National Money Mart Company 103/8% Senior Notes due 2016 PURCHASE AGREEMENT
Exhibit 10.1
EXECUTION COPY
$600,000,000
National Money Mart Company
103/8% Senior Notes due 2016
December 10, 2009
Credit Suisse Securities (USA) LLC
▇▇▇▇▇ FARGO SECURITIES, LLC,
As Representatives of the Several Purchasers,
c/o Credit Suisse Securities (USA) LLC
Eleven Madison Avenue,
New York, N.Y. 10010-3629
▇▇▇▇▇ FARGO SECURITIES, LLC,
As Representatives of the Several Purchasers,
c/o Credit Suisse Securities (USA) LLC
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. National Money Mart Company, a Canadian corporation (the “Company”), agrees
with the several initial purchasers named in Schedule A hereto (the “Purchasers”), subject
to the terms and conditions stated herein, to issue and sell to the several Purchasers
U.S.$600,000,000 principal amount of
its 103/8% Senior Notes due 2016 (“Offered Securities”) to be
issued under an indenture to be dated as of the Closing Date (the “Indenture”), among the Company,
Dollar Financial Corp., a Delaware corporation (“Holdings”), the Subsidiary Guarantors (as defined
below) and U.S. Bank National Association, as trustee (the “Trustee”). The Offered Securities and
the Exchange Securities (as defined in the Registration Rights Agreement) will be unconditionally
guaranteed as to the payment of principal and interest by Holdings and the subsidiaries listed on
Schedule B hereto (the “Subsidiary Guarantors”) and certain subsequently acquired or
organized subsidiaries, including Military Financial Services, LLC, a Delaware limited liability
company (“MFS”, and the acquisition of MFS, the “DFS Acquisition”), and certain of its subsidiaries
listed on Schedule B-1 hereto (the “MFS Guarantors”, and together with the Subsidiary
Guarantors and Holdings, the “Guarantors”, and such guarantees, the “Guarantees”). Credit Suisse
Securities (USA) LLC (“Credit Suisse”) and ▇▇▇▇▇ Fargo Securities, LLC have agreed to act as the
representatives of the several Purchasers (the “Representatives”) in connection with the offering
and sale of the Offered Securities.
The holders of the Offered Securities will be entitled to the benefits of a Registration
Rights Agreement to be dated as of the Closing Date among the Company, each Guarantor and the
Purchasers (the “Registration Rights Agreement”), pursuant to which the Company and the Guarantors
agree to file a registration statement with the Commission registering the resale of the Offered
Securities and the related Guarantees under the Securities Act.
This Agreement, the Guarantees, the Offered Securities, the Indenture and the Registration
Rights Agreement are hereinafter sometimes referred to collectively as the “Operative Documents.”
The issuance and sale of the Offered Securities, the issuance of the Guarantees and the use of
proceeds therefrom described in the General Disclosure Package and the Final Offering Circular are
collectively referred to as the “Transactions.”
Each of the Company and the Guarantors, jointly and severally, hereby agrees with the several
Purchasers as follows:
2. Representations and Warranties of the Company and each Guarantor. Each of the Company and
the Guarantors, represents and warrants to, and agrees with, the several Purchasers that:
(a) Offering Circulars; Certain Defined Terms. The Company has prepared or will
prepare a Preliminary Offering Circular and a Final Offering Circular.
For purposes of this Agreement:
“Applicable Time” means 5:04 p.m. (New York City time) on the date of this Agreement.
“Closing Date” has the meaning set forth in Section 3 hereof.
“Commission” means the United States Securities and Exchange Commission.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.
“Final Offering Circular” means the final offering circular relating to the Offered Securities
to be offered by the Purchasers that discloses the offering price and other final terms of the
Offered Securities and is dated as of the date of this Agreement (even if finalized and issued
subsequent to the date of this Agreement).
“Free Writing Communication” means a written communication (as such term is defined in
Rule 405) that constitutes an offer to sell or a solicitation of an offer to buy the Offered
Securities and is made by means other than the Preliminary Offering Circular or the Final Offering
Circular.
“General Disclosure Package” means the Preliminary Offering Circular together with any Issuer
Free Writing Communication existing at the Applicable Time and the information in which is intended
for general distribution to prospective investors, as evidenced by its being specified in
Schedule C hereto.
“Issuer Free Writing Communication” means a Free Writing Communication prepared by or on
behalf of the Company or any Guarantor, used or referred to by the Company or any Guarantor or
containing a description of the final terms of the Offered Securities or of their offering, in the
form retained in the Company’s records.
“Preliminary Offering Circular” means the preliminary offering circular, dated
December 10, 2009, relating to the Offered Securities to be offered by the Purchasers.
“Rules and Regulations” means the rules and regulations of the Commission.
“Securities Act” means the United States Securities Act of 1933, as amended.
“Securities Laws” means, collectively, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (“▇▇▇▇▇▇▇▇-▇▇▇▇▇”), the
Securities Act, the Exchange Act, the Rules and Regulations, the auditing principles, rules,
standards and practices applicable to auditors of “issuers” (as defined in ▇▇▇▇▇▇▇▇-▇▇▇▇▇)
promulgated or approved by the Public Company Accounting Oversight Board and, as applicable, the
rules of the New York Stock Exchange and the NASDAQ Stock Market (“Exchange Rules”).
“Supplemental Marketing Material” means any Issuer Free Writing Communication other than any
Issuer Free Writing Communication specified in Schedule D hereto. Supplemental
Marketing Materials include, but are not limited to, the electronic Bloomberg roadshow slides and
the accompanying audio recording.
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Unless otherwise specified, a reference to a “rule” is to the indicated rule under the
Securities Act.
(b) Disclosure. As of the date of the Final Offering Circular, the Final Offering
Circular does not, and as of the Closing Date, the Final Offering Circular will 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. At the Applicable Time, and as of the Closing Date, neither (i)
the General Disclosure Package, nor (ii) any individual Supplemental Marketing Material,
when considered together with the General Disclosure Package, included, or will include,
any untrue statement of a material fact or omitted, or will 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 two sentences do not apply to
statements in or omissions from the Preliminary or Final Offering Circular, the General
Disclosure Package or any Supplemental Marketing Material based upon written information
furnished to the Company by the Purchasers or the Representatives specifically for use
therein, it being understood and agreed that the only such information is that described as
such in Section 8(b) hereof. Holdings’ 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 Holdings with the Commission or sent to stockholders pursuant to the
Exchange Act and incorporated by reference in the Preliminary Offering Circular or Final
Offering Circular 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.
(c) Good Standing of the Company and the Guarantors. The Company and each Guarantor
has been duly incorporated or organized and is existing and 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
General Disclosure Package; and the Company and each Guarantor 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 be so qualified would not result in a material adverse effect
on the condition (financial or otherwise), results of operations, business, properties or
prospects of the Company, the Guarantors and their respective subsidiaries taken as a whole
(“Material Adverse Effect”).
(d) Subsidiaries. Each subsidiary of the Company and each subsidiary of the
Guarantors has been duly incorporated or organized and is existing and 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 General Disclosure Package; and each subsidiary of the Company and each subsidiary
of the Guarantors 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 be so
qualified would not result in a Material Adverse Effect; all of the issued and outstanding
capital stock of each subsidiary of the Company and each subsidiary of the Guarantors has
been duly authorized and validly issued and is fully paid and nonassessable; and, except as
described in the General Disclosure Package and the Final Offering Circular, the capital
stock of each subsidiary owned by the Company or each Guarantor, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(e) Corporate Structure. The entities listed on Schedule B hereto are the
only subsidiaries, direct or indirect, of Holdings.
