continue perfected, maintain the priority
of or provide notice of the Trustee's security interest in the
Collateral;
(B) take possession of and endorse any securities, acceptances,
checks, drafts, money orders or other forms of payment or
security and collect any Proceeds of any Collateral;
(C) sign and endorse any invoice or xxxx of lading relating to any
of the Collateral, warehouse or storage receipts, drafts
against customers or other obligors, assignments, notices of
assignment, verifications and notices to customers or other
obligors;
(D) notify the United States Postal Service authorities to change
the address for delivery of mail addressed to the Company to
such address as the Trustee may designate and, without
limiting the generality of the foregoing, establish with any
Person lockbox or similar arrangements for the payment of the
Rights to Payment;
(E) receive, open and dispose of all mail addressed to the
Company;
(F) send requests for verification of Rights to Payment to the
customers or other obligors of the Company;
(G) contact, or direct the Company to contact, all account debtors
and other obligors on the Rights to Payment and instruct such
account debtors and other obligors to make all payments
directly to the Trustee;
(H) assert, adjust, xxx for, compromise or release any claims
under any policies of insurance;
(I) exercise dominion and control over, and refuse to permit
further withdrawals from, Deposit Accounts maintained with the
Trustee;
(J) notify each Person maintaining lockbox or similar arrangements
for the payment of the Rights to Payment to remit all amounts
representing collections on the Rights to Payment directly to
the Trustee;
(K) ask, demand, collect, receive and give acquittances and
receipts for any and all Rights to Payment, enforce payment or
any other rights in respect of the Rights to Payment and other
Collateral, grant consents, agree to any amendments,
modifications or waivers of the agreements and documents
governing the Rights to Payment and other Collateral, and
otherwise file any claims, take any action or institute,
defend, settle or adjust any actions, suits or proceedings
with respect to the Collateral, as the Trustee may deem
necessary or desirable to maintain, preserve and protect the
Collateral, to collect the Collateral or to enforce the rights
of the Trustee with respect to the Collateral;
(L) execute any and all applications, documents, papers and
instruments necessary for the Trustee to use the Intellectual
Property Collateral and grant or issue any exclusive or
non-exclusive license or sublicense with respect to any
Intellectual Property Collateral;
(M) execute any and all endorsements, assignments or other
documents and instruments necessary to sell, lease, assign,
convey or otherwise transfer title in or dispose of the
Collateral;
(N) execute any and all such other documents and instruments, and
do any and all acts and things for and on behalf of the
Company, which the Trustee may deem necessary or advisable to
maintain, protect, realize upon and preserve the Collateral;
and
(O) execute any and all such other documents and instruments, and
do any and all acts and things for and on behalf of the
Company, which the Trustee may reasonably deem necessary or
advisable to maintain, protect and preserve the Trustee's
security interest in the Collateral.
The Trustee agrees that, except upon and during the occurrence of an Insolvency
Default or an Event of Default, it shall not exercise the power of attorney, or
any rights granted to the Trustee, pursuant to clauses (B) through (N) above.
The Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys. The
foregoing power of attorney is coupled with an interest and irrevocable so long
as the Secured Obligations have not been paid and performed in full. The Company
hereby ratifies, to the extent permitted by law, all that the Trustee shall
lawfully and in good faith do or cause to be done by virtue of and in compliance
with this Section 7.
SECTION 8. TRUSTEE PERFORMANCE OF COMPANY OBLIGATIONS
After a Default or an Event of Default has occurred and is continuing,
Trustee may perform or pay any obligation which the Company has agreed to
perform or pay under or in connection with this Agreement, and the Company shall
reimburse the Trustee on demand for any amounts paid by the Trustee pursuant to
this Section 8.
SECTION 9. TRUSTEE'S DUTIES
Notwithstanding any provision contained in this Agreement, but subject
to the following sentence and Section 5.07 of the Indenture, the Trustee shall
have no duty to exercise any of the rights, privileges or powers afforded to it
and shall not be responsible to the Company, any Holder (as defined in the
Indenture), subject to the Indenture and the Trust Indenture Act (as defined in
the Indenture), or any other Person for any failure to do so or delay in doing
so. Beyond the exercise of reasonable care to assure the safe custody of
Collateral in the Trustee's possession and the accounting for moneys actually
received by the Trustee hereunder, the Trustee shall have no duty or liability
to exercise or preserve any rights, privileges or powers pertaining to the
Collateral.
