COMMERCIAL PAPER DEALER AGREEMENT
AGREEMENT dated as of March 25, 1991 between MERCURY FINANCE COMPANY,
a Delaware corporation (the "Company"), and XXXXXX, XXXXXXX & CO. INCORPORATED,
a Delaware corporation ("Xxxxxx").
The Company may desire to issue Notes (as hereinafter defined) from
time to time and to have Xxxxxx purchase Notes for its own account, as
principal, or arrange for the sale thereof for the account of the Company, as
agent, without recourse, and Xxxxxx is prepared to do so upon and subject to the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual agreements,
representations, warranties and covenants hereinafter contained, the parties
hereto agree as follows.
SECTION 1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
"Information Documents" means (i) the Offering Memorandum/Credit
Report, if any, delivered by Xxxxxx, pursuant to the Company's authorization, to
prospective purchasers of the Notes, to be prepared by and to contain the
information agreed upon by the Company and Xxxxxx, and any amendment or
supplement thereto and (ii) any other materials which the Company may deliver to
Xxxxxx with instructions to furnish the same to prospective purchasers of the
Notes.
"Issuing Agent" means Security Pacific National Trust Company (New
York), acting as issuing and paying or fiscal agent for the Company, or any
successor thereto which is a party to an Issuing and Paying Agreement.
"Issuing and Paying Agreement" means the agreement between the Company
and the Issuing Agent providing for the issuance and payment of the Notes, as
from time to time amended or modified, or any similar agreement with a successor
Issuing Agent.
"Note" means each promissory note of the Company issued pursuant to
and in substantially the form contemplated by the Issuing and Paying Agreement,
in a denomination of at least $100,000 and maturing not later than nine months
from the date of issue (exclusive of days of grace).
SECTION 2. ISSUANCE AND PURCHASE OF NOTES.
(a) The Company hereby appoints Xxxxxx to act as a dealer in
connection with the sale of the Notes in accordance with the terms hereof and
Xxxxxx hereby accepts such appointment. While (i) the Company has and shall
have no obligation to permit Xxxxxx to purchase any Notes for its own account or
to arrange for the sale of Notes for the account of the Company and (ii) Xxxxxx
has and shall have no obligation to purchase any Notes for its own account or to
arrange for the sale of Notes for the account of the Company, the parties agree
that, as to any and all Notes which Xxxxxx purchases or the sale of which Xxxxxx
arranges pursuant to this Agreement, such Notes will be purchased or sold by
Xxxxxx in reliance on, among other things, the agreements, representations,
warranties and covenants of the Company contained herein and on the terms and
conditions and in the manner provided for herein. Xxxxxx is authorized to sell
the Notes to or arrange the sale of the Notes with investors without recourse to
Xxxxxx.
(b) If the Company and Xxxxxx shall agree on the terms of the
purchase of any Note by Xxxxxx or the sale of any Note arranged by Xxxxxx
(including agreement with respect to the date of issue, purchase price,
principal amount, maturity, interest rate (in the case of interest-bearing
Notes) and discount rate thereof (in the case of Notes issued on a discount
basis), which shall include appropriate compensation for Xxxxxx'x services
hereunder) pursuant to this Agreement, the Company shall cause such Note to be
issued and delivered in accordance with the terms of the Issuing and Paying
Agreement. The authentication and delivery of such Note by the Issuing Agent
shall constitute the issuance of such Note by the Company. The Company shall
deliver Notes signed by the Company to the Issuing Agent and instructions shall
be delivered to the Issuing Agent to complete, authenticate and deliver such
Notes in the manner prescribed in the Issuing and Paying Agreement. Xxxxxx
shall be entitled to compensation at such rates and paid in such manner as the
Company and Xxxxxx shall from time to time agree and to reimbursement for its
out-of-pocket costs and expenses (including reasonable legal fees and
disbursements) in connection with the preparation of this Agreement, the
Information Documents and the other transactions contemplated hereby.
(c) Neither Xxxxxx nor the Company has or will have any agreement,
understanding or other arrangement for extension or automatic rollover of any
Notes issued by the Company and purchased or sold by Xxxxxx pursuant to this
Agreement.
