Issuing and Paying Agent Agreement
Security Pacific National
Trust Company (New York)
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Division
Re: Mercury Finance Company
Commercial Paper Program
Gentlemen and Ladies:
This letter will set forth the understandings made among you and the
undersigned, Mercury Finance Company, a Delaware corporation ("Mercury
Finance"), whereby you have agreed to act as depositary for the safekeeping of
certain notes of Mercury Finance, which may be issued and sold in the commercial
paper market ("Commercial Paper Notes"), as issuing agent on behalf of Mercury
Finance in connection with the issuance of the Commercial Paper Notes and as
paying agent to undertake certain obligations as described below on behalf of
the holders of the Commercial Paper Notes.
1. Appointment of Agent. Mercury Finance hereby requests that you act, on
the terms and conditions specified herein, as Issuing and Paying Agent for the
Commercial Paper Notes which Mercury Finance shall from time to time deliver or
cause to be delivered to you. The Commercial Paper Notes will be substantially
in the form attached hereto as Exhibit A and will be placed through the Chicago
Corp and Continental Bank, (the "Dealers"). If the Commercial Paper Notes will
bear interest, Exhibit A will be modified accordingly. At no time will the
aggregate amount of such Notes outstanding exceed $300,000,000.00.
2. Supply of Commercial Paper Notes. Mercury Finance will from time to
time furnish you with an adequate supply of Commercial Paper Notes, which will
be serially numbered and will have been executed by manual or facsimile
signature of an Authorized Representative (as hereafter defined), with the
principal amount, payee, date of issue, maturity date, amount of interest (if an
interest-bearing Commercial Paper Note) and maturity value left blank. Pending
receipt of instructions pursuant to this Agreement, you will hold the Commercial
Paper Notes in safekeeping for the account of Mercury Finance in accordance with
your customary practice. The Commercial Paper Notes shall be printed on a
manifold that will produce one original and three non-negotiable copies.
3. Authorized Mercury Finance Representatives. From time to time Mercury
Finance will furnish you with a certificate certifying the incumbency and
specimen signatures of officers or agents of Mercury Finance authorized to
execute Commercial Paper Notes on behalf of Mercury Finance by manual or
facsimile signature and/or to take other action hereunder on behalf of Mercury
Finance (each an "Authorized Mercury Finance Representative"). Until you
receive a subsequent incumbency certificate (of Mercury Finance), you are
entitled to rely on the last such certificate delivered to you for purposes of
determining the Authorized Mercury Finance Representatives. You shall not have
any responsibility to Mercury Finance to determine by whom or by what means a
facsimile signature may have been affixed on the Commercial Paper Notes, or to
determine whether any facsimile or manual signature resembles the specimen
signature(s) filed with you by a duly authorized officer of Mercury Finance.
Any Commercial Paper Note bearing the manual or facsimile signature of a person
who is an Authorized Mercury Finance Representative on the date such signature
is affixed shall bind Mercury Finance after the completion thereof by you
notwithstanding that such person shall have died or shall have otherwise ceased
to hold his or her office on the date such Commercial Paper Note is
countersigned or delivered to you.
4. Completion, Authentication and Delivery of Commercial Paper Notes. (a)
Instructions for the issuance of Commercial Paper Notes will be given via a
timesharing terminal, if available, or by telephone, promptly confirmed in
writing (facsimile) either by an Authorized Mercury Finance Representative, or
by any officer or employee of the Dealers ("Chicago Corp, Continental Bank") who
has been designated by an Authorized Mercury Finance Representative in writing
to you as a person authorized to give such instructions hereunder, provided that
instructions may be given by telephone (or by facsimile) or in writing if the
system is unavailable or is inoperative. Upon receipt of instructions as
described in the preceding sentence, you will withdraw the necessary Commercial
Paper Note(s) from safekeeping and, in accordance with such instructions, shall:
(1) complete each Commercial Paper Note as to principal amount (which
shall not be less than $100,000.00), payee, date of issue, maturity date, (which
shall not be more than 270 days from the date of issue), amount of interest (if
any) and maturity value; and
(2) manually countersign each commercial Paper Note by any one of your
officers or employees duly authorized and designated for this purpose; and
(3) deliver the Commercial Paper Note(s) to the Dealer or its agent within
(Financial District, south of Xxxxxxxx Street, in) the Borough of Manhattan,
City and State of New York, which delivery shall be against receipt for payment
as herein provided or as otherwise provided in such instructions. (If such
instructions do not provide for such receipt, the Dealer shall nevertheless pay
the purchase price for the Commercial Paper Note(s) in accordance with Paragraph
5). Of the three non-negotiable copies of each Commercial Paper Note, two shall
be retained by you and one shall be sent promptly to Mercury Finance.