SECTION 10. REMEDIES
10.1 REMEDIES. After an Event of Default has occurred and is
continuing, the Trustee shall have, in addition to all other rights and remedies
granted to it in this Agreement, the Indenture or any other Transaction
Document, all rights and remedies of a secured party under the UCC and other
applicable laws. Without limiting the generality of the foregoing, the Company
agrees that the Trustee may:
(A) peaceably and without notice enter any premises of the
Company, take possession of any the Collateral, remove or
dispose of all or part of the Collateral on any premises or
elsewhere, or, in the case of Equipment, render it
nonfunctional, and otherwise collect, receive, appropriate and
realize upon all or any part of the Collateral, and demand,
give receipt for, settle, renew, extend, exchange, compromise,
adjust, or xxx for all or any part of the Collateral, as the
Trustee may determine;
(B) require the Company to assemble all or any part of the
Collateral and make it available to the Trustee at any place
and time designated by the Trustee;
(C) use or transfer any of the Company's rights and interests in
any Intellectual Property Collateral, by license, by
sublicense (to the extent permitted by an applicable license)
or otherwise, on such conditions and in such manner as the
Trustee may determine;
(D) secure the appointment of a receiver of the Collateral or any
part thereof to the extent and in the manner provided by
applicable law;
(E) withdraw (or cause to be withdrawn) any and all funds from
Deposit Accounts; and
(F) sell, resell, lease, use, assign, transfer or otherwise
dispose of any or all of the Collateral in its then condition
or following any commercially reasonable preparation or
processing (utilizing in connection therewith any of the
Company's assets, without charge or liability to the Trustee
therefor) at public or private sale, by one or more contracts,
in one or more parcels, at the same or different times, for
cash or credit, or for future delivery without assumption of
any credit risk, all as the Trustee deems advisable; provided,
that the Company shall be credited with the net proceeds of
sale only when such proceeds are finally collected by the
Trustee. The Trustee shall have the right upon any such public
sale, and, to the extent permitted by law, upon any such
private sale, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption,
which right or equity of redemption the Company hereby
releases, to the extent permitted by law. The Company hereby
agrees that the sending of notice by ordinary mail, postage
prepaid, to the address of the Company set forth in the
Indenture, of the place and time of any public sale or of the
time after which any private sale or other intended
disposition is to be made, shall be deemed reasonable notice
thereof if such notice is sent ten days prior to the date of
such sale or other disposition or the date on or after which
such sale or other disposition or the date on or after which
such sale or other disposition may occur; provided, that the
Trustee may provide the Company shorter notice or no notice,
to the extent permitted by the UCC or other applicable law.
10.2 LICENSE. For the purpose of enabling the Trustee to exercise its
rights and remedies under this Section 10, the Company hereby grants, to the
extent it has the power and authority to do so, to the Trustee an irrevocable,
non-exclusive and assignable license (exercisable without payment or royalty or
other compensation to the Company) to use, license or sublicense any
Intellectual Property Collateral.
10.3 PROCEEDS ACCOUNT. To the extent that any of the Secured
Obligations may be contingent, unmatured or unliquidated at such time as there
may exist an Insolvency Default or an Event of Default, the Trustee may, at its
election, (i) retain the proceeds of any sale, collection, disposition or other
realization upon the Collateral (or any portion thereof) in a special purpose
non-interest bearing restricted deposit account (the "Proceeds Account") created
and maintained by the Trustee for such purpose (which shall constitute a Deposit
Account included within the Collateral hereunder) until such time as the Trustee
may elect to apply such proceeds to the Secured Obligations, and the Company
agrees that such retention of such proceeds by the Trustee shall not be deemed
strict foreclosure with respect thereto, (ii) in any manner elected by the
Trustee, estimate the liquidated amount of any such contingent, unmatured or
unliquidated claims and apply the proceeds of the Collateral against such amount
or (iii) otherwise proceed in any manner permitted by applicable law. The
Company agrees that the Proceeds Account shall be a blocked account and that
upon the irrevocable deposit of funds into the Proceeds Account, the Company
shall not have any right of withdrawal with respect to such funds. Accordingly,
the Company irrevocably waives until the termination of the security interests
granted under this Agreement in accordance with Section 11.15 the right to make
any withdrawal from the Proceeds Account and the right to instruct the Trustee
to honor drafts against the Proceeds Account.
