DEALER AGREEMENT
THIS DEALER AGREEMENT, dated as of October 24, 1994, between BA
Securities, Inc., a Delaware corporation (the "Dealer"), and Mercury Finance
Company, a Delaware corporation (the "Company").
WHEREAS, the Company desires to issue its short-term promissory notes
in the United States commercial paper market,
WHEREAS, the Company has requested the Dealer to act as dealer
therefor and the Dealer has indicated its willingness to do so on the terms and
conditions contained herein,
NOW, THEREFORE, the Dealer and the Company hereby agree as follows:
1. The Notes. The term "Notes" means short-term promissory notes of
the Company, each such note (a) having a maturity at the time of issuance of not
more than 270 days (exclusive of days of grace) and (b) not containing any
provision for automatic "rollover". The proceeds from the sale of the Notes
will be used by the Company for "current transactions" within the meaning of
Section 3(a)(3) of the Securities Act of 1933, as amended (the "1933 Act"). The
Notes will be issued in such face or principal amounts (but not less than
$100,000 each) and will bear such interest (if interest-bearing) or be sold at
such discounts, if any, from their face amounts, as shall be approved by the
Company.
2. Appointment of Dealer. The Company hereby appoints the Dealer to
be the dealer in respect of the Notes and the Dealer accepts such appointment
subject to the terms and conditions set forth herein. Although (a) the Company
has and shall have no obligation to sell Notes to the Dealer or to permit the
Dealer to arrange any sale of Notes for the account of the Company, and (b) the
Dealer has and shall have no obligation to purchase Notes from the Company or to
arrange any sale of Notes for the account of the Company, the parties hereto
agree that any sale of Notes to the Dealer or arranged by the Dealer will be
sold by the Dealer in reliance on, among other things, the representations,
warranties, covenants and agreements of the Company contained herein or made
pursuant hereto and on the terms and conditions and in the manner provided
herein. From time to time, the Company shall give the Dealer prior written
notice of the entity serving as the issuing and paying agent for the Notes (the
"Issuing and Paying Agent").
3. Issuance of Notes. (a) Prior to or on the date of the proposed
issuance of Notes, the Dealer and the Company shall confer as to the face or
principal amounts, maturities and denominations thereof, the applicable interest
rates or the discounts from the face amounts, at which the Notes are to be
issued. When the Company has approved such issuance, the Dealer will instruct
the Issuing and Paying Agent to deliver executed and countersigned Notes to the
persons specified by the Dealer on the date of issuance.
(b) The authentication and delivery of Notes pursuant hereto by the
Issuing and Paying Agent shall constitute the issuance of such Notes by the
Company. The Company agrees that (i) signed Notes in bearer form shall be
delivered to the Issuing and Paying Agent and (ii) instructions to the Issuing
and Paying Agent to complete, authenticate and deliver such Notes shall be made
in the manner prescribed in the agreement between the Company and the Issuing
and Paying Agent (as amended from time to time, the "Issuing and Paying Agency
Agreement").
4. Representations and Warranties. The Company represents and
warrants that: (a) the Company is a duly organized and validly existing
corporation in good standing under the laws of the state of its incorporation
and has the corporate power and authority to own its property and to carry on
its business as presently being conducted, to execute and deliver this
Agreement, the Issuing and Paying Agency Agreement and the Notes, and to perform
and observe the conditions hereof and thereof; (b) the execution and delivery
and performance of this Agreement and the Issuing and Paying Agency Agreement
and the issuance and sale of the Notes have been duly authorized by the Company,
and this Agreement and the Issuing and Paying Agency Agreement constitute, and
when the Notes have been duly executed by the Company and countersigned and
delivered by the Issuing and Paying Agent against payment therefor, such Notes
will constitute legal, valid and binding obligations of the Company, enforceable
in accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws relating to or affecting generally
the enforcement of creditors' rights or by general equitable principles; (c) 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 execution, delivery or performance of this Agreement,
the Issuing and Paying Agency Agreement or the Notes, except such as have
already been obtained; (d) neither the execution and delivery by the Company of
this Agreement, the Issuing and Paying Agency Agreement or the Notes, nor the
fulfillment of or compliance with the terms and provisions hereof or thereof by
the Company, will (i) result in the creation or imposition of any mortgage,
lien, charge or encumbrance of any nature whatsoever upon any of the properties
or assets of the Company; (ii) violate any of the terms of the Company's charter
documents or By-laws, any contract or instrument to which the Company is a party
or to which it or its property is bound, or any law or regulation or any order,
writ, injunction or decree of any court or governmental instrumentality, to
which the Company is subject or by which it or its property is bound; (e) each
Note issued by the Company pursuant to the terms hereof and of the Issuing and
Paying Agency Agreement is exempt from the registration requirements of the 1933
Act by reason of Section 3(a)(3) thereof, and neither registration of the Notes
under the 1933 Act nor qualification of an indenture under the Trust Indenture
Act of 1939, as amended, with respect to the Notes will be required in
connection with the offer, issuance, sale or delivery of the Notes in accordance
with the terms hereof and of the Issuing and Paying Agency Agreement; (f) the
Company is neither an "investment company" nor a "company controlled by an
investment company" within the meaning of the Investment Company Act of 1940, as
amended; and (g) there are no actions, suits, proceedings, or investigations
pending or threatened against the Company or any of its officers, directors or
persons who controls the Company (within the meaning of Section 15 of the 1933
Act or Section 20 of the Securities Exchange Act of 1934, as amended) or to
which any property of the Company is subject, which could in any way materially
prevent or interfere with or materially and adversely affect the Company's
execution, delivery or performance of this Agreement, the Issuing and Paying
Agency Agreement or the Notes.
