Exhibit 1.1
$30,000,000
Dollar Financial Group, Inc.
9.75% Senior Notes due 2011
PURCHASE AGREEMENT
June 20, 2005
Credit Suisse First Boston
LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629.
Ladies and Gentlemen:
1.
Introductory. Dollar Financial Group, Inc., a New
York corporation (the
“Company”), proposes,
subject to the terms and conditions stated herein, to issue and
sell to Credit Suisse First Boston, LLC (the initial
“Purchaser”) an aggregate of
U.S. $30 million principal amount of its
9.75% Senior Notes due 2011 (the
“Offered
Securities”). The Company’s obligations under the
Offered Securities, including the due and punctual payment of
interest on the Offered Securities, shall be fully and
unconditionally guaranteed (each, a
“Guarantee”and, collectively, the
“Guarantees”) on a joint and several basis by
Dollar Financial Corp., formerly known as DFG Holdings, Inc.
(“Holdings”) and the Company’s existing
and future U.S. direct and indirect subsidiaries, including
Any Kind Check Cashing Centers, Inc., Cash Unlimited of Arizona,
Inc., Check Mart of Louisiana, Inc., Check Mart of New Mexico,
Inc., Check Mart of Pennsylvania, Inc., Check Mart of
Texas,
Inc., Check Mart of Wisconsin, Inc., DFG Canada, Inc., DFG
International, Inc., DFG World, Inc., Dollar Financial Insurance
Corp., Financial Exchange Company of Ohio, Inc., Financial
Exchange Company of Pennsylvania, Inc., Financial Exchange
Company of Pittsburgh, Inc., Financial Exchange Company of
Virginia, Inc., Loan Mart of Oklahoma, Inc., Monetary Management
Corporation of Pennsylvania, Monetary Management of California,
Inc., Monetary Management of Maryland, Inc., Monetary Management
of New York, Inc., Money Mart Express, Inc., MoneyMart, Inc.,
Pacific Ring Enterprises, Inc., PD Recovery, Inc. and We The
People USA, Inc. (each, a
“Subsidiary
Guarantor” and, together with Holdings, the
“Guarantors”). As used herein, the term
“Offered Securities” shall include the
Guarantees thereof by the Guarantors, unless the context
otherwise requires. The Offered Securities will be issued under
an indenture, dated as of November 13, 2003 (as previously
supplemented, the
“Indenture”), between the
Company, the Guarantors and U.S. Bank National Association,
as Trustee (the
“Trustee”).
The holders of the Offered Securities will be entitled to the
benefits of a Registration Rights Agreement, to be dated on or
about June 23, 2005, among the Company, the Guarantors and
the Purchaser (the “Registration Rights
Agreement”), pursuant to which the Company has agreed
to file an exchange offer registration statement with the
Securities and Exchange Commission (the
“Commission”) to exchange the Offered
Securities for a new issue of substantially identical debt
securities registered under the Securities Act of 1933, as
amended (the “Securities Act”).
2. Representations and Warranties of the Company and the
Guarantors. Each of the Company and the Guarantors, jointly
and severally, represents and warrants to, and agrees with, the
Purchaser that:
|
|
| |
(a) An offering circular relating to the Offered Securities
has been prepared by the Company. Such offering circular (the
“Offering Circular”), as supplemented as of the
date of this Agreement, together with the documents listed in
Schedule A hereto and any other document approved by the
Company or any Guarantor for use in connection with the
contemplated resale of the Offered Securities, are hereinafter
collectively referred to as the “Offering
Document”. On the date of this Agreement, the Offering
Document does not include any untrue statement of a material
fact or omit to state any material |
|
|
| |
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements
in or omissions from the Offering Document based upon written
information furnished to the Company or the Guarantors by the
Purchaser specifically for use therein, it being understood and
agreed that the only such information is that described as such
in Section 7(b) hereof. Except as disclosed in the Offering
Document, on the date of this Agreement, the Company’s
Annual Report on Form 10 K most recently filed with the
Commission and all subsequent reports (collectively, the
“Exchange Act Reports”) which have been filed
by the Company with the Commission or sent to shareholders
pursuant to the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), do not include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such
documents, when they were filed with the Commission, conformed
in all material respects to the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder. |
| |
| |
(b) The Offered Securities have been duly authorized by the
Company; and when the Offered Securities are delivered and paid
for pursuant to this Agreement and the Indenture on the Closing
Date (as defined below), the Offered Securities will have been
duly executed, authenticated, issued and delivered, will be
entitled to the benefits of the Indenture and security provided
by the Pledge Agreements (as defined below) and will be valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, receivership, moratorium
and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity
principles whether arising in a court of equity or law. The
Offered Securities will conform in all material respects to the
description thereof in the Offering Document. |
| |
| |
(c) The Guarantee to be endorsed on the Offered Securities
by each Guarantor has been duly authorized by each such
Guarantor and, when issued, will have been duly executed and
delivered by each such Guarantor. When the Offered Securities
have been executed, authenticated and issued in accordance with
the terms of the Indenture, the Guarantee of each Guarantor
endorsed thereon will constitute a valid and legally binding
obligation of such Guarantor, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, receivership, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and to general equity principles whether arising in a
court of equity or law. The Guarantees will conform in all
material respects to the description thereof in the Offering
Document. |
| |
| |
(d) On the Closing Date, the Exchange Securities (as
defined in the Registration Rights Agreement and including any
Private Exchange Securities as defined therein) will have been
duly authorized by the Company; and when the Exchange Securities
are executed, authenticated and issued in accordance with the
terms of the Indenture, the Exchange Securities will be entitled
to the benefits of the Indenture and security provided by the
Pledge Agreements and will be the valid and legally binding
obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, receivership, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and to general equity principles whether arising in a
court of equity or law. The Exchange Securities will conform in
all material respects to the description thereof in the Offering
Document. |
| |
| |
(e) The Guarantee to be endorsed on the Exchange Securities
by each Guarantor has been duly authorized by each such
Guarantor and, when issued, will have been duly executed and
delivered by each such Guarantor and will conform in all
material respects to the description thereof contained in the
Offering Document. When the Exchange Securities have been
executed, authenticated and issued in accordance with the terms
of the Indenture, the Guarantee of each Guarantor endorsed