(d) In connection with the issuance and placement of any Notes, the
Company hereby authorizes Xxxxxx to deliver the Information Documents to
prospective purchasers of such Notes. The Company shall promptly furnish to
Xxxxxx copies of all filings made by the Company with the Securities and
Exchange Commission and any United States securities exchange on which the
Company's securities are listed and copies of all proxy statements and other
information sent by the Company to its shareholders, in such quantities as
Xxxxxx may reasonably request from time to time for distribution to prospective
purchasers of the Notes. The Company shall also furnish to Xxxxxx copies of all
reports filed from time to time with rating agencies regarding it commercial
bank credit facilities and its outstanding commercial paper, copies of all
compliance certificates required to be delivered by the Company to lenders under
its credit facilities, and information generally supplied by the Company in
writing to securities analysts. In addition, the Company shall furnish to
Xxxxxx within thirty (30) days of the end of each calendar quarter a statement
showing in reasonable detail the origination activity and delinquency rates of
the Company's receivables as of the end of the preceding month.
(e) The Company shall promptly inform Xxxxxx by telephone, confirmed
in writing, if any event occurs or any circumstances exist as a result of which
the Information Documents (or any document delivered to Xxxxxx for delivery to
prospective purchasers of the Notes pursuant to paragraph (d) above) would
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company shall
respond fully and promptly to all reasonable requests for information concerning
the Company made from time to time by Xxxxxx.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to Xxxxxx that:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation and has
all requisite power, authority and legal right to make and perform the Notes,
this Agreement and the Issuing and Paying Agreement.
(b) The making and performance by the Company of this Agreement, the
Issuing and Paying Agreement and the Notes have been duly authorized by all
necessary corporate action of the Company and this Agreement and the Issuing and
Paying Agreement constitute, and the Notes when duly issued, authenticated and
delivered as provided in the Issuing and Paying Agreement will constitute,
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, except as enforceability may
be limited by general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) or by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors rights generally.
(c) No consent of any person, corporation or other entity, and no
consent or action of, or filing or registration with, any governmental or public
regulatory body or authority is required to authorize, or is otherwise required
in connection with, the making or performance or the validity or enforceability
of this Agreement, the Issuing and Paying Agreement or the Notes, except as may
be required by state securities laws.
(d) Except as set forth in the Information Documents, there are no
legal or governmental proceedings or investigations pending, or to the best
knowledge of the Company threatened, against the Company or any of its
subsidiaries which might have a material adverse effect on business, condition
(financial or otherwise) or operations of the Company and its subsidiaries taken
as a whole or on the ability of the Company to perform its obligations under
this Agreement, the Issuing and Paying Agreement or the Notes or in any manner
affect the validity or enforceability thereof.
(e) The making and performance by the Company of this Agreement, the
Notes and the Issuing and Paying Agreement do not and will not conflict with or
result in a breach of or constitute a default under (i) the certificate of
incorporation or by-laws of the Company, (ii) any law or regulation applicable
to the Company or (iii) any contract, indenture, mortgage, deed of trust or
other agreement or instrument or any order, judgment, writ, injunction or decree
to which the Company is a party or by which the Company or any of its material
properties is bound.
(f) The Notes will constitute direct, unconditional, unsecured
obligations of the Company ranking pari passu among themselves and with all
other unsecured, unsubordinated indebtedness of the Company.
(g) The information relating to the Company and its subsidiaries and
the Notes which has been provided by the Company to Xxxxxx, including without
limitation that which is contained in the Information Documents, does not and
will not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(h) The Notes are and will be exempt from the registration
requirements of the Securities Act of 1933, as amended (the "1933 Act"), by
reason of Section 3(a)(3) thereof, and neither registration of the Notes nor
qualification of an indenture with respect to the Notes under the Trust
Indenture Act of 1939, as amended, will be required in connection with the
offer, issuance, placement, sale or delivery of the Notes in accordance with the
terms of this Agreement and the Issuing and Paying Agreement.
