EXHIBIT 99.4
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 the lender whose name appears on the signature pages hereof
(the "Lender").
W I T N E S S E T H:
WHEREAS, the Lender or its predecessor in interest is a party to or beneficiary
of one or more credit agreements, note agreements or other agreements,
instruments or other documents with or executed by Mercury including those
listed on Schedule 1 hereto pursuant to which Lender has extended credit to
Mercury (collectively, the "Existing Agreements");
WHEREAS, Mercury is in default under various provisions of the Existing
Agreements;
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 desired 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 the 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 Existing Agreements unless waived prohibit
the Borrowers from granting liens on their assets to secure indebtedness for
borrowed money and/or require that the Lender 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 Lender to
waive such provisions of the Existing Agreements to permit the Borrowers to
obtain the emergency financing they needed through March 10, 1997, and the
Lender or its assignor 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 Lender to waive
such provisions of the Existing Agreements to permit the Borrowers to obtain the
financing they needed to continue their operations through June 10, 1997, and
the Lender or its assignor granted such a waiver pursuant to a Second 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 Lender to
waive such provisions of the Existing Agreements to permit the Borrowers to
obtain the financing they need to continue their operations, and the Lender or
its assignor granted such waiver only to September 30, 1997 pursuant to a Third
Limited Waiver Agreement dated July 11, 1997;
WHEREAS, the Lender is now willing to waive certain limited provisions of the
Existing Agreements through January 6, 1998 to permit BABC to fund the Bridge
Loan upon request of Mercury;
WHEREAS, the Lender and certain other holders of Funded Debt (as defined below)
have entered into Forbearance Agreements dated July 11, 1997 and are executing
a First Amendment to Forbearance Agreement of even date herewith (collectively,
the "Amendment to 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, the Lender desires to waive certain limited provisions of the Existing
Agreements 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 Lender agree as follows:
1. Treatment of Existing Indebtedness. Mercury has represented to the Lender
that neither it nor its subsidiaries intend to repay, retire, make a
distribution to or on account of, or make an interest payment on account of, any
existing indebtedness for borrowed money, other than the Bridge Loan, including,
but not limited to, indebtedness on account of commercial paper, note
agreements, loan agreements, subordinated debt agreements or any of the
indebtedness listed on Schedule 2 hereto (collectively, "Funded Debt"), except
as contemplated in the Amendment to Forbearance Agreements or any agreements
attached thereto, unless the Lender receives in connection with such payment or
distribution, and subject to applicable subordination agreements, its pro rata
portion of such payment or distribution on account of indebtedness owing to the
Lender under the Existing Agreements.
2. Waiver. Solely in connection with the Bridge Loan in accordance with the
terms and conditions of the Third Amendment, the Lender waives through 11:59(pm)
central standard time on January 6, 1998 compliance with any of the provisions
of the Existing Agreements 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 Lender 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 2 shall be effective
on the conditions that (i) the 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 including Funded Debt outstanding as of the date
hereof or hereafter. The Lender waives compliance with any provisions of the
Existing Agreements that (a) prohibit or restrict the creation or operation of
the Forbearance Escrow and/or the entering into of the Amendment to Forbearance
Agreement (b) result in or require the creation of an escrow, security interest,
lien or mortgage in favor of the Lender 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 Amendment to Forbearance Agreement.
3. Effect on Existing Agreements; Reservation of Rights. In the event of any
conflict between the terms hereof and the terms of any Existing Agreement or any
instruments, documents or agreements executed in connection therewith with
respect to the subject matter of this Agreement, the terms of this Agreement
shall govern and control. Each of the Existing Agreements and such other
related instruments, documents or agreements, and all obligations of Mercury and
all rights and remedies of the Lender thereunder or under applicable law shall
remain in full force and effect except to the extent expressly amended or waived
in accordance with the terms hereof or the Amendment to Forbearance Agreement
entered into between Mercury and the Lender. No defaults or events of default
existing as of the date hereof under the Existing Agreements are being waived.
The terms of this Agreement shall not be affected by the termination of the
Forbearance Period (as defined in the Amendment to Forbearance Agreement).