thereon will constitute a valid and legally binding obligation
of such Guarantor, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, receivership, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and to general equity principles whether arising in a
court of equity or law. |
2
|
|
| |
(f) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of New York, with power and authority (corporate and
other) to own its properties and conduct its business as
described in the Offering Document and the Exchange Act Reports;
and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure
to so qualify could not reasonably be expected to result in a
material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and
its subsidiaries (including the Subsidiary Guarantors) taken as
a whole (“Material Adverse Effect”), and
attached hereto as Schedule B is a list of all such
jurisdictions. |
| |
| |
(g) Holdings has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Offering Document and the Exchange Act Reports; and Holdings is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify could not
reasonably be expected to result in a Material Adverse Effect,
and attached hereto as Schedule B is a list of all such
jurisdictions. |
| |
| |
(h) The Company has no direct or indirect
U.S. subsidiaries other than the Subsidiary Guarantors. |
| |
| |
(i) Each subsidiary of the Company (including each
Subsidiary Guarantor) has been duly incorporated or organized
and is an existing corporation or other entity in good standing
under the laws of the jurisdiction of its incorporation or
organization, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Offering Document and the Exchange Act Reports; and each
subsidiary of the Company (including each Subsidiary Guarantor)
is duly qualified to do business as a foreign corporation or
other entity in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure
to so qualify could not reasonably be expected to have a
Material Adverse Effect, and attached hereto as Schedule B
is a list of all such jurisdictions for each Subsidiary
Guarantor; all of the issued and outstanding capital stock of
each subsidiary of the Company (including each Subsidiary
Guarantor) has been duly authorized and validly issued and is
fully paid and nonassessable; and, except as disclosed in the
Offering Document or permitted by the Indenture or the Pledge
Agreements, the capital stock of each subsidiary owned by the
Company (including each Subsidiary Guarantor), directly or
indirectly, is owned free from liens, encumbrances and defects. |
| |
| |
(j) Each of (i) the Indenture, (ii) the Pledge
Agreement, dated as of November 13, 2003 (the “DFG
International Pledge Agreement”), between DFG
International, Inc. and U.S. Bank National Association, as
collateral agent, (iii) the Pledge Agreement, dated as of
November 13, 2003 (the “DFG World Pledge
Agreement”), between and DFG World, Inc., and
U.S. Bank National Association, as collateral agent, and
(iii) the Pledge Agreement, dated as of December 21,
2004 (the “DFG Canada Pledge Agreement” and,
together with the DFG International Pledge Agreement and the DFG
World Pledge Agreement, the “Pledge
Agreements”), by and between DFG Canada, Inc. and
U.S. Bank National Association, as collateral agent, has
been duly authorized by the Company and the Guarantors party
thereto; each of the Indenture and the Pledge Agreements has
been duly executed and delivered by the Company and the
Guarantors party thereto and constitute a valid and legally
binding obligation enforceable against the Company and the
Guarantors party thereto in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights
or, in the case of the Pledge Agreements, the enforcement of the
security provided thereby and to general equity principles
whether arising in a court of equity or at law; each of the
Pledge Agreements creates a valid and perfected second priority
lien upon 65% of the capital stock of the directly owned foreign
subsidiaries of the Guarantor party thereto (the
“Collateral”) and will create a similar lien
upon the capital stock of any foreign subsidiary acquired or
organized by the Guarantor party thereto after the Closing Date
and required to be subjected to the lien of such Pledge
Agreement, subject only to the exceptions referred to in such
Pledge Agreement; and the Collateral is duly held by Xxxxx Fargo
Bank, National Association, as bailee of the Trustee and the |
3
|
|
| |
holders of the Offered Securities for purposes of perfecting the
second priority liens thereon, and all taxes required to be paid
with respect to the execution of the Indenture and the Pledge
Agreements and the issuance of the Offered Securities have been
paid. |
| |
| |
(k) The Guarantors party to the Pledge Agreements have good
and marketable title to the Collateral, in each case free from
liens, encumbrances and defects other than the liens of the
Pledge Agreements, subject only to liens not prohibited by the
Indenture or the Pledge Agreements; and the descriptions of the
Collateral contained in the granting clause of the Pledge
Agreements are correct and adequate for purposes of the Pledge
Agreements. |
| |
| |
(l) Except as disclosed in the Offering Document, there are
no contracts, agreements or understandings between the Company
or any of the Guarantors or any of their subsidiaries on the one
hand and any person or entity on the other that would give rise
to a valid claim against the Company or any of the Guarantors or
any of their subsidiaries or the Purchaser for a brokerage
commission, finder’s fee or other like payment. |
| |
| |
(m) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated
by this Agreement, the Indenture, the Pledge Agreements and the
Registration Rights Agreement in connection with the issuance
and sale of the Offered Securities by the Company and the
issuance of the Guarantees by the Guarantors, except such as may
be required under state securities laws and the order of the
Commission declaring the Exchange Offer Registration Statement
or the Shelf Registration Statement (each as defined in the
Registration Rights Agreement) effective. |
| |
| |
(n) The execution, delivery and performance of this
Agreement, the Indenture, the Pledge Agreements and the
Registration Rights Agreement by the Company and each Guarantor,
the issuance and sale of the Offered Securities by the Company
and the issuance of the Guarantees by the Guarantors and
compliance with the terms and provisions thereof will not result
in a breach or violation of any of the terms or provisions of,
or constitute a default under, (i) any statute, rule,
regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company
or any of the Guarantors or any of their properties,
(ii) the Replacement Credit Facility (as defined in the
Indenture), (iii) any agreement or instrument to which the
Company or any of the Guarantors is a party or by which the
Company or any of the Guarantors is bound or to which any of the
properties of the Company or any of the Guarantors is subject,
or (iv) the charter, by laws or other organizational
documents of the Company or any of the Guarantors, except, in
the case of clauses (i) and (iii), where such breach,
violation or default would not individually or in the aggregate
have a Material Adverse Effect, and the Company and each
Guarantor, as the case may be, has full power and authority to
