Exhibit 4.4
EXECUTION COPY
MFN GUARANTY
THIS MFN GUARANTY (this "MFN Guaranty"), dated as of March 1, 2001,
made by MFN Financial Corporation ("MFN"), a Delaware corporation (the
"Guarantor"), in favor of the ▇▇▇▇▇ Fargo Bank Minnesota, National Association,
a national banking association ("▇▇▇▇▇ Fargo"), as Collateral Agent (the
"Collateral Agent") under the Receivables Financing Agreement referred to below.
W I T N E S S E T H:
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WHEREAS, pursuant to a Receivables Financing Agreement, dated as of
March 1, 2001 (together with all amendments and other modifications, if any,
from time to time thereafter made thereto, the "Receivables Financing
Agreement"), among MFN Funding LLC, a Delaware limited liability company, as
Borrower (the "Borrower"), Mercury Finance Company LLC ("Mercury Finance"), as
the initial Servicer (the "Servicer"), MFN, individually and as Performance
Guarantor, each Noncommitted Lender from time to time party thereto, each
Committed Lender from time to time party thereto, the Agent and ▇▇▇▇▇ Fargo, as
Custodian, Backup Servicer and Collateral Agent, the Lenders will make Advances
to the Borrower from time to time; and
WHEREAS, as a condition precedent to the making of the initial Advance
under the Receivables Financing Agreement, the Guarantor is required to execute
and deliver this MFN Guaranty; and
WHEREAS, as a condition precedent to the making of the initial Advance
under the Receivables Financing Agreement, Mercury Finance is required to
execute and deliver the Seller Guaranty (the "Seller Guaranty"); and
WHEREAS, the Guarantor has duly authorized the execution, delivery and
performance of this MFN Guaranty; and
WHEREAS, it is in the best interests of the Guarantor to execute this
MFN Guaranty inasmuch as the Guarantor will derive substantial direct and
indirect benefits from the Advances made from time to time to the Borrower by
the Lenders pursuant to the Receivables Financing Agreement;
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, and in order to induce the Lenders to make the Advances
(including the initial Advance) to the Borrower pursuant to the Receivables
Financing Agreement, the Guarantor agrees, for the benefit of the Collateral
Agent, as follows:
ARTICLE XXVII
DEFINITIONS
SECTION 27.1. Certain Terms. The following terms (whether or not
underscored) when used in this MFN Guaranty, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Borrower" is defined in the first recital.
"Collateral" is defined in the Membership Pledge Agreement.
"Event of Default" means:
(a) any default in the payment of any amount payable by the
Guarantor hereunder, which default shall continue for one Business Day;
(b) any failure by the Guarantor to perform or observe any
other term, covenant or agreement contained in this MFN Guaranty on its
part to be performed or observed and any such failure shall remain
unremedied for 10 days after knowledge thereof by the Guarantor or
after written notice thereof shall have been given by the Agent to the
Guarantor; or
(c) An Event of Bankruptcy shall have occurred and remain
continuing with respect to the Guarantor.
"Expected Loss Percentage" means 15% or such lesser percentage as shall
be set forth in a written notice delivered by the Agent to the Servicer from
time to time.
"Guaranteed Obligations" is defined in Section 2.1.
"Guarantor" is defined in the preamble.
"Lenders" is defined in the preamble.
"Maximum Principal Balance" means, as of any date, an amount equal to
the highest Aggregate Outstanding Principal Balance of the Receivables reported
on any Servicer's Certificate delivered on or prior to such date and after the
later of (i) the Closing Date and (ii) the closing date of the most recent
Take-Out Securitization.
"MFN Guaranty" is defined in the preamble.
"Receivables Financing Agreement" is defined in the first recital.
"Seller Guaranty" is defined in the third recital.
SECTION 27.2. Receivables Financing Agreement Definitions. Unless
otherwise defined herein or the context otherwise requires, terms used in this
MFN Guaranty, including its preamble and recitals, have the meanings provided in
the Receivables Financing Agreement.