(f) Indenture. The Indenture has been duly authorized by the Company and the
Guarantors; the Offered Securities have been duly authorized by the Company; and when the
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Indenture is executed and delivered by the Trustee and the Offered Securities are
authenticated, issued, delivered and paid for pursuant to this Agreement on the Closing
Date, the Indenture will have been duly executed and delivered by the Company and the
Guarantors, such Offered Securities will have been duly executed, authenticated, issued and
delivered by the Company, will conform to the information in the General Disclosure Package
and will conform to the description of such Offered Securities contained in the Final
Offering Circular and the Indenture and such Offered Securities will constitute valid and
legally binding obligations of the Company and each Guarantor, respectively, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles and entitled to the benefits
provided by the Indenture.
(g) Trust Indenture Act. On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”), and the rules and regulations of the Commission applicable to an
indenture which is qualified thereunder.
(h) No Finder’s Fee. Except as disclosed in the General Disclosure Package, there
are no contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Purchaser for a brokerage
commission, finder’s fee or other like payment.
(i) Registration Rights Agreement. The Registration Rights Agreement has been duly
authorized by the Company and each Guarantor; and, when the Offered Securities are
delivered and paid for pursuant to this Agreement on the Closing Date, the Registration
Rights Agreement will have been duly executed and delivered and, when executed and
delivered by the Purchasers, the Registration Rights Agreement and such Offered Securities
will constitute valid and legally binding obligations of the Company and the Guarantors,
enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors’ rights and to general equity principles.
(j) Exchange Securities. On the Closing Date, the Exchange Securities (as defined in
the Registration Rights Agreement) (including the related Guarantees) will have been duly
authorized by the Company and the Guarantors; and when the Exchange Securities are issued,
executed and authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Exchange Securities will be entitled to the benefits of the Indenture and
will be the valid and legally binding obligations of the Company and the Guarantors,
enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors’ rights and to general equity principles.
(k) Guarantee. The Guarantee to be endorsed on the Offered Securities by each
Guarantor has been duly authorized by such Guarantor; and, when the Offered Securities are
delivered and paid for pursuant to this Agreement on the Closing Date and issued, executed
and authenticated in accordance with the terms of the Indenture, the Guarantee of each
Guarantor endorsed thereon will have been duly executed and delivered by each such
Guarantor, will conform to the description thereof contained in the Final Offering Circular
and will constitute valid and legally binding obligations of such Guarantor, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles. The Guarantee to be endorsed
on the Exchange Securities by each Guarantor has been duly authorized by such Guarantor;
and, when issued, will have been duly executed and delivered by each such Guarantor and
will conform to the description thereof contained in the Final Offering Circular. When the
Exchange Securities have been issued, executed and authenticated in
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accordance with the terms of the Exchange Offer and the Indenture, the Guarantee of each
Guarantor endorsed thereon will constitute valid and legally binding obligations of such
Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity principles.
(l) No Registration Rights. Except as described in the General Disclosure Package,
there are no contracts, agreements or understandings between the Company or any Guarantor
and any person granting such person the right to require the Company or such Guarantor to
file a registration statement under the Securities Act with respect to any securities of
the Company or such Guarantor or to require the Company or such Guarantor to include such
securities with the Securities and Guarantees registered pursuant to any Registration
Statement.
(m) Absence of Further Requirements. No consent, approval, authorization, or order
of, or filing or registration with, any person (including any governmental agency or body
or any court) is required for the consummation of the transactions contemplated by this
Agreement, the Indenture and the Registration Rights Agreement in connection with the
offering, issuance and sale of the Offered Securities and the Guarantees by the Company and
the Guarantors, except as disclosed in the General Disclosure Package and the Final
Offering Circular and except for the order of the Commission declaring effective the
Exchange Offer Registration Statement or, if required, the Shelf Registration Statement
(each as defined in the Registration Rights Agreement).
(n) Title to Property. Except as disclosed in the General Disclosure Package, each
of the Company, the Guarantors and their respective subsidiaries have good and marketable
title to all real properties and all other properties and assets owned by them, in each
case free from liens, charges, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made thereof by them; and
except as disclosed in the General Disclosure Package, the Company and the Guarantors and
their respective subsidiaries hold any leased real or personal property under valid and
enforceable leases with no terms or provisions that would materially interfere with the use
made or to be made thereof by them.
(o) Absence of Defaults and Conflicts Resulting from Transaction. Neither the
execution, delivery and performance of the Indenture, this Agreement and the Registration
Rights Agreement, nor the issuance and sale of the Offered Securities and Guarantees and
compliance with the terms and provisions thereof by the Company or the Guarantors, will
result in a breach or violation of any of the terms and provisions of, or constitute a
default or a Debt Repayment Triggering Event (as defined below) under, or result in the
imposition of any lien, charge or encumbrance upon any property or assets of the Company,
the Guarantors or any of their respective subsidiaries pursuant to, the charter or by-laws
(or similar organizational documents) of the Company, the Guarantors or any of their
respective subsidiaries, any statute, rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction over the Company, the
Guarantors or any of their respective subsidiaries or any of their properties, or any
agreement or instrument to which the Company, the Guarantors or any of their respective
subsidiaries is a party or by which the Company, the Guarantors or any of their respective
subsidiaries is bound or to which any of the properties of the Company, the Guarantors or
any of their respective subsidiaries is subject; a “Debt Repayment Triggering Event” means
any event or condition that gives, or with the giving of notice or lapse of time would
give, the holder of any note, debenture, or other evidence of indebtedness of the Company,
the Guarantors or any of their respective subsidiaries (or any person acting on such
holder’s behalf) the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company, the Guarantors or any of their respective
subsidiaries.
(p) Absence of Existing Defaults and Conflicts. None of the Company, the Guarantors
or their respective subsidiaries is in violation of its respective charter or by-laws (or
similar
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organizational documents) or in default (or with the giving of notice or lapse of time
would be in default) under any existing obligation agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other agreement or
instrument to which any of them is a party or by which any of them is bound or to which any
of the properties of any of them is subject, except such defaults that would not,
individually or in the aggregate, result in a Material Adverse Effect..
(q) Authorization of Agreement. This Agreement has been duly authorized, executed
and delivered by the Company and the Guarantors.
(r) Possession of Licenses and Permits. The Company, the Guarantors and their
respective subsidiaries possess, and are in compliance with the terms of, all adequate
certificates, authorizations, franchises, licenses and permits (“Licenses”) necessary or
material to the conduct of the business now conducted or proposed in the General Disclosure
Package to be conducted by them and have not received any notice of proceedings relating to
the revocation or modification of any Licenses that, if determined adversely to the
Company, the Guarantors or any of their respective subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
(s) Absence of Labor Dispute. No labor dispute with the employees of the Company,
the Guarantors or any of their respective subsidiaries exists or, to the knowledge of the
Company or the Guarantors, is imminent that could have a Material Adverse Effect.
(t) Possession of Intellectual Property. The Company, the Guarantors and their
respective subsidiaries own, possess (including by license or other agreement) 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, the Guarantors or any of
their respective subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(u) Environmental Laws. Except as disclosed in the General Disclosure Package, none
of the Company, the Guarantors or their respective subsidiaries is in violation of any
statute, any rule, regulation, decision or order of any governmental agency or body or any
court, domestic or foreign (including common law), 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 the Company is not
aware of any pending investigation which might lead to such a claim.
(v) Accurate Disclosure. The statements in the General Disclosure Package and the
Final Offering Circular under the headings “Offering Circular
Summary—Regulation”, “Certain
Canadian Federal Income Tax Considerations”, “Certain Material United States Federal Income
Tax Consideration”, “Description of Other Indebtedness” and “Description of the Notes”
insofar as such statements summarize legal matters, agreements, documents or proceedings
discussed therein, are accurate and fair summaries of such legal matters, agreements,
documents or proceedings and present the information required to be shown pursuant to
Regulation S-K.