authorize, issue and sell the Offered Securities with the
Guarantees endorsed thereon as contemplated by this Agreement. |
| |
| |
(o) This Agreement has been duly authorized, executed and
delivered by the Company and each Guarantor. |
| |
| |
(p) The Registration Rights Agreement has been duly
authorized by the Company and each of the Guarantors and, on the
Closing Date, will have been duly executed and delivered by the
Company and each of the Guarantors. When the Registration Rights
Agreement has been duly executed and delivered, the Registration
Rights Agreement will be a valid and legally binding obligation
of the Company and each of the Guarantors, enforceable against
the Company and each Guarantor in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, receivership, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and to general equity principles whether arising in a
court of equity or law. On the Closing Date, the Registration
Rights Agreement will conform in all material respects as to
legal matters to the description thereof in the Offering
Document. |
| |
| |
(q) Except as disclosed in the Offering Document, the
Company, the Guarantors and their subsidiaries have good and
marketable title to all real properties and all other properties
and assets owned |
4
|
|
| |
by them, in each case free from liens, encumbrances and defects
that would affect the value thereof or interfere with the use
made or to be made thereof by them except as could not
reasonably be expected to have individually or in the aggregate
a Material Adverse Effect; and except as disclosed in the
Offering Document, the Company, the Guarantors and their
subsidiaries hold any leased real or personal property under
valid and enforceable leases with no exceptions that would
interfere with the use made or to be made thereof by them except
as could not reasonably be expected to have individually or in
the aggregate a Material Adverse Effect. |
| |
| |
(r) The Company, the Guarantors and their subsidiaries
possess adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary to conduct
the business now operated by them and have not received any
notice of proceedings relating to the revocation or modification
of any such certificate, authority or permit that, if determined
adversely to them, would individually or in the aggregate have a
Material Adverse Effect. |
| |
| |
(s) No labor dispute with the employees of the Company, any
of the Guarantors or any of their subsidiaries exists or, to the
knowledge of the Company, any of the Guarantors or any of their
subsidiaries, is imminent that might have a Material Adverse
Effect. |
| |
| |
(t) None of the Company, any of the Guarantors or any of
their subsidiaries is in violation or default of (i) any
provision of its respective charter, by laws or other
organizational documents, (ii) the terms of any obligation,
agreement, covenant or condition contained in any indenture,
loan agreement, mortgage, lease or other agreement or instrument
to which the Company, any of the Guarantors or any of their
subsidiaries is a party or by which the Company, any of the
Guarantors, any of their subsidiaries or any of their respective
property is bound or (iii) any statute, rule, regulation or
order of any governmental agency or body or any court, domestic
or foreign, having jurisdiction over the Company, any of the
Guarantors, any of their subsidiaries or any of their respective
properties except, in the case of clauses (ii) and (iii),
as would not individually or in the aggregate have a Material
Adverse Effect. |
| |
| |
(u) Except as disclosed in the Offering Document, there are
no contracts, agreements or understandings between the Company,
any of the Guarantors or any of their subsidiaries and any
person or entity granting such person or entity the right to
require the Company or any such Guarantor or any of their
subsidiaries to file a registration statement under the
Securities Act with respect to any securities of the Company or
any such Guarantor or any of their subsidiaries or to require
the Company or any such Guarantor or any of their subsidiaries
to include such securities with the Exchange Securities with
respect to any registration statement filed with the Commission. |
| |
| |
(v) No “nationally recognized statistical rating
organization” as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act (i) has
imposed (or has informed the Company, any of the Guarantors or
any of their subsidiaries that it is considering imposing) any
condition (financial or otherwise) on the Company’s, any of
the Guarantors’ or any of their subsidiaries’
retaining any rating assigned to them or any of their respective
securities or (ii) has indicated to the Company, any of the
Guarantors or any of their subsidiaries that it is considering
(a) the downgrading, suspension or withdrawal of, or any
review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or
(b) any change in the outlook for any rating of the
Company, any of the Guarantors or any of their subsidiaries or
any of their respective securities. |
| |
| |
(w) The Company, the Guarantors and their subsidiaries own,
possess or can acquire on reasonable terms, adequate trademarks,
trade names and other rights to inventions, know how, patents,
copyrights, confidential information and other intellectual
property (collectively, “intellectual property
rights”) necessary to conduct the business now operated
by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights
of others with respect to any intellectual property rights that,
if determined adversely to the Company, any of the Guarantors or
any of their subsidiaries, would individually or in the
aggregate have a Material Adverse Effect. |
| |
| |
(x) Except as disclosed in the Offering Document, none of
the Company, any of the Guarantors or any of their subsidiaries
is in violation of any statute, rule, regulation, decision or
order of any |
5
|
|
| |
governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, “environmental laws”), owns or
operates any real property contaminated with any substance that
is subject to any environmental laws, is liable for any off site
disposal or contamination pursuant to any environmental laws or
is subject to any claim relating to any environmental laws,
which violation, contamination, liability or claim would
individually or in the aggregate have a Material Adverse Effect;
and none of the Company, any of the Guarantors or any of their
subsidiaries is aware of any pending investigation which might
lead to such a claim. |
| |
| |
(y) Except as disclosed in the Offering Document, there are
no pending actions, suits or proceedings against or affecting
the Company, any of the Guarantors, any of their subsidiaries or
any of their respective properties that, if determined adversely
to the Company, any of the Guarantors or any of their
subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely
affect the ability of the Company, any of the Guarantors or any
of their subsidiaries to perform their respective obligations
under this Agreement, the Indenture, the Pledge Agreements or
the Registration Rights Agreement, or which are otherwise
material in the context of the sale of the Offered Securities
and the issuance of the Guarantees; and no such actions, suits
or proceedings are, to the Company’s, any of the