ARTICLE XXVIII
MFN GUARANTY PROVISIONS
SECTION 28.1. MFN Guaranty. The Guarantor hereby absolutely,
unconditionally and irrevocably (all of the following guaranteed and indemnified
obligations being collectively called the "Guaranteed Obligations")
(a) guarantees the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise, of all Obligations of the Borrower now or
hereafter existing under the Receivables Financing Agreement, the Note
and each other Transaction Document, whether for principal, interest,
fees, expenses or otherwise, and all other obligations of the Borrower
to the Lenders, howsoever created, arising or evidenced, whether direct
or indirect, absolute or contingent or now or hereafter existing or due
or to become due (including in all cases all such amounts which would
become due but for the operation of the automatic stay under Section
362(a) of the United States Bankruptcy Code, 11 U.S.C.ss.362(a), and
the operation of Sections 502(b) and 506(b) of the United States
Bankruptcy Code, 11 U.S.C.ss.502(b) andss.506(b)), and
(b) indemnifies and holds harmless the Collateral Agent for
any and all costs and expenses (including reasonable attorney's fees
and expenses) incurred by the Collateral Agent, as the case may be, in
enforcing any rights under this MFN Guaranty;
provided, however, that the aggregate liability of the Guarantor under this MFN
Guaranty shall not exceed the product of (a) the Expected Loss Percentage times
(b) the Maximum Principal Balance as of the date of any demand on this MFN
Guaranty (the "Cap"). This MFN Guaranty constitutes a guaranty of payment when
due and not of collection, and the Guarantor specifically agrees that it shall
not be necessary or required that the Collateral Agent exercise any right,
assert any claim or demand or enforce any remedy whatsoever against the Borrower
(or any other Person) before or as a condition to the obligations of the
Guarantor hereunder.
SECTION 28.2. Acceleration of MFN Guaranty. The Guarantor agrees that,
in the event of the dissolution or insolvency of the Borrower or the Guarantor,
or the inability or failure of the Borrower or the Guarantor to pay debts as
they become due, or an assignment by the Borrower or the Guarantor for the
benefit of creditors, or the commencement of any case or proceeding in respect
of the Borrower or the Guarantor under any bankruptcy, insolvency or similar
laws, and if such event shall occur at a time when any of the Guaranteed
Obligations may not then be due and payable, the Guarantor will pay to the
Collateral Agent forthwith the full amount which would be payable hereunder by
the Guarantor if all such Guaranteed Obligations were then due and payable.
SECTION 28.3. MFN Guaranty Absolute, etc. This MFN Guaranty shall in
all respects be a continuing, absolute, unconditional and irrevocable guaranty
of payment, and shall remain in full force and effect until all Guaranteed
Obligations have been paid in full, all obligations of the Guarantor hereunder
shall have been paid in full and the Commitments of the Committed Lenders shall
have terminated. The Guarantor guarantees that the Guaranteed Obligations will
be paid strictly in accordance with the terms of the Receivables Financing
Agreement and each other Transaction Document under which they arise, regardless
of any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Collateral Agent. The liability
of the Guarantor under this MFN Guaranty shall be absolute, unconditional and
irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the
Receivables Financing Agreement, any Note or any other Transaction
Document;
(b) the failure of the Collateral Agent;
(i) to assert any claim or demand or to enforce any
right or remedy against the Borrower or any other Person
(including any other guarantor) under the provisions of the
Receivables Financing Agreement, any Note, any other
Transaction Document or otherwise, or
(ii) to exercise any right or remedy against any
other guarantor of, or collateral securing, any Guaranteed
Obligations;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any
other extension, compromise or renewal of any Guaranteed Obligation;
(d) any reduction, limitation, impairment or termination of
any Guaranteed Obligations for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be
subject to (and the Guarantor hereby waives any right to or claim of)
any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of, or any other event or
occurrence affecting, any Guaranteed Obligations;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms of
the Receivables Financing Agreement, any Note or any other Transaction
Document;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, the Seller
Guaranty or any other guaranty, held by the Collateral Agent securing
any of the Guaranteed Obligations;
(g) any recovery or demand for recovery made under the Seller
Guaranty; or
(h) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the
Borrower, any surety or any guarantor.
