EXHIBIT 99.4
THIRD AMENDMENT
TO LOAN AND SECURITY AGREEMENT
Dated as of July 9, 1997
THIS THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT dated as of
July 9, 1997 amends the Loan and Security Agreement dated as of February 7, 1997
(as previously amended, the "Loan Agreement") among certain financial
institutions, BANKAMERICA BUSINESS CREDIT, INC., as Agent (the "Agent"), MERCURY
FINANCE COMPANY and certain other borrowers. Terms defined in the Loan
Agreement are, unless otherwise defined herein or the context otherwise
requires, used herein as defined therein.
WHEREAS, the Borrowers, the Agent and the Lenders have entered into
the Loan Agreement which provides for the Lenders to make Loans to the Borrowers
from time to time; and
WHEREAS, the parties hereto desire to amend the Loan Agreement in
certain respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1 AMENDMENTS. Effective on (and subject to the occurrence
of) the Third Amendment Effective Date (as defined below), the Loan Agreement
shall be amended in accordance with Sections 1.1 through 1.7 below:
SECTION 1.1 Stated Termination Date. The definition of "Stated
Termination Date" in Section 1.1 of the Loan Agreement is hereby amended to
state in its entirety as follows:
"Stated Termination Date" means January 6, 1998, as such date may be
extended pursuant to Section 4.2(b)."
SECTION 1.2 Third Amendment Effective Date. Section 1.1 of the Loan
Agreement is hereby amended by adding the following new definition which will be
added to Section 1 in appropriate alphabetical order:
"Third Amendment Effective Date" means the date on which the
Third Amendment dated as of July 9, 1997 to this Agreement becomes
effective.
SECTION 1.3 Section 4.2(b). Section 4.2(b) of the Loan Agreement is
hereby amended in its entirety to read as follows:
(b) [Intentionally omitted.]
SECTION 1.4 Section 8.3. Section 8.3 of the Loan Agreement is hereby
amended in its entirety to read as follows:
8.3 Organization and Qualification. Except as set forth on
Schedule 8.3 hereto, each Borrower (a) is duly incorporated and
organized and validly existing in good standing under the laws of the
state of its incorporation, (b) is qualified to do business as a
foreign corporation and is in good standing in each jurisdiction in
which qualification is necessary in order for it to own or lease its
property and conduct its business and (c) has all requisite power and
authority to conduct its business and to own its property.
SECTION 1.5 Section 10. Section 10 of the Loan Agreement is hereby
amended by adding a new Section 10.3 immediately following Section 10.2 thereof
to read as follows:
10.3 Conditions Precedent to Initial Loan After Third Amendment
Effective Date. The obligation of the Lenders to make the initial
Loans following the Third Amendment Effective Date shall be subject to
the further conditions precedent that the Agent shall have received
waivers and consents in the form of Exhibit A hereto from all
creditors necessary, in accordance with the terms of the applicable
agreements, to prevent such extension of credit from conflicting with
other agreements, together with a certificate signed by a Responsible
Officer of MFC listing all of such waivers and consents and certifying
that all of such waivers and consents have been obtained.
SECTION 1.6 Schedule 8.3. The Loan Agreement is amended by adding a
new Schedule 8.3 in the form of Schedule 8.3 attached hereto.
SECTION 1.7 Schedule 8.5. The Loan Agreement is amended by deleting
Schedule 8.5 thereto and substituting therefor Schedule 8.5 attached hereto.
SECTION 2 REPRESENTATIONS AND WARRANTIES. Each Borrower represents
and warrants to the Agent and the Lenders that (a) each warranty set forth in
Section 8 of the Loan Agreement as amended by this Third Amendment (as so
amended, the "Amended Loan Agreement") is, or upon the effectiveness hereof will
be, true and correct in all material respects on and as of the Third Amendment
Effective Date as though made on and as of such date, other than any such
representation or warranty which relates to a specified prior date and no event
has occurred or is continuing, or would result from the execution and delivery
of this Third Amendment, which constitutes a Default or an Event of Default, (b)
the execution and delivery by the Borrowers of this Third Amendment and the
performance by the Borrowers of their respective obligations under the Amended
Loan Agreement (i) are within the corporate powers of the Borrowers, (ii) have
been duly authorized by all necessary corporate action, (iii) have received all
necessary approvals, or authorization of, or declaration or filing with, any
Governmental Authority, (iv) do not require any consent of any other Person
(other than the waivers and consents required to be delivered pursuant to
Section 10.3 of the Amended Loan Agreement), and (v) do not and will not
contravene or conflict with any provision of law or of the articles of
incorporation or by-laws of any Borrower or of any indenture, loan agreement or
other contract, order or decree which is binding upon any Borrower, and (c) the
Amended Loan Agreement is the legal, valid and binding obligation of the
Borrowers, enforceable against the Borrowers in accordance with its terms.