Guarantors’ or any of their subsidiaries’ knowledge,
threatened or contemplated. |
| |
| |
(z) The financial statements included in the Offering
Document present fairly the financial position of the Company
and its consolidated subsidiaries (including the Subsidiary
Guarantors) as of the dates shown and their results of
operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with
generally accepted accounting principles in the United States
applied on a consistent basis. |
| |
| |
(aa) Except as disclosed in the Offering Document, since
the date of the latest audited financial statements included in
the Offering Document there has been no material adverse change
in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries
(including the Subsidiary Guarantors) taken as a whole
(“Material Adverse Change”), nor any
development or event involving a prospective Material Adverse
Change, and, except as disclosed in or contemplated by the
Offering Document, there has been no dividend or distribution of
any kind declared, paid or made by the Company or any of its
subsidiaries on any class of their respective capital stock. |
| |
| |
(bb) The Company is subject to the reporting requirements
of either Section 13 or Section 15(d) of the Exchange
Act and files reports with the Commission on the Electronic Data
Gathering, Analysis, and Retrieval (XXXXX) system. |
| |
| |
(cc) The Company maintains and will maintain disclosure
controls and procedures (as defined as Rule 13a-14 of the
Exchange Act) designed to ensure that information required to be
disclosed by the Company in the reports that it files or submits
under the Exchange Act is recorded, processed, summarized and
reported in accordance with the Exchange Act and the rules and
regulations thereunder. The Company has carried out and will
carry out evaluations, under the supervision and with the
participation of the Company’s management, of the
effectiveness of the design and operation of the Company’s
disclosure controls and procedures in accordance with
Rule 13a-15 of the Exchange Act. |
| |
| |
(dd) There is and has been no failure on the part of the
Company or any of its directors or officers, in their capacities
as such, to comply in any material respect with any provision of
the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith. |
| |
| |
(ee) None of the Company, any of the Guarantors or any of
their subsidiaries is an open-end investment company, unit
investment trust or face-amount certificate company that is or
is required to be registered under Section 8 of the United
States Investment Company Act of 1940, as amended (the
“Investment Company Act”); and none of the
Company, any of the Guarantors or any of their subsidiaries is
and, after giving effect to the offering and sale of the Offered
Securities and the issuance of the Guarantees and the
application of the proceeds of the sale of the Offered
Securities with the |
6
|
|
| |
Guarantees endorsed thereon as described in the Offering
Document, will be an “investment company” as defined
in the Investment Company Act. |
| |
| |
(ff) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered
Securities are listed on any national securities exchange
registered under Section 6 of the Exchange Act or quoted on
a U.S. automated inter dealer quotation system. |
| |
| |
(gg) None of the Company, any of the Guarantors, any of
their subsidiaries or any agent thereof acting on the behalf of
them has taken, and none of them will take, any action that
might cause this Agreement or the issuance or sale of the
Offered Securities with the Guarantees endorsed thereon to
violate Regulation T, Regulation U or
Regulation X of the Board of Governors of the Federal
Reserve System. |
| |
| |
(hh) The offer and sale of the Offered Securities by the
Company and the issuance of the Guarantees by each of the
Guarantors to the Purchaser in the manner contemplated by this
Agreement will be exempt from the registration requirements of
the Securities Act by reason of Section 4(2) thereof or
Regulation S thereunder; and it is not necessary in
connection with such offer or sale to qualify an indenture in
respect of the Offered Securities under the United States Trust
Indenture Act of 1939, as amended (the “Trust Indenture
Act”). |
| |
| |
(ii) The Indenture conforms and has been qualified in all
material respects to the requirements of the Trust Indenture
Act, and the rules and regulations of the Commission applicable
to an indenture which is qualified thereunder. |
| |
| |
(jj) Neither the Company, nor any of its affiliates
(including the Guarantors), nor any person acting on its or
their behalf (other than the Purchaser, as to whom the Company
and its subsidiaries make no representation) (i) has within
the six-month period prior to the date hereof, offered or sold
in the United States or to any U.S. person (as such terms
are defined in Regulations S under the Securities Act) the
Offered Securities or any security of the same class or series
as the Offered Securities or (ii) has offered or will offer
or sell the Offered Securities (A) in the United States by
means of any form of general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities Act
or (B) with respect to any securities sold in reliance on
Rule 903 of Regulation S, by means of any directed
selling efforts within the meaning of Rule 902(c) of
Regulation S. The Company, its affiliates (including the
Guarantors) and any person acting on its or their behalf (other
than the Purchaser, as to whom the Company and its subsidiaries
make no representation) have complied and will comply with the
offering restrictions requirements of Regulation S. None of
the Company, its affiliates (including the Guarantors) and any
person acting on its or their behalf (other than the Purchaser,
as to whom the Company and its subsidiaries make no
representation) has engaged or will engage in any directed
selling efforts with the meaning of Regulation S with
respect to the Offered Securities or the Guarantees. None of the
Company, any of the Guarantors or any of their subsidiaries has
entered or will enter into any contractual arrangement with
respect to the distribution of the Offered Securities except for
this Agreement. |
| |
| |
(kk) The Offered Securities offered and sold in reliance on
Regulation S have been and will be offered and sold only in
offshore transactions. |
| |
| |
(ll) The sale of the Offered Securities pursuant to
Regulation S is not part of a plan or scheme to evade the
registration provisions of the Securities Act. |
| |
| |
(mm) The Intercreditor Agreement, dated as of
November 13, 2003, as amended by that certain First
Amendment to Intercreditor Agreement, dated as of April 12,
2004 (the “Intercreditor Agreement”), between
Xxxxx Fargo Bank, National Association, as Administrative Agent
and Bailee (as defined therein), and the Trustee, has been duly
authorized, executed and delivered by the Company and each
Guarantor. |
3. Purchase, Sale and Delivery of Offered
Securities. On the basis of the representations, warranties
and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to sell to the
Purchaser, and the Purchaser agrees to purchase from the
Company, at a purchase price of
7
100.9625% of the principal amount thereof plus accrued interest
from May 15, 2005 to the Closing Date (exclusive of the
Closing Date), the Offered Securities.