(i) The Company is not an "investment company" or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
Each delivery of a Note to Xxxxxx or to a person whose purchase of the
Note was arranged by Xxxxxx shall constitute a representation and warranty by
the Company on the date of such delivery that (i) the representations and
warranties of the Company in this Section 3 are true and correct on and as of
such date with the same effect as if made on and as of such date, (ii) the Notes
issued on such date have been duly and validly issued and delivered in
accordance with the Issuing and Paying Agreement, and (iii) the Company has
complied or will comply, as the case may be, with all covenants contained in
this Agreement. The Company shall not issue or cause to be issued any Note
unless such representations and warranties are true and correct.
SECTION 4. CONDITIONS PRECEDENT TO THE SALE OF THE NOTES.
Prior to the first purchase or sale of Notes hereunder, Xxxxxx shall have
received the following documents:
(a) a favorable written opinion of counsel to the Company, addressed
to Xxxxxx and satisfactory in the form set forth in Exhibit A hereto;
(b) evidence (including certified copies of the Company's charter and
by-laws and of appropriate corporate resolutions and incumbency certificates)
satisfactory to Xxxxxx as to the due authorization of this Agreement, the
Issuing and Paying Agreement and the Notes:
(c) an executed copy of the Company's committed credit bank facility
which serves as the backup liquidity facility for the Notes;
(d) an original executed copy of the Issuing and Paying Agreement;
(e) the Company's written approval of the Information Documents and
authorization of Xxxxxx to deliver the same to prospective purchasers of the
Notes, with a copy thereof attached thereto;
(f) evidence as to the rating (such rating to be satisfactory to
Xxxxxx in its sole discretion) of the Notes by Fitch Investors, Inc. and Duff &
Xxxxxx Credit Rating Co.; and
(g) such other documents relating to the transactions contemplated
hereby as Xxxxxx may request.
SECTION 5. COVENANTS OF THE COMPANY.
The Company covenants with Xxxxxx that:
(a) The Company will use the proceeds of the Notes as required by
Section 3(a)(3) of the 0000 Xxx.
(b) The Company will endeavor, in cooperation with Xxxxxx, to qualify
the Notes for offer and sale under the applicable securities laws of such states
and other jurisdictions of the United States as Xxxxxx may reasonably designate,
and will maintain such qualifications in effect for as long as may reasonably be
required for the distribution of the Notes. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided.
(c) The Company will not permit to become effective any amendment,
supplement, waiver or consent to or under the Issuing and Paying Agreement which
might adversely affect the interests of the holder of any Note then
outstanding. The Company shall give Xxxxxx notice of any proposed amendment,
supplement, waiver or consent to or under the Issuing and Paying Agreement at
least 15 days prior to the effective date thereof.
(d) The Company shall cause Xxxxxx to receive on any date specified
by Xxxxxx in a notice to the Company delivered at least 15 days prior thereto
(which notice will not be given more than once in any six-month period) an
opinion of counsel to the Company, addressed to Xxxxxx and satisfactory in form
and substance to Xxxxxx, with respect to the matters set forth in the opinion to
be delivered pursuant to Section 4(a) hereof or such other matters as Xxxxxx may
request.
(e) The Company will at all times maintain unused, unsecured and
committed credit facilities with banks or other lending institutions reasonably
satisfactory to Xxxxxx in an amount (net of compensating balances, cash
collateral accounts and other similar arrangements restricting the availability
of funds thereunder) equal to at least 100% of the aggregate amount to be paid
upon maturity of the Notes then outstanding. The Company hereby agrees that
Xxxxxx may furnish a copy of such credit facilities to prospective purchasers of
the Notes. The Company will promptly furnish to Xxxxxx copies of all notices,
information and other documents given or delivered to or by the banks or other
lending institutions party to such credit facilities. The Company also will
give Xxxxxx prompt notice of (i) the occurrence of any default or termination or
reduction of the commitments under such credit facilities and (ii) any
discussions with the Company's banks or other lending institutions party to such
credit facilities regarding any proposed amendment, supplement or waiver of the
terms thereof at least ten business days prior to its agreeing to an amendment,
supplement or waiver of any of the terms of such credit facilities. The Company
will not create, incur or permit to exist any mortgage, pledge, lien, security
interest or encumbrance of any nature on any of its assets or the assets of any
of its subsidiaries to secure any indebtedness under the Company's credit
facilities unless the Notes are equally and ratably secured thereby in a manner
satisfactory to Xxxxxx.