(b) Instructions given via the time-sharing terminal must be entered by
12:30 p.m. New York time, and instructions delivered by telephone or in writing
must be received by you by 12:30 p.m. New York time, if the Commercial Paper
Note(s) are to be delivered the same day. Telephone instructions shall be
confirmed in writing the same day.
(c) Mercury Finance understands that although you have been instructed to
deliver Commercial Paper Notes against payment, delivery of Commercial Paper
Notes will, in accordance with the custom prevailing in the commercial paper
market, be made before receipt of payment in immediately available funds.
Therefore, once you have delivered a Commercial Paper Note to the Dealer(s) or
its agent as provided in Paragraph 4(a)(3), Mercury Finance shall bear the risk
that the Dealer(s) or its agent fails to remit payment for the Commercial Paper
Note to you. It is understood that each delivery of Commercial Paper Notes
hereunder shall be subject to the rules of the New York Clearing House in effect
at the time of such delivery.
5. Proceeds of Sale of the Commercial Paper Notes. Contem-poraneously
with the execution and delivery of this Agreement, and for the purposes of this
Agreement, you will establish an account designated the Mercury Finance Note
Account. On each day on which the Dealer(s) or its agent takes delivery of
Commercial Paper Notes, it shall pay the purchase price for such Commercial
Paper Notes in immediately available funds for credit to the Note Account. From
time to time upon telephonic or written instructions received by you from an
Authorized Mercury Finance Representative, you agree to transfer immediately
available funds from the Note Account to any bank or trust company for our
account.
6. Payment of Matured Commercial Paper Notes. By 1:00 P.M. New York time
on the date that any Commercial Paper Notes are scheduled to mature, there shall
have been transferred to you for deposit in the Note Account immediately
available funds at least equal to the amount of Commercial Paper Notes maturing
on such date. When any matured Commercial Paper Note is presented to you for
payment by the holder thereof, payment shall be made from and charged to the
Note Account to the extent funds sufficient to effect such payment are available
in said account.
7. Reliance on Instructions. You shall incur no liability to Mercury
Finance in acting hereunder upon telephonic or other instructions contemplated
hereby which the recipient thereof believed in good faith to have been given by
an Authorized Mercury Finance Representative or Dealer(s), as the case may be.
In the event a discrepancy exists between the telephonic instructions and the
written confirmation, the telephonic instructions as recorded and understood by
you will be deemed the controlling and proper instructions. It is understood
that all telephonic instructions will be recorded by you and Mercury Finance
hereby consents to such recording.
8. Cancellation of Commercial Paper Notes. You will in due course cancel
Commercial Paper Notes presented for payment and return them to Mercury
Finance. Promptly upon the written request of Mercury Finance, you agree to
cancel and return to Mercury Finance all unissued Commercial Paper Notes in
your possession at the time of such request.
9. Representations and Warranties of Mercury Finance. Each instruction
given to you in accordance with Paragraph 4 shall constitute a representation
and warranty to you by Mercury Finance that the representations and warranties
set out in Exhibit B hereto are true and correct on the date of the instruction
as if made on such date.
10. Notice; Addresses. (a) All communications by or on behalf of Mercury
Finance or the Dealer(s), by telephone or otherwise, relating to the completion,
delivery or payment of the Commercial Paper Notes are to be directed to your
Commercial Paper Issuance Unit of the Corporate Trust Division (or such other
department or division which you shall specify in writing to Mercury Finance or
the Dealer(s)). Mercury Finance will send all Commercial Paper Notes to be
completed and delivered by you to your Commercial Paper Issuance Unit of the
Corporate Trust Division (or such other department or division as you shall
specify in writing to Mercury Finance). You will advise Mercury Finance or the
Dealer(s) from time to time of the individuals generally responsible for the
administration of this Agreement and will from time to time certify incumbency
and specimen signatures of officers or employees authorized to countersign
Commercial Paper Notes and will supply a list of employees authorized to receive
telephone instructions.
(b) Notices and other communications hereunder shall (except to the extent
otherwise expressly provided) be in writing and shall be addressed as follows,
or to such other address as the party receiving such notice shall have
previously specified to the party sending such notice:
if to Mercury Finance, at:
(a) concerning the daily issuance of Commercial Paper Notes:
Mercury Finance Company
00 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxxx Xxxx
Vice President, Treasurer
Chief Financial Officer
Telephone No.: 000-000-0000
if to you at:
(a) concerning the daily issuance of
Commercial Paper Notes:
Security Pacific National Trust
Company (New York)
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Corporate Trust Division
Attn: Xxxxxx Xxxxxx, Mgr.
Telephone No.: 212/000-0000
Telecopy No.: 212/978-2617
(b) concerning all other matters;
Security Pacific National Trust
Company (New York)
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx, A.V.P.
Telephone No.: 212/000-0000
Telecopy No.: 212/978-5060
Notices shall be deemed delivered when received at the address specified above.