4. Representations. The Lender represents that it has not assigned or
transferred the indebtedness owing to it under the Existing Agreements or it has
assigned or transferred such indebtedness subject to this Agreement and is duly
authorized to enter into and perform this Agreement. Mercury represents to the
Lender that it is duly authorized to enter into and perform this Agreement.
Mercury further represents to the Lender that transactions contemplated by the
Third Amendment will not result in or require the creation of a security
interest, lien or mortgage in favor of any holder of commercial paper.
5. Entire Agreement. This Agreement constitutes the full and entire
understanding of the parties hereto with respect to the subject matter hereof.
6. Severability. Wherever possible, each provision of this Agreement shall be
interpreted in a manner as to be effective and valid under applicable law. If
any provision of this Agreement shall be held to be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity and the remaining provisions of this Agreement
shall remain unaffected and in full force and effect.
7. Governing Law. This Agreement shall be interpreted, and the rights and
liabilities of the parties hereto determined, in accordance with the internal
laws of the State of Illinois.
8. Successors and Assigns. This Agreement shall inure to the benefit of, and
be binding upon the successors and assigns of, each of the parties hereto.
9. Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one instrument.
* * * * *
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year
first above written.
MERCURY FINANCE COMPANY,
a Delaware corporation
By:
Name:
Title:
By:
Name:
Title:
Name of Lender:
EXHIBIT A
FOURTH AMENDMENT
SCHEDULE 2
See attached list of Funded Debt entitled "Mercury Finance Company Long Term
Debt & Swaps December 31, 1996" (to the extent not listed below).
Senior Note Agreement dated as of May 1, 1992, as amended - $17,500,000 8.15%
Senior Notes, due May 27, 1997.
Senior Note Agreement dated as of March 1, 1992, as amended - $15,000,000 7.67%
Senior Notes, due March 6, 1997.
Senior Note Agreement dated as of July 1, 1993, as amended - $24,000,000 6.29%
Senior Notes, due December 16, 1997.
Note Purchase Agreement dated as of March 1, 1993, as amended - $35,000,000
6.70% Senior Notes, due March 26, 1998.
Senior Note Agreement dated as of December 1, 1993, as amended - $76,000,000
6.16% Senior Notes, due December 15, 1998.
Senior Note Agreement dated as of June 29, 1995, as amended -
$25,000,000 7.16% Senior Notes, Series A, due June 29, 1998
$30,000,000 7.33% Senior Notes, Series B, due June 29, 1999
$58,000,000 7.42% Senior Notes, Series C, due June 29, 2000
$30,000,000 7.50% Senior Notes, Series D, due June 29, 2001 and
$17,000,000 7.59% Senior Notes, Series E, due June 29, 2002.
Senior Note Agreement dated as of April 5, 1996, as amended -
$31,000,000 6.76% Senior Notes, Series A, due April 5, 1999
$15,000,000 6.94% Senior Notes, Series B, due April 5, 2000
$10,000,000 7.02% Senior Notes, Series C, due April 5, 2001 and
$4,000,000 7.14% Senior Notes, Series D, due April 2, 2002.
Term Note dated March 22, 1996 in the principal amount of $20,000,000, payable
to The Industrial Bank of Japan, Limited.
Term Note dated December 15, 1994 in the principal amount of $20,000,000,
payable to The Long-Term Credit Bank of Japan, Ltd.
Bank of America Debt Agreements $50,000,000.
Loan Agreement dated as of October 30, 1991, as amended, in favor of Allomon
Funding Corporation, as assigned to Mellon Bank, N.A.
Term Note dated as of March 22, 1996 in the original principal amount of
$10,000,000.
Term Note dated as of December 15, 1994 in the original principal amount of
$10,000,000.
Subordinated Debt Agreement/Notes
Bank One Midland Debt
All Commercial Paper issued by the Company including the attached List of
Commercial Paper entitled "Mercury Finance Company - Schedule of Commercial
Paper."
Commercial Paper Master Note dated as of December 6, 1993.
Any and all Letters of Credit