5. Offering Materials. (a) The Company understands that, in
connection with the sale of the Notes, certain materials relating to the Company
and its affiliates may be prepared (collectively referred to herein as the
"Offering Materials"), which are distributed to purchasers and prospective
purchasers of the Notes. To provide a basis for the preparation of the Offering
Materials and to assist the Dealer's normal credit review procedures, the
Company shall provide the Dealer with copies of (i) its most recent reports of
the Company on Forms 10-Q and 10-K filed with the Securities and Exchange
Commission ("SEC") and each report on Form 8-K filed by the Company with the
SEC, (ii) its most recent annual audited financial statements and each interim
financial statements or report prepared subsequent thereto, and (iii) its and
its affiliates' other publicly available recent reports, including any filings
or reports provided to their respective shareholders, any national securities
exchanges or any rating agency and any information generally supplied in writing
to security analysts. In addition, the Company will provide the Dealer with
such other information as the Dealer may reasonably request for the purpose of
its on-going credit review of the Company.
(b) The Dealer agrees to furnish all Offering Materials to the
Company for its written approval prior to the use thereof in offering the
Notes. No other written information, circulars or statements will be
distributed by the Dealer. If the Company has not indicated its written
approval and has not indicated in writing the reasons why such approval
cannot be given by the fourteenth calendar day after the Offering Materials
are sent to the Company, the Offering Materials shall be deemed approved by
the Company on such fourteenth day. Any such approval by the Company shall
be deemed to be a representation by it that the Offering Material so approved
does not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading. If, at any time
during the term of this Agreement, any event occurs or circumstances exist as
a result of which any then current Offering Material would include such an
untrue statement or omission, the Company will promptly notify the Dealer and
provide to the Dealer revised information that corrects such untrue statement
of omission.
6. Repetition of Representation and Warranties. Each sale of Notes by the
Company hereunder shall be deemed to be a representation and warranty by it
that: (a) the representations, warranties and covenants of the Company
contained in Sections 4, 5(b), 6(b) and 8(b) of this Agreement are true and
correct on and as of the date of such sale; and (b) there has been no material
adverse change in the financial condition or operations of the Company since the
date of the most recent Offering Materials which has not been disclosed to the
Dealer in writing.
7. Conditions Precedent to Dealer's Obligations. As conditions precedent
to any obligations of the Dealer hereunder, the Company shall furnish to the
Dealer the following documents, in form and substance satisfactory to the
Dealer: (a) a true and complete copy of the Issuing and Paying Agency
Agreement; (b)(i) a certified copy of resolutions, substantially in the form of
Exhibit A, duly adopted by the Board of Directors of the Company and (ii) a
certificate substantially in the form of Exhibit B; and the acceptance by the
Company of proceeds from each sale of Notes hereunder shall be deemed to
constitute a representation and warranty by the Company that such certificates
are accurate and complete and that such resolutions are in full force and
effect, in each case, as of the date of such acceptance of proceeds; and (c) an
opinion of counsel to the Company, substantially in the form of Exhibit C.