10.4 APPLICATION OF PROCEEDS. Subject to Section 10.3, the cash
proceeds actually received from the sale or other disposition or collection of
Collateral upon the exercise of any remedy by the Trustee under this Section 10,
and any other amounts received in respect of the Collateral the application of
which is not otherwise provided for herein, shall be distributed to the Holders
pro rata and applied as follows:
First: to the payment of the costs and expenses of such sale, including
reasonable compensation to the Trustee and its agents and attorneys,
and of any judicial or private proceedings in which such sale may be
made, 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 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 Secured
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 Secured Obligation 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 Secured Obligation
secured by this Agreement, to be applied in accordance with the
Indenture; and
Fifth: the surplus, if any, to be paid to the Company or to whomever
lawfully may be entitled to receive such surplus.
The Company shall remain liable to the Trustee for any deficiency which exists
after any sale or other disposition or collection of Collateral.
SECTION 11. MISCELLANEOUS
11.1 CERTAIN WAIVERS. The Company waives, to the fullest extent
permitted by law, (i) any right of redemption with respect to the Collateral,
whether before or after sale hereunder, and all rights, if any, of marshaling of
the Collateral or other collateral or security for the Secured Obligations, (ii)
any right to require the Trustee (a) to proceed against any Person, (b) to
exhaust any other collateral or security for any of the Secured Obligations, (c)
to pursue any remedy in the Trustee's power or (d) to make or give any
presentments, demands for performance, notices of nonperformance, protests,
notices of protests or notices of dishonor in connection with any of the
Collateral and (iii) all claims, damages, and demands against the Trustee
arising out of the repossession, retention, sale or application of the proceeds
of any sale of the Collateral.
11.2 NOTICES. All notices or other communications hereunder shall be
given in the manner and to the addresses specified in the Indenture. All such
notices and other communications shall be effective (i) if delivered by hand or
pre-paid courier service, when delivered, (ii) if sent by mail, upon the earlier
of the date of receipt or five Business Days after deposit in the mail, first
class, postage prepaid, (iii) if sent by telex, upon receipt by the sender of an
appropriate answerback and (iv) if sent by facsimile transmission, upon receipt
of electronic confirmation of receipt.
11.3 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.
11.4 COSTS AND EXPENSES; INDEMNIFICATION; OTHER CHARGES.
(A) The Company shall pay, indemnify, and hold the Trustee, each
Holder and each of their respective Affiliates, officers,
directors, employees, counsel, agents and attorneys-in-fact
harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, charges, expenses or disbursements, of any kind
or nature whatsoever in accordance with the terms and
conditions of the Indenture except to the extent arising from
the Trustee's or such Holder's gross negligence, bad faith,
wilful misconduct or fraud.
(B) The Company agrees to indemnify the Trustee against and hold
it harmless from any and all present and future stamp,
transfer, 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.
(C) Any amounts payable to the Trustee and each Holder under this
Section 11.4 or otherwise under this Agreement if not paid
upon demand shall bear interest from the date of such demand
until paid in full, at the rate of interest set forth in the
Indenture for the Securities.
11.5 BINDING EFFECT. This Agreement shall be binding upon, inure to the
benefit of and be enforceable by the Company and the Trustee, and their
respective successors and assigns; provided, that the Company may not assign any
of its rights hereunder or interests herein without the written consent of the
Trustee and the Majority Holders. The Company acknowledges that upon any
assignment or other transfer by the Trustee or any Holder of any of the Secured
Obligations, the Trustee or such Holder may transfer its interest herein, or any
part thereof, to the assignee or transferee, who shall thereupon become vested
with all the rights, remedies, powers, security interests and liens herein
granted to the Trustee or such Holder, or the transferred part thereof, subject,
however, to the restrictions contained herein. No Persons other than the
Company, the Holders, the Trustee and the respective assignees of the Holders
and the Trustee are intended to be benefited hereby or shall have any rights
hereunder, as third-party beneficiaries or otherwise.