SECTION 3 EFFECTIVENESS. The amendments set forth in Section 1 above
shall become effective, as of the day and year first above written, on such date
(herein called the "Third Amendment Effective Date") when the Agent shall have
received (i) for the account of the Lenders, a facility fee in the amount of
$400,000, and (ii) counterparts of this Third Amendment executed by all of the
parties hereto.
SECTION 4 MISCELLANEOUS.
4.1 Waiver. This agreement shall be limited to its terms and shall
not constitute a waiver of any other rights that the Agent and the Lenders may
have from time to time.
4.2 Continuing Effectiveness, etc. As herein amended, the Loan
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the Third Amendment Effective Date, all
references in the Loan Agreement to "Loan Agreement", "Agreement" or similar
terms shall refer to the Amended Loan Agreement.
4.3 Counterparts. This Third Amendment may be executed in any number
of counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Third Amendment.
4.4 Governing Law. This Third Amendment shall be a contract made
under and governed by the internal laws of the State of Illinois.
4.5 Successors and Assigns. This Third Amendment shall be binding
upon the Borrowers, the Lenders and the Agent and their respective successors
and assigns, and shall inure to the benefit of the Borrowers, the Lenders and
the Agent and the respective successors and assigns of the Agent and the
Lenders.
Delivered at Chicago, Illinois, as of the day and year first above
written.
MERCURY FINANCE COMPANY
By
Name:
Title:
MERCURY FINANCE CORPORATION OF ALABAMA
MERCURY FINANCE COMPANY OF ARIZONA
MERC FINANCE COMPANY OF CALIFORNIA
MERCURY FINANCE COMPANY OF COLORADO
MERCURY FINANCE COMPANY OF DELAWARE
MERCURY FINANCE COMPANY OF FLORIDA
MERCURY FINANCE COMPANY OF GEORGIA
MERCURY FINANCE COMPANY OF IDAHO
MERCURY FINANCE COMPANY OF ILLINOIS
MERCURY FINANCE COMPANY OF INDIANA
MERCURY FINANCE COMPANY OF IOWA
MERCURY FINANCE COMPANY OF KANSAS
MERCURY FINANCE COMPANY OF KENTUCKY
MERCURY FINANCE COMPANY OF LOUISIANA
MERCURY FINANCE COMPANY OF MICHIGAN
MERCURY FINANCE COMPANY OF MISSISSIPPI
MERCURY FINANCE COMPANY OF MISSOURI
MERCURY FINANCE COMPANY OF NEVADA
MERCURY FINANCE COMPANY OF NEW MEXICO
MERCURY FINANCE COMPANY OF NEW YORK
MERCURY FINANCE COMPANY OF NORTH CAROLINA
MERCURY FINANCE COMPANY OF OHIO
MFC FINANCE COMPANY OF OKLAHOMA
MERCURY FINANCE COMPANY OF OREGON
MERCURY FINANCE COMPANY OF PENNSYLVANIA
MERCURY FINANCE COMPANY OF SOUTH CAROLINA
MERCURY FINANCE COMPANY OF TENNESSEE
MFC FINANCE COMPANY OF TEXAS
MERCURY FINANCE COMPANY OF UTAH
MERCURY FINANCE COMPANY OF VIRGINIA
MERCURY FINANCE COMPANY OF WASHINGTON
MERCURY FINANCE COMPANY OF WISCONSIN
FILCO MARKETING COMPANY
MFC FINANCIAL SERVICES, INC.
GULFCO FINANCE COMPANY
GULFCO INVESTMENT, INC.
MIDLAND FINANCE CO.
By
Name:
Title:
BANKAMERICA BUSINESS CREDIT,
INC., as Lender and as the Agent
By
Name:
Vice President