(w) Absence of Manipulation. None of the Company, the Guarantors and their
respective affiliates has, either alone or with one or more other persons, bid for or
purchased for any account in which the Company, the Guarantors or any of their respective
affiliates had a
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beneficial interest any Offered Securities or attempt to induce any person to purchase any
Offered Securities.
(x) Statistical and Market-Related Data. Any third-party statistical and
market-related data included in the General Disclosure Package or the Final Offering
Circular are based on or derived from sources that the Company and the Guarantors believe
in good faith to be reliable and accurate in all material respects.
(y) Internal Controls and Compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Except as disclosed
in the General Disclosure Package, Holdings and its Board of Directors (the “Board”) are in
compliance with ▇▇▇▇▇▇▇▇-▇▇▇▇▇ and all applicable Exchange Rules. The Company and each
Guarantor maintains a system of internal controls, including, but not limited to,
disclosure controls and procedures, internal controls over accounting matters and financial
reporting, an internal audit function, and legal and regulatory compliance controls
(collectively, “Internal Controls”), that comply with the Securities Laws and are
sufficient to provide reasonable assurances that (i) transactions are executed in
accordance with management’s general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with U.S.
Generally Accepted Accounting Principles and to maintain accountability for assets, (iii)
access to assets is permitted only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences. The Internal Controls are, or, upon consummation of the offering of the
Offered Securities will be, overseen by the Audit Committee (the “Audit Committee”) of the
Board in accordance with Exchange Rules. Neither the Company nor any Guarantor has publicly
disclosed or reported to the Audit Committee or the Board, and within the next 90
days neither the Company nor any Guarantor reasonably expects to publicly disclose or
report to the Audit Committee or the Board, a significant deficiency, material weakness,
change in Internal Controls or fraud involving management or other employees who have a
significant role in Internal Controls (each, an “Internal Control Event”), any violation
of, or failure to comply with, the Securities Laws, or any matter which, if determined
adversely, would have a Material Adverse Effect.
(z) Absence of Accounting Issues. A member of the Audit Committee has confirmed to
the Chief Executive Officer, Chief Financial Officer or General Counsel of Holdings that,
as of the date of, and except as set forth in, the General Disclosure Package and the Final
Offering Circular, the Audit Committee is not reviewing or investigating, and neither the
Company’s and the Guarantors’ independent auditors nor their internal auditors have
recommended that the Audit Committee review or investigate, (i) adding to, deleting,
changing the application of, or changing the Company’s or the Guarantors’ disclosure with
respect to, any of the Company’s or the Guarantors’ material accounting policies; (ii) any
matter which could result in a restatement of the Company’s or the Guarantors’ financial
statements for any annual or interim period during the current or prior three fiscal years;
or (iii) any Internal Control Event.
(aa) Litigation. Except as disclosed in the General Disclosure Package, there are no
pending, or to the Company’s or the Guarantors’ knowledge, threatened actions, suits or
proceedings (including any inquiries or investigations by any court or governmental agency
or body, domestic or foreign) against or affecting the Company, the Guarantors, any of
their respective subsidiaries or any of their respective properties that, if determined
adversely to the Company, the Guarantors or any of their respective subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company or the Guarantors to perform their obligations
under the Indenture, this Agreement, or the Registration Rights Agreement, or which are
otherwise material in the context of the sale of the Offered Securities and the Guarantees;
and no such actions, suits or proceedings (including any inquiries or investigations by any
court or governmental agency or body, domestic or foreign) are threatened or, to the
Company’s or the Guarantors’ knowledge, contemplated.
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(bb) Financial Statements. The consolidated historical financial statements included
in the General Disclosure Package present fairly the financial position of the
Company, the Guarantors and their respective consolidated subsidiaries as of the dates
shown and their results of operations and cash flows for the periods shown, and, except as
otherwise disclosed in the General Disclosure Package or the Final Offering Circular, such
financial statements have been prepared in conformity with GAAP applied on a consistent
basis throughout the periods presented; provided, however, that those financial statements
that are unaudited are subject to year-end adjustments and do not contain all footnotes
required under GAAP; and the assumptions used in preparing the pro forma financial
information included in the General Disclosure Package provide a reasonable
basis for presenting the significant effects directly attributable to the transactions or
events described therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect the proper application of
those adjustments to the corresponding historical financial statement amounts.
(cc) No Material Adverse Change in Business. Except as disclosed in the General
Disclosure Package, since the end of the period covered by the latest audited financial
statements included in the General Disclosure Package (i) there has been no change, nor any
development or event involving a prospective change, in the condition (financial or
otherwise), results of operations, business or properties of the Company, the Guarantors
and their respective subsidiaries, taken as a whole, that is material and adverse;
(ii) there has been no dividend or distribution of any kind declared, paid or made
by Holdings on any class of its capital stock; and (iii) there has been no material adverse
change in the capital stock, short-term indebtedness, long-term indebtedness, net current
assets or net assets of the Company, the Guarantors and their respective subsidiaries.
(dd) Investment Company Act. Neither the Company nor any Guarantor 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 (the “Investment Company Act”); and neither the Company nor any Guarantor is and,
after giving effect to the offering and sale of the Offered Securities and the application
of the proceeds thereof as described in the General Disclosure Package, will not be an
“investment company” as defined in the Investment Company Act of 1940, as amended.
(ee) Regulations T, U, X. Neither the Company nor any Guarantor nor any of their
respective subsidiaries nor any agent thereof acting on their behalf has taken, and none of
them will take, any action that might cause this Agreement or the issuance or sale of the
Offered Securities to violate Regulation T, Regulation U or Regulation X of the Board of
Governors of the Federal Reserve System.
(ff) Ratings. No “nationally recognized statistical rating organization” as such
term is defined for purposes of Rule 436(g)(2) (i) has imposed (or has informed the Company
or any Guarantor that it is considering imposing) any condition (financial or otherwise) on
the Company’s or any Guarantor’s retaining any rating assigned to the Company or any
Guarantor or any securities of the Company or any Guarantor or (ii) has indicated to the
Company or any Guarantor that it is considering any of the actions described in Section
7(c)(ii) hereof.
(gg) Class of Securities Not Listed. No securities of the same class (within the
meaning of Rule 144A(d)(3)) as the Offered Securities are listed on any national securities
exchange registered under Section 6 of the Exchange Act or quoted in a U.S. automated
inter-dealer quotation system.
(hh) No Registration. The offer and sale of the Offered Securities 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 and Regulation S thereunder (“Regulation
S”),
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and it is not necessary to qualify an indenture in respect of the Offered Securities under
the Trust Indenture Act.
(ii) No General Solicitation; No Directed Selling Efforts. Neither the Company, nor
any Guarantor, nor any of their respective affiliates, nor any person acting on its or
their behalf (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 Regulation 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) or (B) with respect to any such securities
sold in reliance on Rule 903 of Regulation S under the Securities Act, by means of any
directed selling efforts within the meaning of Rule 902(c) of Regulation S. The Company,
the Guarantors, their respective affiliates and any person acting on its or their behalf
have complied and will comply with the offering restrictions requirement of Regulation S.
Neither the Company nor any Guarantor has entered and neither the Company nor any Guarantor
will enter into any contractual arrangement with respect to the distribution of the Offered
Securities except for this Agreement. For purposes of this Section 2(ii), neither
Representative nor any Purchaser shall be considered a person acting on behalf of the
Company or any Guarantor.
(jj) Reporting Status. Holdings is subject to Section 13 or 15(d) of the Exchange
Act.