SECTION 6. INDEMNIFICATION.
(a) The Company hereby indemnifies Xxxxxx and holds Xxxxxx harmless
from and against any and all losses, claims, liabilities, damages and expenses
as incurred (including without limitation reasonable legal fees and
disbursements) (collectively, "Losses") imposed upon, incurred by or asserted
against Xxxxxx, which directly or indirectly arise out of, are based upon or
relate to (i) any untrue representation, warranty or certification or any breach
of agreement of the Company made hereunder or in connection with this Agreement,
or (ii) any allegation that any Information Document includes an untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, including without limitation Losses arising out
of or relating to any investigation or litigation or other proceedings (whether
or not Xxxxxx is a party thereto), provided, that the foregoing indemnity shall
not apply to the extent any such Losses arise out of, are based upon or relate
to (x) Xxxxxx'x use of any Information Document in a form not approved by the
Company as herein contemplated or (y) information contained in any Information
Document concerning Xxxxxx.
(b) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 6 is for
any reason held unavailable other than as expressly provided above, the Company
and Xxxxxx shall, to the fullest extent permitted by law, contribute to the
aggregate costs of satisfying such Losses (i) in the proportion of their
respective economic interests in the transactions giving rise thereto or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the respective economic
interests referred to in clause (i) but also the relative fault of the Company
on the one hand and Xxxxxx on the other in connection with the events which
resulted in such Losses, as well as any other relevant equitable considerations.
(c) The indemnification provisions and related agreements contained
herein shall survive any termination of this Agreement and the delivery of and
payment of any Notes. The obligations of the Company under this Section 6 shall
extend to each employee, agent, officer and director of Xxxxxx and to each
corporation, entity or other person who controls Xxxxxx within the meaning of
the 1933 Act.
SECTION 7. MISCELLANEOUS.
(a) Unless otherwise specifically provided for herein, all notices or
communications under this Agreement shall be in writing and shall be personally
delivered or sent by certified mail, postage prepaid, and return receipt
requested, or by telex, telecopier or telegram (such telex, telecopy or telegram
to be tested, authenticated or otherwise promptly confirmed by letter), and
shall be deemed to have been duly given and effective when received by the
intended party at its address specified below or at such other address as such
recipient may designate from time to time by notice to the other party:
Xxxxxx: Xxxxxx, Peabody & Co. Incorporated
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Senior Vice President
Telephone No.: (000) 000-0000
Telecopier.:(000) 000-0000
The Company: Mercury Finance Company
00 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Chief Financial Officer
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(b) This Agreement shall be governed by, and construed in accordance
with, the laws of the state of New York.
(c) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; provided that
the Company shall not assign its rights or obligations hereunder. This
Agreement shall not be amended, supplemented, waived, modified or altered in any
manner whatsoever except by written instrument signed by each of the parties
hereto.
(d) This Agreement may be terminated by the Company or Xxxxxx without
assigning a reason therefor by written notice to the other part hereto, such
notice to take effect immediately or on such later date as shall be specified in
such notice; provided, however, that such termination shall not affect (i) any
obligation of the Company with respect to any Note outstanding or contracted to
be placed, purchased or sold at the time of such termination or with respect to
any action or event occurring prior to such termination, (ii) any obligation of
the Company under Section 6 and the last sentence of Section 2(b) hereof or
(iii) any obligation of Xxxxxx with respect to any prior agreement to purchase
or place any Note.
(e) This Agreement may be executed in two counterparts, each of which
shall constitute an original but both of which, when taken together, shall
constitute one and the same instrument.
(f) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
the remaining provisions hereof or affecting the validity or enforceability of
such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers on
the day and year first above written.
MERCURY FINANCE COMPANY
By
Title:
XXXXXX, XXXXXXX & CO. INCORPORATED
By:
Title:
