Mercury Finance Company
00 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
(000) 000-0000
March 23, 1994
NationsBanc Capital Markets, Inc.
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Gentlemen:
This letter agreement (the "Agreement") sets forth our understanding of the
basis on which NationsBanc Capital Markets, Inc. ("NCMI") proposes to work with
Mercury Finance Company ("Company"), in connection with the issuance and sale by
the Company of its short-term promissory notes, generally known as commercial
paper (the "Notes"). While (i) the Company shall have no obligation to sell the
Notes to, or to or arrange sales of Notes through, NCMI, and (ii) NCMI shall
have no obligation to purchase the Notes from, or arranges sales of Notes for,
the Company, the Company has requested NCMI to act as commercial paper dealer
therefor and NCMI has indicated its willingness to do so on the terms and
conditions contained herein.
The proceeds from the sale of the Notes will be used by the Company for current
transactions as contemplated by Section 3(a)(3) of the Securities Act of 1933,
as amended.
It is contemplated that the maximum amount of Notes to be outstanding at any one
time will not exceed Five hundred million dollars ($500,000,000). The Notes
will be in such principal amounts (but not less than $100,000 each or any
integral multiple of $1,000 in excess thereof), will have such maturities (not
in excess of 270 days from the date of issuance exclusive of days of grace),
will not contain any provision for automatic extension, renewal or "rollover",
and will bear such interest rates (if interest bearing), or will be sold at such
discounts, if any, from their principal amounts, as shall be mutually agreed to
by the Company and NCMI at the time of each purchase or placement.
On the date of a proposed issuance of any Notes, NCMI shall confer with the
Company as to the principal amounts, maturities and denominations thereof, the
interest rate thereon, if any, or the discount, if any, from the principal
amount, at which the Notes are to be purchased from the Company. When agreement
is reached on the foregoing, the Company will instruct Bank America National
Trust Co. or another issuing agency designated by the Company in a written
notice to NCMI, to deliver executed and countersigned Notes to Bankers Trust
Company ("Bankers Trust"), 00 Xxxx Xxxxxx, 0xx Xxxxx, Window 43, (a/c NCMI
Clearing, further credit a/c #90659, prior to 2:15 p.m. New York City time, on
the date of purchase, or to such other address as NCMI shall notify the
Company. If Notes are to be issued in book-entry form through Depository
Trust Company ("DTC"), deliveries shall be made to DTC account number 2902.
Upon receipt of duly and properly completed Notes by NCMI, NCMI or its agent
will instruct Bankers Trust or another bank chosen by NCMI to transfer by the
close of business on such day in immediately available funds, an amount equal
to the net proceeds of the Notes, to BANK AMERICA NATIONAL TRUST CO., or
another bank designated by the Company in a written notice to NCMI, for the
account of the Company. NCMI will mail written confirmations of each such
purchase or placement to the Company, which confirmations shall set forth
principal amounts, maturities and denominations of the Notes purchased or
placed and the applicable interest rates or discounts.
The Company understands that, in connection with the sale of the Notes,
information reports relating to the Company and its affiliates may be prepared
(hereinafter called the "Offering Materials"), which are distributed to NCMI
account executives and sales personnel and/or to purchasers and prospective
purchasers of the Notes. To provide a basis for the preparation of the Offering
Materials and to assist NCMI's normal credit review procedures, the Company
shall provide NCMI with copies of its and its affiliates' 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 NCMI any other information that NCMI shall reasonably
request for the purpose of the on-going credit review of the Company.
NCMI agrees to furnish the Company for review and approval the above-mentioned
information reports. No such information or any other written information,
circulars, statements to purchasers or potential purchasers will be so
distributed by NCMI without the prior written approval of either the Company or
its counsel unless such information is otherwise publicly available. The
Company shall indicate its written approval or disapproval of such information
by the close of business of the tenth calendar day after such information is
sent to the Company. Any such approval by the Company shall be deemed to be a
representation by it that the information 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 the 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 NCMI and provide to NCMI revised information
that corrects such untrue statement or omission. The Company agrees that NCMI's
acting as a dealer for the Notes is conditioned upon its being able to provide
such information to purchasers or potential purchasers as NCMI deems
appropriate.
The Company agrees that, in connection with this Agreement and the issue and
sale of the Notes by the Company, the Company will not knowingly make any untrue
statement (whether written or oral) of a material fact, or omit to state a
material fact necessary to make any statement, in light of the circumstances
under which it was made, not misleading, and the Company will not employ any
device, scheme of artifice to defraud or engage in any act, practice or course
of conduct which would operate as a fraud or deceit.
The Company represents and warrants that:
(a) the issue and sale of the Notes have been duly authorized and, upon
issuance and payment therefor in accordance with this Agreement and
delivery in accordance with the Depositary Agreement, the Notes will be
duly and validly issued and delivered and will constitute legal, valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms, subject to applicable bankruptcy, insolvency
and similar laws affecting creditors' rights generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law),
(b) upon issuance, the Notes will be exempt from the registration
requirements of the Securities Act of 1933, as amended, pursuant to Section
3(a)(3) thereof,
(c) this Agreement and the Depositary Agreement have been duly authorized,
executed and delivered by the Company and constitute legal, valid and
binding obligations of the Company enforceable against the Company in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and
subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law) and
to limitations on indemnification under applicable law,
(d) there are no consents, authorizations or approvals of, or filings
with, any government authority required in connection with the issuance or
sale by the Company of the Notes or the performance of its obligations
thereunder or under this Agreement, except as may be required by state
securities laws,
(e) the Company is not an "investment company" or a company "controlled"
by an "investment company" within the meaning of the Investment Company Act
of 1940, as amended,
(f) the obligations of the Company under the Notes rank at least pari
passu with all other unsecured obligations of the Company for money
borrowed or advance of credit or represented by guarantees, and
(g) the financial reports prepared by the Company are and will be in
accordance with its books and records, and are and will be complete and
correct and present fairly its financial position as of the dates set forth
therein, all in conformity with generally accepted accounting principles
and practices applied on a consistent basis, it being understood that in
the case of quarterly reports, there may be normal year-end adjustments.
Each sale of Notes by the Company hereunder shall be deemed to be a
representation by it that:
(a) the representations, warranties and covenants of the Company contained
or incorporated in this Agreement are true and correct on and as of the
date of such sale, and
(b) no event has occurred and is continuing, or would result from such
sale, which constitutes or would constitute an event of default under any
of the Company's indebtedness for money borrowed, obligations as lessee
under capital leases or under any guarantees by the Company of such
indebtedness or capital lease obligations or which would cause, or permit
the holder of such indebtedness or obligation to cause, such indebtedness
or obligation to become due prior to its stated maturity.
The Company will indemnify and hold harmless NCMI and any affiliate, director,
officer, employee or agent of NCMI 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 information
report or any information provided to NCMI hereunder includes an untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or
(b) arising out of the breach by the Company of any agreement or
representation made or deemed made pursuant to this Agreement or (c)
arising out of or related in any way to the Depositary Agreement or the
transactions contemplated thereby, or
The above indemnification shall not apply to the extent that the liability,
loss, damage, claim, cost or expense arises from (1) the inclusion by NCMI of an
untrue statement of a material fact or omission to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in any Annual
Information Report or Interim Information Report that has not been approved by
the Company pursuant to this Agreement, (2) any device, scheme, or artifice to
defraud or engage in any act, practice or course of conduct on the part of NCMI
which would operate as a fraud or deceit, or (3) NCMI's gross negligence or
willful misconduct in the performance or failure to perform its obligations
under this agreement. In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in this paragraph is
for any reason held unenforceable, although applicable in accordance with the
terms of this paragraph, the Company, on the one hand, and NCMI, 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 to, or through, NCMI and the aggregate
commissions and fees earned by or through NCMI hereunder.
The Company shall reimburse NCMI for all of its out-of-pocket expenses related
to this Agreement and the transactions contemplated hereby (including but not
limited to the printing and distribution of any Annual Information Report or
Interim Information Report and any advertising expenses) and for the reasonable
fees and out-of-pocket expenses of NCMI's counsel.
The Company agrees to treat all knowledge, information and records, from
whatever source, whether written or otherwise, relating to investors of the
Notes as the confidential and proprietary records of NCMI. No such knowledge,
information or records may be released by the Company to any other person or
party without the express prior written consent of NCMI, unless (i) such
knowledge, information or records have become available to the public other than
as a result of a disclosure by or through the Company, or (ii) the Company is
required in connection with any legal or regulatory proceeding to disclose such
knowledge, information or records; provided, however, that in the event that the
Company is so required, the Company agrees to provide NCMI with prompt oral and
written notice, unless notice is prohibited by law (in which case such notice
shall be provided as soon as legally permissible), of any such requirement so
that NCMI or its affiliates may seek a protective order or other appropriate
remedy. The Company agrees to cooperate with NCMI, at its expense, any efforts
to obtain such remedies, but this provision shall not be construed to require
the Company to undertake litigation or other legal proceedings on its own
behalf. In the event that such protective order or other remedy is not promptly
obtained, such portions of such knowledge, information or records as, pursuant
to the written opinion of counsel addressed to NCMI, are required to be
disclosed, may be disclosed, and the person making such disclosure will exercise
reasonable efforts to obtain reliable assurance that confidential treatment will
be accorded thereto. In addition, the knowledge, information or records may be
disclosed to the extent required in the course of inspections or inquiries by
federal or state regulatory agencies to whose jurisdictions the Company is
subject and that have the legal right to inspect the files that contain the
knowledge, information or records, provided that the Company shall advise NCMI
promptly both telephonically and in writing prior to such disclosure.
All notices required or permitted under the terms and provisions hereof shall be
in writing (which shall include electronic 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:
Xxxxxxx X. Xxxx
Mercury Finance Company
00 Xxxxxx Xxxx., Xxx. 000
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to NCMI:
Xx. Xxxxxx X. Xxxxxxx
NationsBanc Capital Markets, Inc.
NationsBank Corporate Center
000 X. Xxxxx Xxxxxx XX0000-000-00
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
This Agreement may be terminated, at any time, by the Company, upon notice to
such effect to NCMI, or by NCMI, upon notice to such effect to the Company. Any
such termination, however, shall not affect the rights or responsibilities of
the parties arising prior to the termination of this Agreement.
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 laws of the State of New York.
If the foregoing is in accordance with your understanding of this Agreement,
please sign and return to us a counterpart hereof, whereupon this Agreement
along with all counterparts will become a binding agreement among the parties
hereto in accordance with its terms.
Very truly yours,
Accepted and agreed to as of the date first written above.
MERCURY FINANCE COMPANY
BY: /s/ Xxxxxxx Xxxx
Xxxxxxx Xxxx
Vice President, Treasurer and Chief Financial Director
NATIONSBANC CAPITAL MARKETS, INC.
BY: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Senior Vice President