(kk) Certain Laws. Each of the Company, the Guarantors, their respective
subsidiaries and any of their respective affiliates or, to the knowledge of the Company and
the Guarantors, any of their respective officers, directors, supervisors, managers, agents
or employees, has not violated, and its participation in the offering will not violate, and
each of the Company, the Guarantors, their respective subsidiaries and affiliates has
instituted and maintains policies and procedures designed to ensure continued compliance
with each of the following laws: (i) anti-bribery laws, including but not limited to, any
applicable law, rule or regulation of any locality, including but not limited to any law,
rule, or regulation promulgated to implement the OECD Convention on Combating Bribery of
Foreign Public Officials in International Business Transactions, signed December 17, 1997,
including the U.S. Foreign Corrupt Practices Act of 1977 or any other law, rule or
regulation of similar purpose and scope, (ii) anti-money laundering laws, including but not
limited to, applicable federal, state, international, foreign or other laws, regulations or
government guidance regarding anti-money laundering, including, without limitation, Title
18 U.S. Code section 1956 and 1957, the Patriot Act, the Bank Secrecy Act and international
anti-money laundering principals or procedures of an intergovernmental group or
organization, such as the Financial Action Task Force on Money Laundering, of which the
United States is a member and with which designation the United States representative to
the group or organization continues to concur, all as amended, and any Executive order,
directive or regulation pursuant to the authority of any of the foregoing, or any orders or
licenses issued thereunder or (iii) laws and regulations imposing U.S. economic sanction
measures, including, but not limited to, the International Emergency Economic Powers Act,
the Trading with the Enemy Act, the United Nations Participation Act, and the Syria
Accountability and Lebanese Sovereignty Act, all as amended, and any Executive Order,
directive or regulation pursuant to the authority of any of the foregoing, including the
regulations of the United States Treasury Department set forth under 31 CFR, Subtitle B,
Chapter V, as amended, or any orders or licenses issued thereunder.
(ll) Taxes. The Company, the Guarantor and their respective subsidiaries have filed
all federal, state, local and non-U.S. tax returns that are required to be filed or have
requested extensions thereof (except in any case in which the failure so to file would not
have a Material Adverse Effect); and, except as set forth in the General Disclosure Package
or the Final Offering Circular, the Company, the Guarantors and their respective
subsidiaries have paid all taxes (including any assessments, fines or penalties) required
to be paid by them to the extent any of the foregoing is due and payable, except for any
such taxes, assessments, fines or penalties currently
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being contested in good faith or as would not, individually or in the aggregate, have
a Material Adverse Effect.
(mm) Insurance. The Company, the Guarantors and their respective subsidiaries are
insured by insurers with appropriately rated claims-paying abilities against such losses
and risks and in such amounts as are prudent and customary for the businesses in which they
are engaged; all policies of insurance insuring the Company, the Guarantors and their
respective subsidiaries or their respective businesses, assets, employees, officers and
directors are in full force and effect; the Company, the Guarantors and their respective
subsidiaries are in compliance with the terms of such policies and instruments in all
material respects; and there are no claims by the Company, the Guarantors and their
respective subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights clause; neither the
Company, the Guarantors nor their respective subsidiaries have been refused any insurance
coverage sought or applied for within the two year period prior to the date hereof; and
neither the Company, the Guarantors nor their respective subsidiaries have any reason to
believe that they will not be able to renew their existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue their businesses at a cost that would not have a Material Adverse
Effect, except as set forth in or contemplated in the General Disclosure Package.
The Company and the Guarantors acknowledge that the Purchasers and, for purposes of the opinions to
be delivered to the Purchasers pursuant to Section 7 of this Agreement, counsel to the Company and
the Guarantors and counsel to the Purchasers will rely upon the accuracy and truth of the foregoing
representations and the Company and the Guarantors hereby consent to such reliance.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions set forth herein, the Company
agrees to sell to the several Purchasers, and each of the Purchasers agrees, severally and not
jointly, to purchase from the Company, at a purchase price of 97.398% of the principal amount
thereof plus accrued interest, if any, from December 23, 2009 to the Closing Date (as hereinafter
defined), the respective principal amounts of Securities set forth opposite the names of the
several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the Offered Securities to be
offered and sold by the Purchasers 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 “Offered Regulation S Global Securities”), which will be deposited with the Trustee, as
custodian for The Depository Trust Company (“DTC”), and registered in the name of Cede & Co., as
nominee for DTC. The Company will deliver against payment of the purchase price the Offered
Securities to be purchased by each Purchaser hereunder and to be offered and sold by each Purchaser
in reliance on Rule 144A (the “144A Securities”) in the form of one permanent global security in
definitive form without interest coupons (the “Restricted Global Securities”), which will be
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 shall include the legend
regarding restrictions on transfer set forth under “Transfer Restrictions” in the Final Offering
Circular. Interests in any permanent global Securities will be held only in book-entry form
through DTC, as the case may be, except in the limited circumstances described in the Final
Offering Circular.
Payment for the Regulation S Securities and the 144A Securities shall be made by the
Purchasers in Federal (same day) funds by wire transfer to an account at a bank acceptable to
Credit Suisse drawn to the order of the Company, at the office of Cravath, Swaine & ▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 9:00 A.M., New York City time, on December 23, 2009, or
at such other time not later than seven full business days thereafter as Credit Suisse 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 representing all of
the Regulation S Securities and (ii) the Restricted Global
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Securities representing all of the Offered 144A Securities. The Regulation S Global Securities and
the Restricted Global Securities will be made available for checking at the above office at least
24 hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the Company and the
Guarantors that it is a “Qualified Institutional Buyer” within the meaning of Rule 144A and
an “accredited investor” within the meaning of Regulation D under the Securities Act.
(b) Each Purchaser severally 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.
Each Purchaser severally 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 40 days after the later of the commencement of the
offering and the Closing Date, only in accordance with Rule 903 or Rule 144A. Accordingly,
neither such 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 such 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. Each Purchaser severally agrees that, at or prior to confirmation of sale of
the Offered Securities, other than a sale pursuant to Rule 144A, such 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) Each Purchaser severally 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 for any such arrangements with the other
Purchasers or affiliates of the other Purchasers or with the prior written consent of the
Company and the Guarantors.
(d) Each Purchaser severally 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), 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. Each Purchaser severally 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.
-11-
(e) In relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member State”), each of the
Purchasers severally represents and agrees that with effect from and including the date on
which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant
Implementation Date”) it has not made and will not make an offer of Offered Securities to
the public in that Relevant Member State prior to the publication of a prospectus in
relation to the Offered Securities which has been approved by the competent authority in
that Relevant Member State or, where appropriate, approved in another Relevant Member State
and notified to the competent authority in that Relevant Member State, all in accordance
with the Prospectus Directive, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of Offered Securities to the public in that
Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate in the
financial markets or, if not so authorized or regulated, whose corporate purpose is
solely to invest in securities;
(ii) to any legal entity which has two or more of (A) an average of at least
250 employees during the last financial year; (B) a total balance sheet of more
than €43,000,000 and (C) an annual net turnover of more
than €50,000,000, as
shown in its last annual or consolidated accounts; or
(iii) in any other circumstances which do not require the publication by the
Company of a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of this provision, the expression an “offer of Offered Securities to
the public” in relation to any Offered Securities in any Relevant Member State means the
communication in any form and by any means of sufficient information on the terms of the
offer and the Offered Securities to be offered so as to enable an investor to decide to
purchase or subscribe the Offered Securities, as the same may be varied in that Member
State by any measure implementing the Prospectus Directive in that Member State and the
expression “Prospectus Directive” means Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State.
(f) Each of the Purchasers severally represents and agrees that:
(i) (A) it is a person whose ordinary activities involve it in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of its business and (B) it has not offered or sold and will not offer or
sell the Offered Securities other than to persons whose ordinary activities involve
them in acquiring, holding, managing or disposing of investments (as principal or
as agent) for the purposes of their businesses or who it is reasonable to expect
will acquire, hold, manage or dispose of investments (as principal or agent) for
the purposes of their businesses where the issue of the Offered Securities would
otherwise constitute a contravention of Section 19 of the Financial Services and
Markets ▇▇▇ ▇▇▇▇ (the “FSMA”) by the Company;
(ii) it has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement to engage in
investment activity (within the meaning of Section 21 of the FSMA) received by it
in connection with the issue or sale of the Offered Securities in circumstances in
which Section 21(1) of the FSMA does not apply to the Company or 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.