For purposes of this paragraph, "when received" shall mean actual receipt (i) of
an electronic communication by a telex machine, telecopier or time-sharing
terminal specified in or pursuant to this Agreement; (ii) of an oral
communication by any person answering the telephone at your office specified in
subparagraph 10(a) hereof and otherwise at the office of the individual or
department specified in or pursuant to this Agreement; or (iii) of a written
communication hand-delivered at the office specified in or pursuant to this
Agreement.
11. Additional Information. Upon the reasonable request of Mercury
Finance given at any time and from time to time, you shall promptly provide
Mercury Finance with information with respect to the Commercial Paper Notes
issued and paid hereunder. You shall also prepare and promptly deliver to
Mercury Finance advices with respect to the Commercial Paper Notes
authenticated, issued and delivered by you in accordance with this Agreement.
The information set forth in such advices shall include the date of issue,
serial number, face amount, amount of discount from the face amount, or
principal amount and rate of interest, and maturity date of each such Commercial
Paper Note. You and Mercury Finance shall discuss from time to time the extent
to which such information is reasonably available and the times at which you can
reasonably furnish such information.
12. Liability. Neither you nor your officers, employees or agents shall
be liable for any act or omission hereunder, except in the case of gross
negligence or willful misconduct. Your duties and obligations and those of your
officers and employees shall be determined by the express provisions of this
Agreement, and they shall not be liable except for the performance of such
duties and obligations as are specifically set forth herein, and no implied
covenants shall be read into this Agreement against them. Neither you nor your
officers or employees shall be required to ascertain whether any issuance or
sale of Commercial Paper Notes (or any amendment or termination of this
Agreement) has been duly authorized or is in compliance with any other agreement
to which Mercury Finance is a party (whether or not you are a party to such
other agreement).
13. Indemnification. Mercury Finance agrees to indemnify and hold you and
your officers, employees and agents harmless from and against all liabilities,
claims, damages, costs and expenses (including legal fees and expenses) relating
to or arising out of their actions or inactions in connection with this
Agreement, except to the extent they are caused by your gross negligence or
willful misconduct. This indemnity shall survive termination of this Agreement.
14. Benefit of Agreement. This Agreement is solely for the benefit of the
parties hereto, and no other person shall acquire or have any right under or by
virtue hereof.
15. Termination. This Agreement may be terminated at any time by either
you or by Mercury Finance 30 days prior written notice by Mercury Finance and 90
days written notice by Security Pacific, but such termination shall not affect
the respective liabilities of the parties hereunder arising prior to such
termination.
16. Governing Law. This Agreement is to be delivered and performed in,
and shall be construed and enforced in accordance with, and the rights of the
parties shall be governed by, the law of the State of New York.
17. Fees. You shall receive fees from Mercury Finance for acting as
depositary, issuing and paying agent hereunder in such amounts as you and
Mercury Finance shall agree from time to time in writing in accordance with
Exhibit C.
Please indicate your agreement with and acceptance of the foregoing terms
and provisions by signing the counterpart of this letter enclosed herewith and
returning it to Mercury Finance.
(Mercury Finance Company)
By
Its
Agreed to and accepted this 1st of day of August, 1990.
SECURITY PACIFIC NATIONAL
TRUST COMPANY (NEW YORK)
as Issuing and Paying Agent
By
Its
Exhibit B
Mercury Finance, a Delaware corporation hereby represents and
warrants to you that:
1. Due Incorporation. Mercury Finance has been duly incorporated and
is validly existing in good standing as a corporation under laws of the United
States and has all requisite corporate power and authority under its certificate
of incorporation and the laws of The State of Delaware to conduct its business
as proposed to be conducted.
2. Authorization of Agreements; No Conflict. The execution, delivery and
performance by Mercury Finance of the Issuing and Paying Agency Agreement (the
"Agreement"), the appointment of you to act for the Issuer under the Agreement
and the issuance and delivery of the Commercial Paper Notes (as defined in the
Agreement) are within Mercury Finance's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene (i) the
certificate of incorporation or bylaws or (ii) any statute, order, rule,
regulation, judgment or contractual restriction binding on or purporting to bind
or affect.
3. No Governmental Consent Required. No authorization or approval or
other action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and performance by
Mercury Finance of the Agreement or for the issuance and delivery of the
Commercial Paper Notes by or the consummation of other transactions by Mercury
Finance contemplated by the Agreement.
4. Valid and Binding. The Agreement is, and, when executed,
authenticated, delivered and paid for as required by the Agreement, the
Commercial Paper Notes will be, legal, valid and binding obligations of Mercury
Finance enforceable against Mercury Finance accordance with its or their terms,
except that (a) such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, (b) such enforceability may be
limited by general principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing (regardless of
whether such enforceability is considered in a proceeding in equity or at law),
and (c) rights to indemnity hereunder may be limited by applicable federal or
state securities laws.