The Company will deliver against payment of the purchase price
the Offered Securities, with the Guarantees endorsed thereon, to
be purchased by the Purchaser hereunder and to be offered and
sold by the Purchaser in reliance on Regulation S (the
“Regulation S Securities”) in the form of
one or more permanent global securities in registered form
without interest coupons (the “Regulation S Global
Securities”) which will be deposited with the Trustee
as custodian for The Depository Trust Company
(“DTC”) for the respective accounts of the DTC
participants for Euroclear Bank S.A./ N.V., as operator of the
Euroclear System (“Euroclear”), and Clearstream
Banking, société anonyme (“Clearstream,
Luxembourg”) and registered in the name of
Cede & Co., as nominee for DTC. Interests in any
permanent global securities will be held only in book entry form
through DTC, except in the limited circumstances described in
the Offering Document. The Company will deliver against payment
of the purchase price the Offered Securities, with the
Guarantees endorsed thereon, to be purchased by the Purchaser
hereunder and to be offered and sold by the Purchaser in
reliance on Rule 144A under the Securities Act (the
“144A Securities”) in the form of one or more
permanent global securities in registered form without interest
coupons (the “Restricted Global Securities”)
deposited with the Trustee as custodian for DTC and registered
in the name of Cede & Co., as nominee for DTC. The
Regulation S Global Securities and the Restricted Global
Securities shall be assigned separate CUSIP numbers. The
Restricted Global Securities and the Regulation S Global
Securities shall include the applicable legend regarding
restrictions on transfer set forth under “Transfer
Restrictions” in the Offering Document. Until the
termination of the distribution compliance period (as defined in
Regulation S) with respect to the offering of the Offered
Securities, interests in the Regulation S Global Securities
may only be held by the DTC participants for Euroclear and
Clearstream, Luxembourg. Interests in any permanent global
securities will be held only in book entry form through
Euroclear, Clearstream, Luxembourg or DTC, as the case may be,
except in the limited circumstances described in the Offering
Document.
Payment for the Regulation S Securities and the 144A
Securities, each with the Guarantees endorsed thereon, shall be
made by the Purchaser in immediately available funds by official
check or checks or wire transfer to an account at a bank
acceptable to the Purchaser drawn to the order of the Company at
the office of Xxxxxx Xxxxxxxx LLP, 3000 Two Xxxxx Square,
Eighteenth and Xxxx Xxxxxxx Xxxxxxxxxxxx, XX 00000-0000 at
9:00 a.m., (Philadelphia time), on June 23, 2005, or
at such other time not later than seven full business days
thereafter as the Purchaser and the Company determine, such time
being herein referred to as the “Closing Date”,
against delivery to the Trustee as custodian for DTC of
(i) the Regulation S Global Securities, with the
Guarantees endorsed thereon, representing all of the
Regulation S Securities for the respective accounts of the
DTC participants for Euroclear and Clearstream, Luxembourg and
(ii) the Restricted Global Securities, with the Guarantees
endorsed thereon, representing all of the 144A Securities. The
Regulation S Global Securities and the Restricted Global
Securities will be made available for checking at the above
office of Xxxxxx Xxxxxxxx LLP at least 24 hours prior to
the Closing Date.
4. Representations by the Purchaser; Resale by the
Purchaser.
(a) The Purchaser represents and warrants to the Company
and the Guarantors that it is an “accredited investor”
within the meaning of Regulation D under the Securities Act.
(b) The Purchaser acknowledges that the Offered Securities
have not been registered under the Securities Act and may not be
offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance
with Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act. The Purchaser
represents and agrees that it has offered and sold the Offered
Securities and will offer and sell the Offered Securities
(i) as part of its distribution at any time and
(ii) otherwise until the later of 40 days after the
commencement of the offering and the Closing Date, only in
accordance with Rule 903 or Rule 144A under the
Securities Act. Accordingly, neither the Purchaser nor its
affiliates, nor any persons acting on its or their behalf, have
engaged or will engage in any directed selling efforts with
respect to the Offered Securities, and the Purchaser, its
affiliates and all persons acting on its or their behalf have
complied and will comply with the offering restrictions
requirement of Regulation S. The Purchaser agrees that, at
or prior to confirmation of sale of the Offered Securities,
other than a sale pursuant
8
to Rule 144A, the Purchaser will have sent to each
distributor, dealer or person receiving a selling concession,
fee or other remuneration that purchases the Offered Securities
from it during the restricted period a confirmation or notice to
substantially the following effect:
|
|
| |
“The Securities covered hereby have not been registered
under the U.S. Securities Act of 1933 (the “Securities
Act”) and may not be offered or sold within the United
States or to, or for the account or benefit of,
U.S. persons (i) as part of their distribution at any
time or (ii) otherwise until 40 days after the later
of the date of the commencement of the offering and the closing
date, except in either case in accordance with Regulation S (or
Rule 144A if available) under the Securities Act. Terms
used above have the meanings given to them by
Regulation S.” |
Terms used in this subsection (b) have the meanings
given to them by Regulation S.
(c) The Purchaser agrees that it and each of its affiliates
has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered
Securities except with the prior written consent of the Company.
(d) The Purchaser agrees that it and each of its affiliates
will not offer or sell the Offered Securities in the United
States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the
Securities Act, including, but not limited to (i) any
advertisement, article, notice or other communication published
in any newspaper, magazine or similar media or broadcast over
television or radio, or (ii) any seminar or meeting whose
attendees have been invited by any general solicitation or
general advertising. The Purchaser agrees, with respect to
resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such
resale or otherwise prior to settlement of such resale a notice
to the effect that the resale of such Offered Securities has
been made in reliance upon the exemption from the registration
requirements of the Securities Act provided by Rule 144A.
(e) The Purchaser represents and warrants that (i) it
has not offered or sold and prior to the expiry of a period of
six months from the Closing Date, will not offer or sell any
Offered Securities to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or
agent) for purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995; (ii) it
has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning
of section 21 of the Financial Services and Markets Xxx
0000 (the “FSMA”)) received by it in connection with
the issue or sale of any Offered Securities in circumstances in
which section 21(1) of the FSMA does not apply to the
Company or any of the Guarantors; and (iii) it has complied
and will comply with all applicable provisions of the FSMA with
respect to anything done by it in relation to the Offered
Securities in, from or otherwise involving the United Kingdom.
5. Certain Agreements of the Company and the
Guarantors. Each of the Company and the Guarantors jointly
and severally agrees with the Purchaser that:
|
|
| |
(a) The Company will advise the Purchaser promptly of any
proposal to amend or supplement the Offering Document and will
not effect such amendment or supplementation without the
Purchaser’s consent (which will not be unreasonably
withheld), unless the Company determines that it must do so to
avoid a violation of applicable law. If, at any time prior to
the completion of the resale of the Offered Securities by the
Purchaser, any event occurs as a result of which the Offering
Document as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
the Company promptly will notify the Purchaser of such event and
promptly will prepare, at its own expense, an amendment or
supplement which will correct such statement or omission.