SECTION 28.4. Reinstatement, etc. The Guarantor agrees that this MFN
Guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment (in whole or in part) of any of the Guaranteed
Obligations is rescinded or must otherwise be restored by the Collateral Agent,
upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise,
as though such payment had not been made.
SECTION 28.5. Waiver, etc. The Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and this MFN Guaranty and any requirement that the
Collateral Agent protect, secure, perfect or insure any security interest or
Lien, or any property subject thereto, or exhaust any right or take any action
against the Borrower or any other Person (including any other guarantor) or
entity or any collateral securing any Guaranteed Obligations.
SECTION 28.6. Subrogation, etc. The Guarantor will not exercise any
rights which it may acquire by reason of any payment made hereunder, whether by
way of subrogation, reimbursement or otherwise, until the prior payment, in full
and in cash, of all Guaranteed Obligations without regard to the proviso in
Section 2.1. Any amount paid to the Guarantor on account of any payment made
hereunder prior to the payment in full of all Guaranteed Obligations shall be
held in trust for the benefit of the Collateral Agent and shall immediately be
paid to the Collateral Agent and credited and applied against the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms of the
Receivables Financing Agreement (or other agreement(s) pursuant to which such
Guaranteed Obligations are outstanding); provided, however, that if
(a) the Guarantor has made payment to the Collateral Agent of
all or any part of the Guaranteed Obligations, and
(b) all Guaranteed Obligations have been paid in full and the
Commitments and other commitments of the Committed Lenders to the
Borrower have permanently terminated,
the Collateral Agent agrees that, at the Guarantor's request, the Collateral
Agent will execute and deliver to the Guarantor appropriate documents (without
recourse and without representation or warranty) necessary to evidence the
transfer by subrogation to the Guarantor of an interest in the Guaranteed
Obligations resulting from such payment by the Guarantor. In furtherance of the
foregoing, for so long as any Guaranteed Obligations or Commitments and other
commitments of the Lenders to the Borrower remain outstanding, the Guarantor
shall refrain from taking any action or commencing any proceeding against the
Borrower (or its successors or assigns, whether in connection with a bankruptcy
proceeding or otherwise) to recover any amounts in respect of payments made
under this MFN Guaranty to the Collateral Agent.
SECTION 28.7. Successors, Transferees and Assigns; Transfers of Notes,
etc. This MFN Guaranty shall:
(a) be binding upon the Guarantor, and its successors,
transferees and assigns; and
(b) inure to the benefit of and be enforceable by the
Collateral Agent and each of its respective successors, transferees and
assigns.
Without limiting the generality of the foregoing clause (b), the Collateral
Agent may assign or otherwise transfer (in whole or in part) any Note or Loan
held by it to any other Person or entity, and such other Person or entity shall
thereupon become vested with all rights and benefits in respect thereof granted
to the Collateral Agent under any Transaction Document (including this MFN
Guaranty) or otherwise, subject, however, to any contrary provisions in such
assignment or transfer, and to the provisions of Article XVI of the Receivables
Financing Agreement.
SECTION 28.8. Joint and Several Liability. The obligations of the
Guarantor hereunder are joint and several with the obligations of the Seller
under the Seller Guaranty and in no event may the aggregate obligations of the
Guarantor hereunder and the Seller under the Seller Guaranty exceed the Cap.
ARTICLE XXIX
MISCELLANEOUS PROVISIONS
SECTION 29.1. Transaction Document. This MFN Guaranty is a Transaction
Document executed pursuant to the Receivables Financing Agreement and shall
(unless otherwise expressly indicated herein) be construed, administered and
applied in accordance with the terms and provisions thereof.
SECTION 29.2. Binding on Successors, Transferees and Assigns;
Assignment of MFN Guaranty. This MFN Guaranty shall be binding upon the
Guarantor and its successors, transferees and assigns and shall inure to the
benefit of and be enforceable by the Collateral Agent and its respective
successors, transferees and assigns; provided, however, that the Guarantor may
not assign any of its obligations hereunder without the prior written consent of
the Collateral Agent.
SECTION 29.3. Amendments, etc. No amendment to or waiver of any
provision of this MFN Guaranty, nor consent to any departure by the Guarantor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Collateral Agent, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 29.4. Addresses for Notices to the Guarantor. All notices and
other communications hereunder to the Guarantor shall be in writing (including
telegraphic communication) and mailed or telegraphed or delivered to it,
addressed to it at the address set forth below its signature hereto or at such
other address as shall be designated by the Guarantor in a written notice to the
Collateral Agent at the address specified in the Receivables Financing Agreement
complying as to delivery with the terms of this Section. All such notices and
other communications shall, when mailed or telegraphed, respectively, be
effective when deposited in the mails or delivered to the telegraph company,
respectively, addressed as aforesaid.
SECTION 29.5. No Waiver; Remedies. In addition to, and not in
limitation of, Section 2.3 and Section 2.5, no failure on the part of the
Collateral Agent to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 29.6. Section Captions. Section captions used in this MFN
Guaranty are for convenience of reference only, and shall not affect the
construction of this MFN Guaranty.
SECTION 29.7. Setoff. In addition to, and not in limitation of, any
rights of the Collateral Agent under applicable law, the Collateral Agent shall,
upon the occurrence of any Event of Default, have the right to appropriate and
apply to the payment of the obligations of the Guarantor owing to it hereunder,
whether or not then due, and the Guarantor hereby grants to the Collateral Agent
a continuing security interest in, any and all balances, credits, deposits,
accounts or moneys of the Guarantor then or thereafter maintained with the
Collateral Agent and any and all property of every kind or description of or in
the name of the Guarantor now or hereafter, for any reason or purpose
whatsoever, in the possession or control of, or in transit to, the Collateral
Agent or any agent or bailee for the Collateral Agent.
SECTION 29.8. Severability. Wherever possible each provision of this
MFN Guaranty shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this MFN Guaranty shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this MFN Guaranty.
SECTION 29.9. Governing Law, Entire Agreement, etc. THIS MFN GUARANTY
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH INTERNAL LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO ANY OTHERWISE APPLICABLE CONFLICT OF LAW
PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
THIS MFN GUARANTY AND THE OTHER TRANSACTION DOCUMENTS CONSTITUTE THE ENTIRE
UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION 29.10. Forum Selection And Consent To Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
MFN GUARANTY OR ANY OTHER TRANSACTION DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE COLLATERAL
AGENT OR THE GUARANTOR SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS
OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY PROPERTY MAY BE BROUGHT, AT THE COLLATERAL AGENT'S OPTION, IN THE
COURTS OF ANY JURISDICTION WHERE SUCH PROPERTY MAY BE FOUND. THE GUARANTOR
HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE
AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. THE GUARANTOR FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. THE GUARANTOR HEREBY EXPRESSLY
AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
THE GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, THE GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS MFN GUARANTY.
SECTION 29.11. Waiver of Jury Trial. THE GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS MFN GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE COLLATERAL AGENT OR THE
GUARANTOR. THE GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE LENDERS ENTERING INTO THE RECEIVABLES FINANCING
AGREEMENT.
SECTION 29.12. Termination. Subject to Section 2.4, the Guarantor's
guaranty and the duty of the Guarantor to perform the Guaranteed Obligations
shall immediately terminate upon the earlier of (a) the date of payment and
performance in full of the Guaranteed Obligations and (b) payment in full of the
maximum amount payable by the Guarantor hereunder.
IN WITNESS WHEREOF, the Guarantor has caused this MFN Guaranty to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
MFN FINANCIAL CORPORATION
By /s/ ▇▇▇▇▇▇▇ Weeden_______________
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Title: President______________________
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Attention: Treasurer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