8. Covenants of the Company. The Company covenants and agrees that:
(a) For the benefit of the Dealer and the holders from time to time of the
Notes, the Company will not permit to become effective any amendment,
supplement, rider, waiver or consent to or under any Note, the Issuing and
Paying Agency Agreement or any document prepared in connection with any thereof
which might adversely affect the interests of the holder of any Note then
outstanding. The Company will give the Dealer written notice of any such
proposed amendment, supplement, rider, waiver or consent at least ten days prior
to the effective date thereof. (b) The Company agrees to furnish prior notice
to the Dealer of any proposed resignation, termination or replacement of the
Issuing and Paying Agent.
9. Indemnification. The Company will indemnify and hold harmless the
Dealer and any affiliate, director, officer, employee or agent of the Dealer and
any person or entity controlling the Dealer (each, an "Indemnified Party")
against any and all liabilities, losses, damages, claims, costs and expenses
(including, without limitation, reasonable fees and disbursements of counsel)
(a) arising out of or based upon any allegation that any Offering Material or
any information provided to the Dealer hereunder includes an untrue statement of
a material fact or omits to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, (b) arising out of the breach by the Company of any agreement or
representation or warranty made or deemed made pursuant to this Agreement, or
(c) arising out of or based upon the issuance of the Notes or the transactions
contemplated hereby.
The above indemnification shall not apply to the extent that the liability
arises from the inclusion by any Indemnified Party in any Offering Material that
has not been approved or deemed approved by the Company pursuant to Section 5 of
this Agreement, of any untrue statement of a material fact or an omission to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. In order to
provide for just and equitable contribution in circumstances in which the
indemnification provided for in this Section is for any reason held
unenforceable, although applicable in accordance with the terms of this Section,
the Company, on the one hand, and the Dealer, on the other hand, shall
contribute to the aggregate costs of any such claim in the proportion of their
respective economic interests. The respective economic interests shall be
calculated by reference to the aggregate proceeds to the Company of the Notes
sold hereunder and the aggregate commissions and fees earned by the Dealer.
10. Compensation. The Dealer shall be entitled to compensation in
the amounts mutually agreed upon (orally or in writing) between the Company and
the Dealer from time to time.
11. Notices. All notices required or permitted under the terms and
provisions hereof shall be in writing (which shall include facsimile
transmission) and shall, unless otherwise provided herein, be effective when
received at the address specified below or at such other address as shall be
specified in a notice furnished hereunder.
If to the Company:
Mercury Finance Company
00 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Legal Department
Tel. No.: (000) 000-0000
Telex No.: _____________________
Facsimile No.: (000) 000-0000
If to the Dealer:
BA Securities, Inc.
Money Markets
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Manager
Tel. No.: (000) 000-0000
Facsimile No.: (000) 000-0000
12. Miscellaneous. This Agreement is to be delivered and performed,
and shall be construed and enforced in accordance with, and the rights of the
parties shall be governed by, the internal laws of the State of Illinois.
(a) The Company agrees that any suit, action or proceeding
brought by the Company against the Dealer in connection with or
arising out of this Agreement or the offer and sale of Notes shall be
brought solely in federal or state court, located in the City of
Chicago, State of Illinois.
(b) This Agreement may be terminated, at any time, by the Company,
upon notice to such effect to the Dealer, or by the Dealer, upon notice to
such effect to the Company. Any such termination, however, shall not
affect the obligations of the Company under Sections 9 and 10 hereof or the
rights or responsibilities of the parties arising prior to the termination
of this Agreement.
(c) This Agreement may not be assigned by the Company without the
prior consent of the Dealer and any such assignment without such consent
shall be null and void. This Agreement may be assigned or transferred by
the Dealer to any affiliate of the Dealer upon at least 30 days prior
written notice to the Company.
(d) This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same instrument and
any party hereto may execute this Agreement by signing one or more
counterparts.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
BA Securities, Inc.
By:
Title:
Mercury Finance Company
By:
Title: Vice President and Treasurer
EXHIBIT A
Mercury Finance Company
Certificate as to Resolutions
I, Xxxxx X. Xxxxx, Secretary of Mercury Finance Company, a Delaware corporation
(the "Company"), DO HEREBY CERTIFY, in connection with the issuance and sale of
short-term promissory notes under the Dealer Agreement, dated as of October 24,
1994 between the Company and BA Securities, Inc., as dealer (the "Dealer
Agreement;" the terms defined therein being used herein as therein defined),
that:
1. The resolutions attached hereto were duly adopted by the Board of
Directors of the Company (by unanimous written consent dated October 22, 1993)
(at a meeting thereof duly called and held on October 24, 1994, at which meeting
a quorum was present and acting throughout):
Such resolution has not been amended, modified or revoked and is in
full force and effect on the date hereof.