11.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED, THAT THE TRUSTEE
AND THE HOLDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
11.7 FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE COMPANY AND THE TRUSTEE FOR
THE BENEFIT OF ITSELF AND THE HOLDERS EACH CONSENT, FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE COMPANY AND
THE TRUSTEE FOR THE BENEFIT OF ITSELF AND THE HOLDERS EACH IRREVOCABLY WAIVE ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY AND THE TRUSTEE FOR THE
BENEFIT OF ITSELF AND THE HOLDERS, EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
NEW YORK LAW.
11.8 WAIVER OF JURY TRIAL. THE COMPANY AND THE TRUSTEE FOR THE BENEFIT
OF ITSELF AND THE HOLDERS EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY AND THE
TRUSTEE FOR THE BENEFIT OF ITSELF AND THE HOLDERS EACH AGREE THAT ANY SUCH CLAIM
OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO
A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION 11.8 AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT.
11.9 AMENDMENT. This Agreement shall not be amended except by the
written agreement of the parties as provided in the Indenture.
11.10 SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under all
applicable laws and regulations. If; however, any provision of this Agreement
shall be prohibited by or invalid under any such law or regulation in any
jurisdiction, it shall, as to such jurisdiction, be deemed modified to conform
to the minimum requirements of such law or regulation, or, if for any reason it
is not deemed so modified, it shall be ineffective and invalid only to the
extent of such prohibition or invalidity without affecting the remaining
provisions of this Agreement, or the validity or effectiveness of such provision
in any other jurisdiction. This Agreement is to be read, construed and applied
together with the Indenture and the other Transaction Documents which, taken
together, set forth the complete understanding and agreement of the Trustee, the
Holders and the Company with respect to the matters referred to herein and
therein.
11.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute but one and the same agreement.
11.12 NO INCONSISTENT REQUIREMENTS. The Company acknowledges that this
Agreement and the other Transaction Documents may contain covenants and other
terms and provisions variously stated regarding the same or similar matters, and
agrees that all such covenants, terms and provisions are cumulative and all
shall be performed and satisfied in accordance with their respective terms;
provided, in the event any terms or conditions contained herein conflict with
any term or condition set forth in the Indenture, such term or condition set
forth in the Indenture shall control.
11.13 ENTIRE AGREEMENT. This Agreement (i) integrates all the terms and
conditions mentioned herein or incidental hereto, (ii) supersedes all oral
negotiations and prior writings with respect to the subject matter hereof and
(iii) is intended by the parties as the final expression of the Agreement with
respect to the terms and conditions set forth in this Agreement and as the
complete and exclusive statement of the terms agreed to by the parties.
11.14 FURTHER ASSURANCES. The Company agrees upon the written request
of the Trustee or any Holder, to execute and deliver to the Trustee or such
Holder, from time to time, any additional instruments or documents reasonably
considered necessary by the Trustee or such Holder to cause this Agreement to
be, become or remain, valid and effective in accordance with its terms.
11.15 THE INDENTURE. Anything in this Agreement to the contrary
notwithstanding, Section 5.02 of the Indenture is incorporated by reference
herein, mutatis mutandis.
11.16 TERMINATION. Upon payment and performance in full of all Secured
Obligations, this Agreement and the security interests granted under this
Agreement shall terminate and the Trustee shall promptly execute and deliver to
the Company such documents and instruments reasonably requested by the Company
as shall be necessary to evidence termination of this Agreement and of all
security interests given by the Company to the Trustee hereunder; provided, that
the obligations of the Company under Section 11.4 shall survive such
termination.
* * * * *
Executed and delivered as of the date first above written.
MFN FINANCIAL CORPORATION
By:
Name:
Title:
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By:
Name:
Title:
SCHEDULE A
LOCATIONS OF CHIEF EXECUTIVE OFFICE AND OTHER
LOCATIONS, INCLUDING OF COLLATERAL
a. Chief Executive Office and Principal Place of Business:
b. Other locations where Company conducts business or Collateral is
kept:
SCHEDULE B
LOCATIONS OF BOOKS PERTAINING TO RIGHTS TO PAYMENT
SCHEDULE C
TRADE NAMES AND TRADE STYLES: OTHER CORPORATE, TRADE OR FICTITIOUS NAMES, ETC.
SCHEDULE D
INVENTORY STORED WITH WAREHOUSEMEN OR ON LEASED PREMISES, ETC.
SCHEDULE E
PATENTS, COPYRIGHTS, TRADEMARKS, ETC.
SCHEDULE F
DEPOSIT ACCOUNTS
