EXHIBIT 99.5
FOURTH LIMITED WAIVER AGREEMENT
This Fourth Limited Waiver Agreement (this "Agreement") dated as of
November 6, 1997 is entered into between Mercury Finance Company, a Delaware
corporation ("Mercury") and Credit Suisse First Boston Management Corporation
("CS/FB"), holder of $16,625,000 in Mercury Commercial Paper acquired on
February 5, 1997 from PaineWebber Inc., successor to Xxxxxx, Xxxxxxx & Co.,
Incorporated (the "Dealer") under that certain Commercial Paper Dealer
Agreement dated as of March 25, 1991 (the "Dealer Agreement").
W I T N E S S E T H :
WHEREAS, Dealer is party to the Dealer Agreement under which Mercury has
issued commercial paper to customers of the Dealer (the "Customers"), one of
whom is CS/FB, which commercial paper is in default;
WHEREAS, Mercury is in default under various provisions of other lending
agreements with various institutions;
WHEREAS, in late January 1997, Mercury began experiencing a severe
liquidity crisis and required immediate emergency financing to continue its
operations;
WHEREAS, in February 1997, to meet such emergency financing needs, Mercury
and certain of its subsidiaries (collectively, the "Borrowers") entered into a
Loan and Security Agreement with BankAmerica Business Credit, Inc. ("BABC")
dated as of February 7, 1997 (the "Bridge Loan Agreement") providing the
Borrowers with a secured revolving loan facility in an aggregate principal
amount not to exceed $50 million and having a maturity of March 10, 1997, with
an option to extend (the "Bridge Loan");
WHEREAS, the Borrowers required financing beyond March 10, 1997 to continue
their operations and therefore extended the maturity date of the Bridge Loan to
June 10, 1997 in accordance with the Second Amendment to Loan and Security
Agreement dated March 12, 1997 (the "Second Amendment");
WHEREAS, the Borrowers required financing beyond June 10, 1997 to continue
their operations and therefore BABC agreed to extend the maturity date of Bridge
Loan to January 6, 1998, in accordance with the terms set forth in the Third
Amendment attached hereto as Exhibit A (the "Third Amendment");
WHEREAS, certain provisions of the Dealer Agreement unless waived prohibit
the Borrowers from granting liens on their assets to secure indebtedness for
borrowed money and/or require that the Dealer be granted an equal or ratable
lien on such assets in the event such a lien is granted to another lender;
WHEREAS, in connection with the Bridge Loan, Mercury requested the Dealer,
on behalf of itself but not its Customers, to waive such provisions of the
Dealer Agreement to permit the Borrowers to obtain the financing they needed to
continue their operations through March 10, 1997, and the Dealer and CS/FB, as
one of the Dealer's Customers, granted such a waiver pursuant to a Limited
Waiver Agreement dated as of February 7, 1997;
WHEREAS, in connection with the extension of the maturity date of the
Bridge Loan from March 10, 1997 to June 10, 1997, Mercury requested the Dealer,
on behalf of itself but not its Customers, to waive such provisions of the
Dealer Agreement to permit the Borrowers to obtain the financing they needed to
continue their operations through June 10, 1997, and the Dealer and CS/FB, as
one of the Dealer's Customers, granted such a waiver pursuant to a Limited
Waiver Agreement dated as of March 10, 1997;
WHEREAS, in connection with the extension of the maturity date of the
Bridge Loan from June 10, 1997 to January 6, 1998, Mercury requested the Dealer,
on behalf of itself but not its Customers, to waive such provisions of the
Dealer Agreement to permit the Borrowers to obtain the emergency financing they
need to continue their operations, and the Dealer and CS/FB, as one of the
Dealer's Customers, granted such a waiver only to September 30, 1997 pursuant to
a Third Limited Waiver Agreement dated July 11, 1997;
WHEREAS, the Dealer, on behalf of itself but not its Customers, is now
willing to waive certain limited provisions of the Dealer Agreement through
January 6, 1998 to permit BABC to fund the Bridge Loan upon request of Mercury;
WHEREAS, CS/FB, as one of the Dealer's Customers, is willing to waive in
like manner and to like extent;
WHEREAS, Mercury has entered into Forbearance Agreements dated July 11,
1997 and is executing a First Amendment to Forbearance Agreements of even date
herewith (collectively, the "Amendment to Forbearance Agreements") with certain
holders of Funded Debt (as such term is defined in the Forbearance Agreements)
pursuant to which an escrow for the benefit of holders of Funded Debt is being
established to fund payment of certain amounts required to be paid to such
holders of Funded Debt under the Amendment to Forbearance Agreements (the
"Forbearance Escrow"); and
WHEREAS, CS/FB desires to waive certain limited provisions of the Dealer
Agreement to permit Mercury to establish the Forbearance Escrow;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Mercury and CS/FB agree as
follows:
1. Waiver. Solely in connection with the Bridge Loan in accordance with
the terms and conditions of the Third Amendment, CS/FB waives through 11:59(pm)
central standard time on January 6, 1998 compliance with any of the provisions
of the Dealer Agreement that (a) prohibit or restrict the granting of security
interests, liens or mortgages by any of the Borrowers to BABC (the "BABC Liens")
to secure the Bridge Loan or (b) result in or require the creation of a security
interest, lien or mortgage in favor of the Dealer or its customers on any assets
of the Borrowers as a result of the granting of the BABC Liens to secure the
Bridge Loan; provided, that the waivers set forth in this Section shall be
effective on the conditions that the (i) aggregate principal amount of loans
outstanding to the Borrowers under the Bridge Loan does not exceed $50 million
at any time and (ii) the BABC Liens secure only the Bridge Loan and do not
secure any other indebtedness for borrowed money outstanding as of the date
hereof or hereafter. CS/FB waives compliance with any provisions of the Dealer
Agreement that (a) prohibit or restrict the creation or operation of the
Forbearance Escrow and/or the entering into of the Forbearance Agreement or
(b) result in or require the creation of an escrow, security interest, lien or
mortgage in favor of CS/FB on any assets of the Borrowers as a result of the
creation or operation of the Forbearance Escrow and/or the entering into of the
Forbearance Agreement.
2. Entire Agreement. This Agreement constitutes the full and entire
understanding of the parties hereto with respect to the subject matter hereof.
3. Governing Law. This Agreement shall be interpreted, and the rights
and liabilities of the parties hereto determined, in accordance with the laws of
the State of New York.
4. Successors and Assigns. This Agreement shall insure to the benefit
of, and be binding upon the successors and assigns of, each of the parties
hereto.
5. Counterparts. This Agreement may be executed in any number of
counterparts all of which together shall constitute one instrument.
* * * * *
IN WITNESS WHEREOF, this Waiver Agreement has been duly executed as of the
day and year first above written.
MERCURY FINANCE COMPANY,
a Delaware corporation
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON MANAGEMENT
CORPORATION
By:
Name: ____________________
Title: ____________________
EXHIBIT A
FOURTH AMENDMENT