2. The Dealer Agreement, as executed and delivered on behalf of the
Company, is substantially on the form thereof approved by the Board of Directors
and referred to in the resolutions set out in paragraph 1 hereof.
IN WITNESS WHEREOF, I have signed this certificate this 24th day of
October, 1994.
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Secretary
EXHIBIT B
Mercury Finance Company
Incumbency and Signature Certificate
I, Xxxxx X. Xxxxx, Secretary of Mercury Finance Company, a Delaware corporation
(the "Company"), DO HEREBY CERTIFY, in connection with the issuance and sale of
short-term promissory notes under the Dealer Agreement, dated as of October 24,
1994 between the Company and BA Securities, Inc., as dealer (the "Dealer
Agreement;" the terms defined therein being used herein as therein defined),
that: (i) the below named persons have been duly elected (or appointed) and
have duly qualified as, and on this day are, officers of the Company holding
their respective offices set opposite their names; (ii) each such officer is
duly authorized to act on behalf of the Company in connection with the
authorization of, and the transmission of information and other communications
with the Dealer concerning, the sale from time to time by the Dealer of Notes on
behalf of the Company; and (iii) the signature set opposite the name of each
such officer is the genuine signature of such officer:
Xxxx X. Xxxxxxx President and Chief
Executive Officer /s/ Xxxx X. Xxxxxxx
Xxxxx X. Xxxxx Senior Vice President, /s/ Xxxxx X. Xxxxx
Controller, and Secretary
Xxxxxxx X. Xxxx Vice President, Treasurer, /s/ Xxxxxxx X. Xxxx
and Chief Financial Officer
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Secretary
I, Xxxx X. Xxxxxx, General Counsel of the Company, DO HEREBY CERTIFY
that Xxxxx X. Xxxxx (Secretary) has been duly elected (or appointed) and has
duly qualified as, and on this day is, Secretary of the Company, and the
signature above is his genuine signature.
IN WITNESS WHEREOF, I have signed this certificate this 24th day of
October, 1994.
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
General Counsel
Mercury Finance Company
EXHIBIT C
Opinion of Counsel to the Company
October 24, 1994
Gentlemen:
I have acted as counsel to Mercury Finance Company, a Delaware
corporation (the "Company"), in connection with the proposed offering and sale
by the Company in the United States of commercial paper in the form of short-
term promissory notes (the "Notes").
In my capacity as such counsel, I have examined a special form of
Note, an executed copy of the Dealer Agreement, dated as of October 24, 1994
(the "Dealer Agreement"), between the Company and BA Securities, Inc. as dealer
(the "Dealer"), and the Issuing and Paying Agency Agreement dated August 1, 1990
(the "Issuing and Paying Agency Agreement") as well as originals, or copies
certified or otherwise identified to our satisfaction, of such other records and
documents as I have deemed necessary as a basis for the opinions expressed
below. In such examination, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me as originals, and the
conformity to the originals of all documents submitted to me as copies.
In rendering the opinions expressed below, I have assumed that the
Notes will be offered and sold in accordance with the terms and conditions set
forth in the Dealer Agreement.
Based upon the foregoing and having regard for such legal
considerations as I have deemed relevant, it is my opinion that:
1. The Company is a corporation duly organized, validly existing and
in good standing under the laws of Delaware.
2. The execution, delivery and performance by the Company of the
Dealer Agreement, and the Issuing and Paying Agency Agreement and the execution,
issuance and performance by the Company of Notes issued under the Dealer
Agreement and the Issuing and Paying Agency Agreement, (i) have been duly
authorized by all necessary corporate action and (ii) do not contravene the
charter or by-laws of the Company or any law or contractual restriction binding
on or affecting the Company.
3. The Dealer Agreement and the Issuing and Paying Agency Agreement
have been duly executed and delivered by the Company, and each of the Issuing
and Paying Agency Agreement and the Dealer Agreement constitutes, and the Notes
(when duly executed and issued pursuant to the Issuing and Paying Agency
Agreement) against delivery and payment of the purchase price, will constitute
legal, valid and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally.
4. No consent or action of, or filing or registration with, any
government or public regulatory body or authority is required to authorize, or
is otherwise required in connection with, the execution, delivery or performance
of the Dealer Agreement, the Issuing and Paying Agency Agreement or the Notes
except such as have already been obtained.
5. Neither the execution and delivery by the Company of the Dealer
Agreement, the Issuing and Paying Agency Agreement or the Notes, nor the
fulfillment of or compliance with the terms and provisions hereof or thereof by
the Company, will (i) to the best of my knowledge result in the creation or
imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever
upon any of the properties or assets of the Company; (ii) violate any of the
terms of the Company's charter documents or by-laws; (iii) to the best of my
knowledge violate the terms of any order, writ, injunction or decree of any
court or governmental instrumentality, to which the Company is a party or by
which it or its property is bound; nor (iv) to the best of my knowledge violate
the terms of any mortgage, indenture, agreement or instrument to which the
Company is a party or by which it or its property is bound.
6. Each Note issued by the Company pursuant to the terms of the
Dealer Agreement and of the Issuing and Paying Agency Agreement is 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 under the 1933 Act nor qualification of an indenture under the Trust
Indenture Act of 1939, as amended, with respect to the Notes will be required in
connection with the offer, issuance, sale or delivery of the Notes in accordance
with the terms hereof and of the Issuing and Paying Agency Agreement. The
Company is not an "investment company" nor a "company controlled by an
investment company" within the meaning of the Investment Company Act of 1940, as
amended.
7. There are no actions, suits, proceedings, or investigations
pending or threatened against the Company which could in any way materially
prevent or interfere with or materially and adversely affect the Company's
execution, delivery or performance of the Dealer Agreement, the Issuing and
Paying Agency Agreement or the Notes.
This opinion may be delivered to the Issuing and Paying Agent and any
nationally rating service (in connection with the rating of the Notes), each of
which may rely on this opinion to the same extent as if such opinion were
addressed to it.
Very truly yours,
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
General Counsel
MERCURY FINANCE COMPANY
EXECUTIVE COMMITTEE OF THE
BOARD OF DIRECTORS
RESOLUTIONS 93-4
FURTHER RESOLVED, that the President or the Treasurer or the Secretary
of this Corporation be and any one of them are hereby authorized and empowered,
for and on behalf of the Corporation, to discount, sell or negotiate with
Chicago Corporation or Continental Bank NA or Xxxxxx Xxxxxxx or such other
entity or entities as they shall determine, drafts, loans, notes, or other bills
receivable and to borrow money from Chicago Corporation or Continental Bank NA
or Xxxxxx Peabody or such other entity or entities as they shall determine from
time to time for the purpose of current transactions or the proceeds of which
have been or will be used for the current transactions, and to execute notes,
papers and other obligations thereof in negotiable form having maturities at the
time of issuance not exceeding nine (9) months, and in an aggregate principal
amount not to exceed $500 million, and upon such other terms and conditions so
as to qualify such instruments as "commercial paper" within the meaning of
Section 3(a)3 of the Securities Act of 1933 as amended, and at such rate of
interest, as may be agreed upon by said Chicago Corporation or Continental Bank
NA or Xxxxxx Xxxxxxx or such other entity or entities duly appointed and
authorized and said officer or officers of the Corporation.
FURTHER RESOLVED, that the proper officers of this Corporation are
authorized to do and perform all such other acts and things, and to execute and
deliver such other documents, as may be necessary or appropriate in connection
with the above approved issuance and sale of the unsecured short term promissory
notes.
RESOLVED, that the President or the Treasurer or the Secretary of this
Corporation, be and any one of them is hereby authorized, for and on behalf of
this Corporation, to apply to banks for their commitments under Revolving Credit
Agreements (the "Agreements"); which Agreements shall provide that each Bank
agrees to make a loan to the Corporation from time to time on a revolving basis
in the amount of each Bank's commitment up to $500,000,000 aggregate principal
amount at any time outstanding, together with such changes, omissions or
additions as the officer executing the same may approve, such approval to be
conclusively evidenced by his execution thereof.
FURTHER RESOLVED, that the President or the Treasurer or the Secretary
to be and any one of them is hereby authorized and directed to execute and
deliver from time to time Revolving Credit Notes of this Corporation, in
accordance with such above approved Agreements, such Notes to be substantially
in the form of the Notes attached as schedules to those Agreement, together with
such changes, omissions or additions as the officers executing the same may
approve, such approval to be conclusively evidenced by their execution thereof.
FURTHER RESOLVED, that the proper officers of this Corporation are
hereby to do and perform all such other acts and things, and to execute and
deliver such other documents, as may be necessary or appropriate in connection
with such approved Agreements or approved Notes, or otherwise in the premises.