Neither the Purchaser’s consent to, nor its delivery to
offerees or investors of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in
Section 6. |
| |
| |
(b) The Company will furnish to the Purchaser copies of the
Offering Document and all amendments and supplements to such
document, in each case as soon as available and in such
quantities |
9
|
|
| |
as the Purchaser requests, and the Company will furnish to the
Purchaser on the date hereof three copies of the Offering
Document signed by a duly authorized officer of the Company, one
of which will include the independent accountants’ report
therein manually signed by such independent accountants. At any
time when the Company is not subject to Section 13 or 15(d)
of the Exchange Act, the Company will promptly furnish or cause
to be furnished to the Purchaser and, upon request of holders
and prospective purchasers of the Offered Securities, to such
holders and prospective purchasers, copies of the information
required to be delivered to holders and prospective purchasers
of the Offered Securities pursuant to Rule 144A(d)(4) under
the Securities Act (or any successor provision thereto) in order
to permit compliance with Rule 144A in connection with
resales by such holders of the Offered Securities. The Company
or the Guarantors will pay the expenses of printing and
distributing to the Purchaser all such documents. |
| |
| |
(c) The Company will arrange for the qualification of the
Offered Securities for sale and the determination of their
eligibility for investment under the laws of such jurisdictions
in the United States and Canada as the Purchaser designates and
will continue such qualifications or determinations in effect so
long as required for the resale of the Offered Securities by the
Purchaser provided that the Company will not be required to
qualify as a foreign corporation, to file a general consent to
service of process or to subject itself to taxation in any such
jurisdiction where it is not then so subject. |
| |
| |
(d) During the period of two years after the Closing Date,
the Company will, upon request, furnish to the Purchaser and any
holder of Offered Securities a copy of the restrictions on
transfer applicable to the Offered Securities. |
| |
| |
(e) During the period of two years after the Closing Date,
the Company will not, and will not permit any of its affiliates
(as defined in Rule 144 under the Securities Act and
including, without limitation, the Guarantors) to, resell any of
the Offered Securities that have been reacquired by any of them. |
| |
| |
(f) During the period of two years after the Closing Date,
none of the Company, any of the Guarantors or any of their
subsidiaries will be or become, an open end investment company,
unit investment trust or face amount certificate company that is
or is required to be registered under Section 8 of the
Investment Company Act. |
| |
| |
(g) The Company and the Guarantors will pay all expenses
incident to the performance of their respective obligations
under this Agreement, the Indenture, the Pledge Agreements and
the Registration Rights Agreement, including: (i) the fees
and expenses of the Trustee and its professional advisers;
(ii) all expenses in connection with the execution, issue,
authentication, packaging and initial delivery of the Offered
Securities and, as applicable, the Exchange Securities, the
preparation and printing of this Agreement, the Registration
Rights Agreement, the Offered Securities, the Exchange
Securities, the Indenture, the Pledge Agreements, the Offering
Document and any amendments and supplements thereto, and any
other document relating to the issuance, offer, sale and
delivery of the Offered Securities and, as applicable, the
Exchange Securities; (iii) the cost of qualifying the
Offered Securities for trading in The
Portalsm
Market of The Nasdaq Stock Market, Inc.
(“PORTAL”) and any expenses incidental thereto,
(iv) the cost of any advertising approved by the Company or
any Guarantor in connection with the issue of the Offered
Securities, (v) any expenses (including fees and
disbursements of counsel) incurred in connection with
qualification of the Offered Securities or the Exchange
Securities for sale under the laws of such jurisdictions in the
United States and Canada as the Purchaser designates and the
printing of memoranda relating thereto, (vi) any fees
charged by investment rating agencies for the rating of the
Offered Securities or the Exchange Securities, (vii) all
expenses incurred in distributing the Offering Document
(including any amendments and supplements thereto) to the
Purchaser and (viii) all travel expenses of the Purchaser
and the officers and employees of the Company and any of the
Guarantors and any other expenses of the Purchaser, the Company
or any of the Guarantors in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities
from the Purchaser. |
10
|
|
| |
(h) In connection with the offering, until the Purchaser
shall have notified the Company of the completion of the resale
of the Offered Securities, neither the Company nor any of its
affiliates (including the Guarantors) has or will, either alone
or with one or more other persons, bid for or purchase for any
account in which it or any of its affiliates (including the
Guarantors) has a beneficial interest any Offered Securities or
attempt to induce any person to purchase any Offered Securities;
and neither it nor any of its affiliates (including the
Guarantors) will make bids or purchases for the purpose of
creating actual, or apparent, active trading in, or of raising
the price of, the Offered Securities. |
| |
| |
(i) For a period of 180 days after the date hereof,
the Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the
Commission a registration under the Securities Act relating to,
any U.S. dollar denominated debt securities issued or
guaranteed by the Company and having a maturity of more than one
year from the date of issue, or publicly disclose its intention
to make any such offer, sale, contract, pledge, disposition or
filing, without the prior written consent of the Purchaser. The
preceding sentence shall not apply to (i) any amendment to
or increase of the Company’s bank lending facilities or
(ii) the registrations contemplated by the Registration
Rights Agreement. The Company will not at any time offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, any securities under circumstances where such offer,
sale, contract, pledge or disposition would cause the exemption
afforded by Section 4(2) of the Securities Act or the safe
harbor of Regulation S thereunder to cease to be applicable
to the offer and sale of the Offered Securities. |
| |
| |
(j) The proceeds of the offering of the Offered Securities
will be applied as set forth under “Use of Proceeds”
in the Offering Document. |
6. Conditions of the Obligation of the Purchaser.
The obligation of the Purchaser to purchase and pay for the
Offered Securities will be subject to the accuracy of the
representations and warranties on the part of the Company and
the Guarantors herein, to the accuracy of the statements of the
officers of the Company and the Guarantors made pursuant to the
provisions hereof, to the performance by the Company and the
Guarantors of their respective obligations hereunder and to the
following additional conditions precedent:
|
|
| |
(a) On the date hereof (prior to the execution of this
Agreement) and also at the Closing Date, Ernst & Young
LLP shall have furnished to the Purchaser a letter or letters,
dated the respective dates of delivery thereof, in form and
substance satisfactory to the Purchaser, to the effect set forth
in Schedule C hereto. On the date hereof (or in any event,
no later than the Closing Date), the Purchaser shall herein
receive a letter dated such date from (i) LaPorte, Sehrt,
Xxxxx & Hand with respect to the financial statements
of American Check Cashers of Lafayette, L.L.C. and Subsidiary,
Alexandria Financial Services, L.L.C. and Subsidiary, and
Southern Financial Services, L.L.C. in form and substance
satisfactory to the Purchaser and (2) Singer Lewak
Xxxxxxxxx & Xxxxxxxxx LLP with respect to the financial
statements of We The People Forms and Service Centers, USA, Inc.
(Member of the We The People Affiliated Group of Companies) in
form and substance satisfactory to the Purchaser. |
| |
| |
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or
any development or event involving a prospective change, in the
condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries (including the
Subsidiary Guarantors) taken as one enterprise which, in the
judgment of the Purchaser, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the
offering or the sale of and payment for the Offered Securities;
(ii) any downgrading in the rating of any debt securities
of the Company or any Guarantor by any “nationally
recognized statistical rating organization” (as defined for
purposes of Rule 436(g)(2) under the Securities Act), or
any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the
Company or any Guarantor (other than an announcement with
positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating) or any
announcement that the Company or any Guarantor has been placed
on negative outlook; (iii) any change in U.S. or
international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in the
judgment of the Purchaser, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the
Offered Securities, whether in the primary market or in respect
of dealings in the |
11
|
|
| |
secondary market; (iv) any material suspension or material
limitation of trading in securities generally on the New York
Stock Exchange or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of
the Company or any Guarantor on any exchange or in the over the
counter market; (v) any banking moratorium declared by
U.S. Federal or New York authorities; (vi) any major
disruption of settlements of securities or clearance services in
the United States; or (vii) any attack on, outbreak or
escalation of hostilities or act of terrorism involving the
United States, any declaration of war by Congress or any other
national or international calamity or emergency if, in the
judgment of the Purchaser, the effect of any such attack,
outbreak, escalation, act, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion
of the offering or sale of and payment for the Offered
Securities. |
| |
| |
(c) The Purchaser shall have received an opinion, dated the
Closing Date, in form and substance reasonably satisfactory to
the Purchaser, of Xxxxxx Xxxxxxxx LLP, counsel for the Company
and the Guarantors, to the effect set forth in Schedule D. |
| |
| |
(d) The Purchaser shall have received an opinion, dated the
Closing Date, in form and substance reasonably satisfactory to
the Purchaser, of Xxxxx Means, Vice President and General
Counsel of the Company, to the effect set forth in
Schedule E. |
| |
| |
(e) The Purchaser shall have received from
Xxxxxxxx & Xxxxxxxx LLP, counsel for the Purchaser,
such opinion or opinions, dated the Closing Date, with respect
to the incorporation of the Company, the validity of the Offered
Securities, the Offering Circular, the exemption from
registration for the offer and sale of the Offered Securities
with the Guarantees endorsed thereon to the Purchaser and the
resales by the Purchaser as contemplated hereby and other
related matters as the Purchaser may require, and the Company
and the Guarantors shall have furnished to such counsel such
documents as they request for the purpose of enabling them to
pass upon such matters. |
| |
| |
(f) The Purchaser shall have received a certificate, dated
the Closing Date, of the Chief Executive Officer or the
President and the Chief Financial Officer or Treasurer of the
Company and each Guarantor in their capacity as officers of the
Company and the Guarantors, respectively, in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and
warranties of the Company or the Guarantor, as the case may be,
in this Agreement are true and correct; the Company or such
Guarantor has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date; and, subsequent to the date of the
most recent financial statements in the Offering Document, there
has been no Material Adverse Change, nor any development or
event involving a prospective Material Adverse Change, except as
set forth in the Offering Document, the Exchange Act Reports or
as described in such certificate. |
| |
| |
(g) The Fourth Amendment to the Second Amended and Restated
Credit Agreement, dated as of June 20, 2005, by and among
the Company, Holdings, the Lenders (as defined therein), Xxxxx
Fargo Bank, National Association, as administrative agent to the
Lenders (the “Administrative Agent”),
(i) shall be in form satisfactory to the Purchaser,
(ii) shall have been duly authorized, executed and
delivered by the parties thereto, (iii) shall constitute a
valid, legally binding and enforceable obligation of the parties
thereto and shall be in full force and effect and (iv) no
event of default or event which upon notice or lapse of time, or
both, would become an event of default on the part of any party
thereto shall exist thereunder. |
| |
| |
(h) The First Amendment to Intercreditor Agreement, dated
as of April 12, 2004, by and between Xxxxx Fargo Bank,
National Association, as Administrative Agent and Bailee (as
defined therein), and the Trustee, (i) shall be in full
force and effect and (ii) no event of default or event
which upon notice or lapse of time, or both, would become an
event of default on the part of any party thereto shall exist
thereunder. |
Each of the Company and the Guarantors will furnish the
Purchaser with such conformed copies of such opinions,
certificates, letters and documents as the Purchaser reasonably
requests. In its sole discretion the Purchaser may waive
compliance with any conditions to the obligation of the
Purchaser hereunder.
12
7. Indemnification and Contribution. (a) The
Company and the Guarantors will indemnify and hold harmless the
Purchaser, its partners, members, directors, officers and
affiliates and each person, if any, who controls the Purchaser
within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities, joint or
several, to which the Purchaser may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Offering Document, or any amendment or supplement thereto, or
the Exchange Act Reports, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
including any losses, claims, damages or liabilities arising out
of or based upon the Company’s failure to perform its
obligations under Section 5(a) of this Agreement, and will
reimburse the Purchaser for any legal or other expenses
reasonably incurred by the Purchaser in connection with
investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided,
however, that neither the Company nor any Guarantor will be
liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company or
any of the Guarantors by the Purchaser specifically for use
therein, it being understood and agreed that the only such
information consists of the information described as such in
subsection (b) below.
(b) The Purchaser will indemnify and hold harmless the
Company and each Guarantor, their respective directors and
officers and each person, if any, who controls the Company or
any Guarantor within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages or
liabilities to which the Company or any Guarantor may become
subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of
any material fact contained in the Offering Document, or any
amendment or supplement thereto, or arise out of or are based
upon the omission or the alleged omission to state therein 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 each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company or
such Guarantor by the Purchaser specifically for use therein,
and will reimburse any legal or other expenses reasonably
incurred by the Company or such Guarantor in connection with
investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished
by the Purchaser consists of the following information in the
Offering Document: paragraphs three and ten and the second
sentence of paragraph eleven under the caption “Plan of
Distribution”; provided, however, that the Purchaser shall
not be liable for any losses, claims, damages or liabilities
arising out of or based upon the Company’s failure to
perform its obligations under Section 5(a) of this
Agreement.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under
subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the failure
to notify the indemnifying party shall not relieve it from any
liability that it may have under subsection (a) or
(b) above except to the extent that it has been materially
prejudiced (through the forfeiture of rights or defenses) by
such failure; and provided further that the failure to notify
the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party otherwise than under
subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and,
to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice
from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the
defense thereof other than reasonable
13
costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified
party unless such settlement includes (i) an unconditional
release of such indemnified party from all liability on any
claims that are the subject matter of such action and
(ii) does not include a statement as to or an admission of
fault, culpability or failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this
Section 7 is unavailable or insufficient to hold harmless
an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company and the Guarantors on the one hand and
the Purchaser on the other from the offering of the Offered
Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also
the relative fault of the Company and the Guarantors on the one
hand and the Purchaser on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company
and the Guarantors on the one hand and the Purchaser on the
other shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses)
received by the Company bear to the total discounts and
commissions received by the Purchaser from the Company under
this Agreement. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information
supplied by the Company or any of the Guarantors on the one hand
or the Purchaser on the other hand and the parties’
relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or
defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this
subsection (d), the Purchaser shall not be required to
contribute any amount in excess of the amount by which the total
discounts, fees and commissions received by the Purchaser
exceeds the amount of any damages which the Purchaser has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
(e) The obligations of the Company and the Guarantors under
this Section 7 shall be in addition to any liability which
the Company and the Guarantors may otherwise have and shall
extend, upon the same terms and conditions, to each person, if
any, who controls the Purchaser within the meaning of the
Securities Act or the Exchange Act; and the obligations of the
Purchaser under this Section 7 shall be in addition to any
liability which the Purchaser may otherwise have and shall
extend, upon the same terms and conditions, to each person, if
any, who controls the Company or any Guarantor within the
meaning of the Securities Act or the Exchange Act.
8. Survival of Certain Representations and
Obligations. The respective indemnities, agreements,
representations, warranties and other statements of the Company
and the Guarantors and their respective officers and of the
Purchaser set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by
or on behalf of the Purchaser, the Company, any Guarantor or any
of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment
for the Offered Securities. If for any reason the purchase of
the Offered Securities by the Purchaser is not consummated, the
Company and the Guarantors shall remain responsible for the
expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company,
the Guarantors and the Purchaser pursuant to Section 7
shall remain in effect. If the purchase of the Offered
Securities by the Purchaser is not consummated for any reason
other than solely because of the occurrence of any event
specified in clause (iii), (iv), (v), (vi) or
(vii) of Section 6(b), the Company and the Guarantors
will reimburse the Purchaser for all out of pocket expenses
14
(including fees and disbursements of counsel) reasonably
incurred by it in connection with the offering of the Offered
Securities.
9. Notices. All communications hereunder will be in
writing and, if sent to the Purchaser, will be mailed, delivered
or telegraphed and confirmed to the Purchaser at Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Transactions
Advisory Group, or, if sent to the Company or any Guarantor,
will be mailed, delivered or telegraphed and confirmed to them
c/o Dollar Financial Group, Inc., 0000 Xxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxx, 00000, Attention: General Counsel.
10. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the controlling persons referred to in
Section 7, and no other person will have any right or
obligation hereunder, except that holders of Offered Securities
shall be entitled to enforce the agreements for their benefit
contained in the second sentence of Section 5(b) hereof
against the Company as if such holders were parties thereto.
11. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be
an original, but all such counterparts shall together constitute
one and the same Agreement.
12. Applicable Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the
State of New York without regard to principles of conflicts of
laws.
Each of the Company and the Guarantors hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in
the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
15
If the foregoing is in accordance with the Purchaser’s
understanding of our agreement, kindly sign and return to us one
of the counterparts hereof, whereupon it will become a binding
agreement between the Company, the Guarantors and the Purchaser
in accordance with its terms.
|
|
| |
Very truly yours, |
| |
| |
Dollar Financial Group,
Inc.
|
|
|
| |
Any Kind Check Cashing
Centers, Inc.
|
|
|
| |
Cash Unlimited of Arizona,
Inc.
|
16
|
|
| |
Check Mart of Louisiana,
Inc.
|
|
|
| |
Check Mart of New Mexico,
Inc.
|
|
|
| |
Check Mart of
Pennsylvania, Inc.
|
|
|
| |
Check Mart of Texas, Inc.
|
|
|
| |
Check Mart of Wisconsin,
Inc.
|
17
|
|
| |
Dollar Financial Insurance
Corp.
|
|
|
| |
Financial Exchange Company
of Ohio, Inc.
|
18
|
|
| |
Financial Exchange Company
of
Pennsylvania, Inc.
|
|
|
| |
Financial Exchange Company
of
|
| |
Pittsburgh, Inc.
|
|
|
| |
Financial Exchange Company
of Virginia, Inc.
|
|
|
| |
Loan Mart of Oklahoma, Inc.
|
|
|
| |
Monetary Management
Corporation of Pennsylvania
|
19
|
|
| |
Monetary Management of
California, Inc.
|
|
|
| |
Monetary Management of
Maryland, Inc.
|
|
|
| |
Monetary Management of New
York, Inc.
|
20
|
|
| |
Pacific Ring Enterprises,
Inc.
|
|
|
|
| |
Title: |
Executive Vice President |
|
|
|
The foregoing Purchase Agreement is hereby confirmed and
accepted as of the date first above written |
|
| |
|
Credit Suisse First Boston
LLC
|
|
21