-12-
5. Certain Agreements of the Company and each Guarantor. The Company and each Guarantor
agrees with the Purchasers that:
(a) Amendments and Supplements to Offering Circulars. The Company and the Guarantors
will promptly advise the Representatives of any proposal to amend or supplement the
Preliminary or Final Offering Circular and will not effect such amendment or
supplementation without the Representatives’ consent, which consent will not be
unreasonably withheld. If, at any time prior to the completion of the resale of the Offered
Securities by the Purchasers, there occurs an event or development as a result of which any
document included in the Preliminary Offering Circular or Final Offering Circular, the
General Disclosure Package or any Supplemental Marketing Material, if republished
immediately following such event or development, included or would include an untrue
statement of a material fact or omitted or would 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, or if it is necessary at any such time to amend or supplement
the Preliminary Offering Circular or Final Offering Circular, the General Disclosure
Package or any Supplemental Marketing Material to comply with any applicable law, the
Company and the Guarantors promptly will notify the Representatives of such event and
promptly will prepare and furnish, at its own expense, to the Purchasers and the dealers
and to any other dealers at the request of the Representatives, an amendment or supplement
which will correct such statement or omission. Neither the Representatives’ consent to, nor
the Purchasers’ delivery to offerees or investors of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 7.
(b) Furnishing of Offering Circulars. The Company and the Guarantors will furnish to
the Representatives copies of the Preliminary Offering Circular, each other document
comprising a part of the General Disclosure Package, the Final Offering Circular, all
amendments and supplements to such documents and each item of Supplemental Marketing
Material, in each case as soon as available and in such quantities as the Representative
requests. At any time when the Company is not subject to Section 13 or 15(d), the Company
and the Guarantors will promptly furnish or cause to be furnished to the Representatives
(and, upon request, to each of the other Purchasers) and, upon request of holders and
prospective purchasers of the Offered Securities, to such holders and purchasers, copies of
the information required to be delivered to holders and prospective purchasers of the
Offered Securities pursuant to Rule 144A(d)(4) (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 will pay the expenses of printing and distributing to the
Purchasers all such documents.
(c) Blue Sky Qualifications. The Company and the Guarantors 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
Representatives designate and will continue such qualifications in effect so long as
required for the resale of the Offered Securities by the Purchasers, provided that neither
the Company nor any Guarantor will be required to qualify as a foreign corporation or to
file a general consent to service of process in any such state or jurisdiction or to
subject itself to taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject.
(d) Reporting Requirements. For so long as the Offered Securities remain
outstanding, the Company and the Guarantors, as applicable, will furnish to the
Representatives and, upon request, to each of the other Purchasers, as soon as practicable
after the end of each fiscal year, a copy of their respective annual reports to
stockholders for such year; and the Company and each of the Guarantors, as applicable, will
furnish to the Representatives and, upon request, to each of the other Purchasers (i) as
soon as available, a copy of each report, financial statement and any definitive proxy
statement of the Company and each Guarantor, as applicable, furnished to or filed with the
Commission under the Exchange Act or mailed to stockholders and (ii) from time to time,
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such other information concerning the Company and the Guarantors as the Representatives may
reasonably request. However, so long as Holdings, the Company or any Guarantor, as
applicable, is subject to the reporting requirements of either Section 13 or Section 15(d)
of the Exchange Act and is timely filing reports with the Commission on its Electronic Data
Gathering, Analysis and Retrieval system (“▇▇▇▇▇”), it is not required to furnish such
reports or statements to the Purchasers.
(e) Transfer Restrictions. During the period of two years after the Closing Date,
the Company will, upon request, furnish to the Representatives, each of the other
Purchasers and any holder of Offered Securities a copy of the restrictions on transfer
applicable to the Offered Securities.
(f) No Resales by Affiliates. 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)
to, resell any of the Offered Securities that have been reacquired by any of them.
(g) Investment Company. During the period of two years after the Closing Date,
neither the Company nor any Guarantor 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.
(h) Payment of Expenses. The Company and the Guarantors will pay all expenses
incidental to the performance of their respective obligations under this Agreement, the
Indenture and the Registration Rights Agreement, including but not limited to (i) the
reasonable 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 Indenture, the Preliminary Offering Circular, any other documents
comprising any part of the General Disclosure Package, the Final Offering Circular, all
amendments and supplements thereto, each item of Supplemental Marketing Material 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 any advertising approved by
the Company in connection with the issue of the Offered Securities; (iv) any expenses
(including reasonable fees and disbursements of counsel to the Purchasers) incurred in
connection with qualification of the Offered Securities or the Exchange Securities (as
defined in the Registration Rights Agreement) for sale under the laws of such jurisdictions
in the United States and Canada as the Representatives designate and the preparation and
printing of memoranda relating thereto, (v) any fees charged by investment rating agencies
for the rating of the Offered Securities or the Exchange Securities, and (vi) expenses
incurred in distributing the Preliminary Offering Circular, any other documents comprising
any part of the General Disclosure Package, the Final Offering Circular (including any
amendments and supplements thereto) and any Supplemental Marketing Material to the
Purchasers. The Company and the Guarantors will also pay or reimburse the Purchasers (to
the extent incurred by them) for costs and expenses of the Purchasers and the Company’s
officers and employees and any other expenses of the Purchasers, the Company and the
Guarantors relating to investor presentations on any “road show” in connection with the
offering and sale of the Offered Securities including, without limitation, any travel
expenses of the Company’s and the Guarantors’ officers and employees and any other expenses
of the Company and the Guarantors including the chartering of airplanes.
(i) Use of Proceeds. The Company will use the net proceeds received in connection
with this offering in the manner described in the “Use of Proceeds” section of the General
Disclosure Package and, except as disclosed in the General Disclosure Package, the Company
does not intend to use any of the proceeds from the sale of the Offered Securities
hereunder to repay any outstanding debt owed to any affiliate of any Purchaser.
-14-
(j) Absence of Manipulation. In connection with the offering, until the
Representatives shall have notified the Company and the other Purchasers of the completion
of the resale of the Offered Securities, neither the Company, the Guarantors nor any of
their respective affiliates will, either alone or with one or more other persons, bid for
or purchase for any account in which it, the Guarantors or any of their respective
affiliates have a beneficial interest any Offered Securities or attempt to induce any
person to purchase any Offered Securities; and neither the Company, the Guarantors nor any
of their respective affiliates 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.
(k) Restriction on Sale of Securities. For a period of 90 days after the date hereof
(“Lock-Up Period”), neither the Company nor any Guarantor will, directly or
indirectly, take any of the following actions with respect to any United States
dollar-denominated debt securities issued or guaranteed by the Company or such Guarantor
and having a maturity of more than one year from the date of issue (“Lock-Up Securities”):
(i) offer, sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up
Securities, (ii) offer, sell, issue, contract to sell, contract to purchase or grant any
option, right or warrant to purchase Lock-Up Securities, (iii) enter into any swap, hedge
or any other agreement that transfers, in whole or in part, the economic consequences of
ownership of Lock-Up Securities, (iv) establish or increase a put equivalent position or
liquidate or decrease a call equivalent position in Lock-Up Securities within the meaning
of Section 16 of the Exchange Act or (v) file with the Commission a registration statement
under the Securities Act relating to Lock-Up Securities or publicly disclose the intention
to take any such action, without the prior written consent of Credit Suisse, except (y)
exchanges of Holdings’ 2.875% Senior Convertible Notes due 2027 for debt securities of the
Company or any Guarantor convertible into equity securities or (z) filing with the
Commission of an equity or universal shelf registration statement on an appropriate form
under the Securities Act; provided, however, that no Lock-Up Securities registered under
such shelf registration statement may be offered or sold during the Lock-Up Period.
Neither the Company nor any Guarantor will at any time directly or indirectly, take any
action referred to in clauses (i) through (v) above with respect to any securities under
circumstances where such offer, sale, pledge, contract 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.
(l) Actions by MFS and the MFS Guarantors. To the extent that the DFS Acquisition is
consummated on the Closing Date, each of MFS and the MFS Guarantors will execute a
counterpart to this Agreement on the Closing Date substantially in the form attached as
Exhibit G hereto.
6. Free Writing Communications.
(a) Issuer Free Writing Communications. The Company and each Guarantor each
represents and agrees that, unless it obtains the prior consent of the Representatives, and
each Purchaser represents and agrees that, unless it obtains the prior consent of the
Company and the Representatives, it has not made and will not make any offer relating to
the Offered Securities that would constitute an Issuer Free Writing Communication.
(b) Term Sheets. The Company consents to the use by any Purchaser of a Free Writing
Communication that (i) contains only (A) information describing the preliminary terms of
the Offered Securities or their offering or (B) information that describes the final terms
of the Offered Securities or their offering and that is included in or is subsequently
included in the Final Offering Circular, including by means of a pricing term sheet in the
form of Exhibit D-1 to Schedule D hereto, or (ii) does not contain any material information
about the Company or any Guarantor or their respective securities that was provided by or
on behalf of the Company or any Guarantor, it being understood and agreed that the Company
and each Guarantor shall not be responsible to any Purchaser for liability arising from any
inaccuracy in such Free Writing Communications referred
-15-
to in clause (i) or (ii) as compared with the information in the Preliminary Offering
Circular, the Final Offering Circular or the General Disclosure Package.
7. Conditions of the Obligations of the Purchasers. The obligations of the Purchasers to
purchase and pay for the Offered Securities will be subject to the accuracy of the representations
and warranties of the Company and the Guarantors herein (as though made on the Closing Date), to
the accuracy of the statements of officers of the Company and the Guarantors made pursuant to the
provisions hereof, to the performance by the Company and the Guarantors of their obligations
hereunder and to the following additional conditions precedent:
(a) Accountants’ Comfort Letter. The Representatives, on behalf of the Purchasers,
shall have received customary “comfort letters”, dated, respectively, the date hereof on
the General Disclosure Package and the Closing Date on the Final Offering Circular, of
Ernst & Young LLP, in form and substance reasonably satisfactory to the Purchasers
concerning certain financial information with respect to Holdings and its subsidiaries set
forth in the General Disclosure Package and confirming that Ernst & Young LLP is a
registered public accounting firm and independent public accountants within the meaning of
the Securities Laws and substantially in the form of Schedule E hereto (except
that, in any letter dated on the Closing Date, the specified date referred to in
Schedule E hereto shall be a date no more than three days prior to such Closing
Date).
(b) Target Accountants’ Comfort Letter. The Representatives, on behalf of the
Purchasers, shall have received customary “comfort letters”, dated, respectively, the date
hereof on the General Disclosure Package and the Closing Date on the Final Offering
Circular, of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP and McGladrey & ▇▇▇▇▇▇, LLP, in form and substance
reasonably satisfactory to the Purchasers concerning certain financial information with
respect to Military Financial Services, LLC set forth in the General Disclosure Package and
confirming that each of ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP and McGladrey & ▇▇▇▇▇▇, LLP is a registered
public accounting firm and independent public accountants within the meaning of the
Securities Laws.
(c) No Material Adverse Change. 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 otherwise), results of
operations, business, properties or prospects of the Company, the Guarantors and their
respective subsidiaries taken as a whole which, in the judgment of the
Representatives and, except as disclosed in the General Disclosure Package or the Final
Offering Circular, is material and adverse and makes it impractical or inadvisable to
market 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)), 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 the effect of which is such as to make it, in the
judgment of the Representatives, impractical to market or to enforce contracts for the sale
of the Offered Securities, whether in the primary market or in respect of dealings in the
secondary market, (iv) any suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum or maximum prices for
trading on such exchange; (v) or any suspension of trading of any securities of the Company
or any Guarantor on any exchange or in the over-the-counter market; (vi) any banking
moratorium declared by any U.S. federal or New York authorities; (vii) any major disruption
of settlements of securities, payment, or clearance services in the United States or any
other country where such securities are listed or (viii) 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
-16-
Representatives, the effect of any such attack, outbreak, escalation, act, declaration,
calamity or emergency is such as to make it in the judgment of the Representatives
impractical or inadvisable to market the Offered Securities or to enforce contracts for the
sale of the Offered Securities.
(d) Opinion of Counsel for Company and Guarantors. The Purchasers shall have
received opinions, dated the Closing Date, of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for
Holdings, in substantially the form attached as Schedule F-1, (ii) ▇▇. ▇▇▇ ▇▇▇▇▇▇▇, Senior
Vice President and General Counsel of Holdings, for the Guarantors that are incorporated or
organized in the United States in substantially the form attached as Schedule F-2, and
(iii) ▇▇▇▇ & Berlis LLP, Canadian counsel for the Company and the Guarantors that are
incorporated or organized in Canada, in substantially the form attached as Schedule F-3.
(e) Opinion of Counsel for Purchasers. The Purchasers shall have received from
counsel for the Purchasers, such opinion or opinions, dated the Closing Date, with respect
to such matters as the Representatives 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) Officers’ Certificate. The Purchasers shall have received a certificate, dated
the Closing Date, of an executive officer of the Company and each Guarantor and a principal
financial or accounting officer of the Company and each Guarantor in which such officers
shall state that the representations and warranties of the Company and each Guarantor in
this Agreement are true and correct, that the Company and each Guarantor has complied with
all agreements and satisfied all conditions on their part to be performed or satisfied
hereunder at or prior to the Closing Date, and that, subsequent to the date of the most
recent financial statements in the General Disclosure Package there has been no material
adverse change, nor any development or event involving a prospective material adverse
change, in the condition (financial or otherwise), results of operations, business,
properties or prospects of the Company, the Guarantors and their respective subsidiaries
taken as a whole except as set forth in the General Disclosure Package or as described in
such certificate.
(g) Additional Documents. The Purchasers shall have received secretary’s
certificates, dated the Closing Date, reasonably satisfactory to the Purchasers which
shall include the following documents with respect to the Company and the Guarantors as
the Representatives shall reasonably request: (i) the certificates of organization or
comparable documents; (ii) by-laws or comparable organizational documents, (iii)
resolutions of the board of directors or managers of each entity or comparable documents,
(iv) certificates of good standing from the jurisdiction of each such entity and (v)
certificates of good standing and/or qualifications to do business as a foreign
corporation in such jurisdictions as the Purchasers shall reasonably request.
(h) Amendment and Restated Credit Agreement. Assuming the application of proceeds
from the Offered Securities as contemplated by the Preliminary and Final Offering
Circular, the Company and the other parties thereto shall have consummated the Amended and
Restated Credit Agreement among Holdings, Dollar Financial Group, Inc., the Company,
Dollar Financial U.K. Limited, several banks and other financial institutions and ▇▇▇▇▇
Fargo Bank, National Association, as Administrative Agent, on or prior to the Closing
Date.
(i) Execution of Documents. The Company and the Guarantors, as applicable, shall
have executed and delivered the Operative Documents and the Purchasers shall have received
executed counterparts thereof.
(j) Wiring Instructions. The Purchasers shall have been furnished with wiring
instructions for the application of the proceeds of the Offered Securities in accordance
with this Agreement and such other information as they may reasonably request.
-17-
(k) DTC. All agreements set forth in the blanket representation letter of the
Company to DTC relating to the approval of the Offered Securities by DTC for “book-entry”
transfer shall have been complied with.
The Company and the Guarantors will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably request. The
Representatives may in their sole discretion waive on behalf of the Purchasers compliance with any
conditions to the obligations of the Purchasers hereunder, whether in respect of an Optional
Closing Date or otherwise.
8. Indemnification and Contribution. (a) Indemnification of Purchasers. The Company and
the Guarantors will indemnify and hold harmless each Purchaser, its officers, employees, agents,
partners, members, directors and its affiliates and each person, if any, who controls such
Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
(each, an “Indemnified Party”), against any and all losses, claims, damages or liabilities, joint
or several, to which such Indemnified Party may become subject, under the Securities Act, the
Exchange Act, other Federal or state statutory law or regulation 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
Preliminary Offering Circular or the Final Offering Circular, in each case as amended or
supplemented, or any Issuer Free Writing Communication (including with limitation, any Supplemental
Marketing Material), or arise out of or are based upon the omission or alleged omission of a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading and will reimburse each Indemnified Party for any legal
or other expenses reasonably incurred by such Indemnified Party in connection with investigating,
preparing or defending against any loss, claim, damage, liability, action, litigation,
investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto)
whether threatened or commenced and in connection with the enforcement of this provision with
respect to any of the above as such expenses are incurred; provided, however, that the Company and
the Guarantors will not 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 by any Purchaser through the Representatives
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) Indemnification of Company. Each Purchaser will severally and not jointly indemnify and
hold harmless each of the Company, the Guarantors, each of their respective directors and each of
their respective officers and each person, if any, who controls the Company or such Guarantor
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a
“Purchaser Indemnified Party”), against any losses, claims, damages or liabilities to which such
Purchaser Indemnified Party may become subject, under the Securities Act, the Exchange Act, other
Federal or state statutory law or regulation 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 Preliminary Offering Circular or
the Final Offering Circular, in each case as amended or supplemented, or any Issuer Free Writing
Communication or arise out of or are based upon the omission or the alleged omission of
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 by
such Purchaser through the Representatives specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by such Purchaser Indemnified Party in connection with
investigating, preparing or defending against any such loss, claim, damage, liability, action,
litigation, investigation or proceeding whatsoever (whether or not such Purchaser Indemnified Party
is a party thereto) whether threatened or commenced based upon any such untrue statement or
omission, or any such alleged untrue statement or omission as such expenses are incurred, it being
understood and agreed that the only such information furnished by any Purchaser consists of the
following information in the Preliminary and Final Offering Circular furnished under the caption
“Plan of Distribution” on behalf of each Purchaser:
-18-
(i) the legal name of such Purchaser, (ii) the third paragraph, (iii) the second sentence in the
fourth paragraph and (iv) the second sentence in the ninth paragraph; provided, however, that the
Purchasers 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) Actions against Parties; Notification. Promptly after receipt by an indemnified party
under this Section 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
substantive 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 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the defense thereof
other than reasonable 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) Contribution. If the indemnification provided for in this Section 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
on the one hand and the Purchasers 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
Purchasers 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 Purchasers 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 Purchasers 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 and the Guarantors or the Purchasers 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), no Purchaser shall be required to contribute
any amount in excess of the amount by which the total price at which the Offered Securities
purchased by it were resold exceeds the amount of any damages which such Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Purchasers’
-19-
obligations in this subsection (d) to contribute are several in proportion to their respective
purchase obligations and not joint. The Company, the Guarantors and the Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section 8(d) were determined by
pro rata allocation (even if the Purchasers were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable considerations referred to
in this Section 8(d).
9. Default of Purchasers. If any Purchaser or Purchasers default in their obligations to
purchase Offered Securities hereunder and the aggregate principal amount of Offered Securities that
such defaulting Purchaser or Purchasers agreed but failed to purchase does not exceed 10% of the
total principal amount of Offered Securities, the Representatives may make arrangements
satisfactory to the Company for the purchase of such Offered Securities by other persons, including
any of the Purchasers, but if no such arrangements are made by the Closing Date, the non-defaulting
Purchasers shall be obligated severally, in proportion to their respective commitments hereunder,
to purchase the Offered Securities that such defaulting Purchasers agreed but failed to purchase.
If any Purchaser or Purchasers so default and the aggregate principal amount of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total principal amount of
Offered Securities and arrangements satisfactory to the Representatives and the Company for the
purchase of such Offered Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any non-defaulting
Purchaser or the Company, except as provided in Section 10. As used in this Agreement, the term
“Purchaser” includes any person substituted for a Purchaser under this Section. Nothing herein will
relieve a defaulting Purchaser from liability for its default.
10. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company, the Guarantors or
their respective officers and of the several Purchasers 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 any Purchaser, the Company, the Guarantors 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 this Agreement is terminated pursuant to
Section 9 or if for any reason the purchase of the Offered Securities by the Purchasers is not
consummated, the Company and the Guarantors shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the Company, the
Guarantors and the Purchasers pursuant to Section 8 shall remain in effect. If the purchase of the
Offered Securities by the Purchasers is not consummated for any reason other than solely because of
the termination of this Agreement pursuant to Section 9 or the occurrence of any event specified in
clause (iii), (iv), (vi), (vii) or (viii) of Section 7(c), the Company and the Guarantors will
reimburse the Purchasers for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the Offered Securities.
11. Notices. All communications hereunder will be in writing and, if sent to the Purchasers
will be mailed, delivered or telegraphed and confirmed to the Purchasers, c/o Credit Suisse
Securities (USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, or, if
sent to the Company or the Guarantors, will be mailed, delivered or telegraphed and confirmed to
c/o Dollar Financial Corp., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇, Chairman and Chief Executive Officer; provided, however, that any notice to a
Purchaser pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to such
Purchaser.
12. 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 8, 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 and third
sentences of Section 5(b) hereof against the Company as if such holders were parties thereto.
13. Representation of Purchasers. The Representatives will act for the several Purchasers in
connection with this purchase, and any action under this Agreement taken by the Representatives
will be binding upon all the Purchasers.
-20-
14. 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.
15. Absence of Fiduciary Relationship. The Company and the Guarantors acknowledge and agree
that:
(a) No Other Relationship. The Representatives have been retained solely to act as initial
purchasers in connection with the initial purchase, offering and resale of the Offered Securities
and that no fiduciary, advisory or agency relationship between the Company or the Guarantors and
the Representatives has been created in respect of any of the transactions contemplated by this
Agreement or the Preliminary Offering Circular or Final Offering Circular, irrespective of whether
the Representatives have advised or are advising the Company or the Guarantor on other matters;
(b) Arm’s-Length Negotiations. The purchase price of the Offered Securities set forth in
this Agreement was established by the Company and the Guarantors following discussions and
arm’s-length negotiations with the Representatives and the Company and the Guarantors are capable
of evaluating and understanding and understands and accepts the terms, risks and conditions of the
transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company and the Guarantors have been advised that
the Representatives and its affiliates are engaged in a broad range of transactions which may
involve interests that differ from those of the Company or the Guarantors and that the
Representatives have no obligation to disclose such interests and transactions to Company or the
Guarantors by virtue of any fiduciary, advisory or agency relationship; and
(d) Waiver. The Company and the Guarantors waive, to the fullest extent permitted by law,
any claims it may have against the Representatives for breach of fiduciary duty or alleged breach
of fiduciary duty and agree that the Representatives shall have no liability (whether direct or
indirect) to the Company or the Guarantors in respect of such a fiduciary duty claim or to any
person asserting a fiduciary duty claim on behalf of or in right of the Company or the Guarantors,
including stockholders, employees or creditors of the Company or the Guarantors.
16. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Company and the Guarantors hereby submit 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. The Company
and the Guarantors irrevocably and unconditionally waive any objection to the laying of venue of
any suit or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby in Federal and state courts in the Borough of Manhattan in The City of New York
and irrevocably and unconditionally waive and agree not to plead or claim in any such court that
any such suit or proceeding in any such court has been brought in an inconvenient forum.
[Remainder of this page intentionally left blank]
-21-
If the foregoing is in accordance with the Purchasers’ 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 several Purchasers in accordance with its terms.
| Very truly yours, NATIONAL MONEY MART COMPANY |
||||
| By: | /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | Senior Vice President and Secretary | |||
| DOLLAR FINANCIAL CORP. |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: | Senior Vice President, Finance | |||
110591 Alberta Ltd.
656790 BC Ltd.
Advance Canada, Inc.
Advance Canada Properties, Inc.
Any Kind Check Cashing Centers, Inc.
Cash Unlimited of Arizona, Inc.
Check Mart of Florida, 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.
Dollar Financial Group, Inc.
DFG Canada, Inc.
DFG International, Inc.
DFG World, Inc.
Dollar Financial Insurance Corp.
Financial Exchange Company of Ohio, Inc.
656790 BC Ltd.
Advance Canada, Inc.
Advance Canada Properties, Inc.
Any Kind Check Cashing Centers, Inc.
Cash Unlimited of Arizona, Inc.
Check Mart of Florida, 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.
Dollar Financial Group, 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. MoneyMart, Inc. Monetary Management Corporation of Pennsylvania, Inc. Monetary Management of California, Inc. Monetary Management of Maryland, Inc. Monetary Management of New York, Inc. Money Card Corp. Money Mart Canada, Inc. Money Mart CSO, Inc. Money Mart Express, Inc. Moneymart, Inc. Pacific Ring Enterprises PD Recovery, Inc. |
||||
| By: | /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | Senior Vice President and Secretary | |||
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
is hereby confirmed and accepted
as of the date first above written.
Credit Suisse Securities (USA) LLC
| By: | /s/ ▇▇▇ ▇. ▇▇▇▇▇ | |||
| Name: ▇▇▇ ▇. ▇▇▇▇▇ | ||||
| Title: Managing Director |
▇▇▇▇▇ FARGO SECURITIES, LLC
| By: | /s/ ▇▇▇▇▇ ▇. O’Melveny | |||
| Name: ▇▇▇▇▇ ▇. O’Melveny | ||||
| Title: Senior Vice President |
Acting on behalf of themselves
and as the Representatives of
the several Purchasers
and as the Representatives of
the several Purchasers
Exhibit D-1
NATIONAL MONEY MART COMPANY
This term sheet to the preliminary offering circular dated December 1, 2009, should be read
together with the preliminary offering circular before making a decision in connection with an
investment in the notes. The information in this term sheet supersedes the information in the
preliminary offering circular to the extent that it is inconsistent therewith. Terms used but not
defined herein have the meaning ascribed to them in the preliminary offering circular.
Issuer:
|
National Money Mart Company | |||
Security Description:
|
10.375% Senior Notes due 2016 | |||
Guarantors:
|
Dollar Financial Corp., certain of its existing U.S. and Canadian subsidiaries, and future U.S. and Canadian subsidiaries, including Military Financial Services, LLC and its subsidiaries, after becoming guarantors under the senior secured credit facility | |||
Distribution:
|
Rule 144A (with Registration Rights) | |||
Principal Amount:
|
$600,000,000 | |||
Gross Proceeds:
|
$596,388,000 | |||
Coupon:
|
10.375% | |||
Maturity:
|
December 15, 2016. The maturity date will be automatically shortened to November 30, 2012, unless prior to October 30, 2012 the aggregate principal amount of the outstanding 2.875% senior convertible notes due 2027 issued by Dollar Financial Corp. has been reduced to an amount less than or equal to $50.0 million by means of (i) the repurchase or redemption thereof , (ii) defeasance thereof or (iii) the exchange or conversion thereof into unsecured notes of Dollar Financial Corp. or any of its direct or indirect subsidiaries having no mandatory repayment prior to April 1, 2015, or into common stock of Dollar Financial Corp. | |||
Price to Public:
|
99.398% of principal amount | |||
Yield to Maturity:
|
10.500% | |||
Spread to Benchmark Treasury:
|
757 bps | |||
Benchmark Treasury:
|
UST 2.75% due November 30, 2016 | |||
Original Issue Discount:
|
The notes will be issued with de minimis original issue discount for United States federal income tax purposes | |||
Interest Payment Dates:
|
Semi-annually in arrears on each June 15 and | |||
| December 15, commencing on June 15, 2010 | ||||
| Optional Redemption: | Redemption Period | Price | ||
| December 15, 2013 | 105.188% | |||
| December 15, 2014 | 102.594% | |||
| December 15, 2015 and thereafter | 100.000% |
Make-whole Redemption:
|
Callable prior to December 15, 2013 at make-whole call price of Treasury + 50 bps | |
Equity Clawback:
|
Redeem until December 15, 2012 at 110.375% plus accrued interest for up to 35.0% of the aggregate principal amount with the proceeds of certain public equity offerings | |
Change of Control:
|
Put at 101% of principal plus accrued interest | |
Trade Date:
|
December 10, 2009 | |
Settlement Date:
|
December 23, 2009 (T+9) | |
CUSIP / ISIN:
|
144A: 637004 AA0 / US637004AA03 | |
| Reg S: C60268 AA4 / USC60268AA42 | ||
Joint Book-Running Managers:
|
Credit Suisse Securities (USA) LLC | |
| ▇▇▇▇▇ Fargo Securities, LLC | ||
Co-Managers:
|
JMP Securities LLC | |
| ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. | ||
| ▇▇▇▇ Capital Partners, LLC | ||
| ▇▇▇▇▇▇▇▇ Inc. | ||
| U.S. Bancorp Investments, Inc. | ||
| CSCA Capital Advisors, LLC |
The net proceeds from this offering after deducting fees and estimated expenses relating to
the amended credit facility and this offering, and assuming 0.602% OID, will be approximately
$575.6 million. The following is a summary of the estimated use of proceeds from this offering:
| • | the payment of $117.8 million as purchase price in connection with the DFS acquisition; | ||
| • | the prepayment of $350.0 million of outstanding borrowings under the Company’s term loan portion of the senior secured credit facility; and | ||
| • | working capital of $107.8 million for general corporate purposes. |
As of September 30, 2009, on a pro forma basis after giving effect to the Transactions, we
would have had approximately $19.6 million aggregate principal amount of senior secured
indebtedness outstanding, and an additional $75.0 million, C$28.5 million and GBP5.0 million under
our U.S. revolving loan, Canadian revolving loan and our U.K. overdraft facility, respectively,
that we would have been able to borrow under the senior secured credit facility, to which the notes
would have been effectively subordinated to the extent of the value of the collateral.
The pro forma net interest expense for the year ended June 30, 2009 and the three months ended
September 30, 2009 is $90.0 million and $26.0 million, respectively.
The pro forma net cash interest expense for the year ended June 30, 2009 is $76.0 million.
The Pro Forma Total Debt to Adjusted EBITDA for the year ended June 30, 2009 is 5.3x.
Adjusted EBITDA to Pro Forma net cash interest expense for the year ended June 30, 2009 is
2.05x.
Pro forma Ratio of Earnings to Fixed Charges for the year ended June 30, 2009 is 1.1x.
The amount in clause (b)(1)(A) of the covenant described under “Incurrence of Indebtedness and
Issuance of Disqualified Stock and Preferred Stock” on page 96 of the preliminary offering circular
is changed to $250.0 million.
The definition of “Existing Indebtedness” on page 121 of the preliminary offering circular is
replaced in its entirety by the following:
“Existing Indebtedness” means any Indebtedness of the Company or any of its Restricted
Subsidiaries outstanding on the date of the indenture until such Indebtedness is repaid.
Exchange of a Portion of the 2.875% Senior Convertible Notes due 2027
On December 8, 2009, Dollar Financial Corp. announced that it had entered into exchange
agreements with several holders of its 2.875% Senior Convertible Notes due 2027. Pursuant to the
exchange agreements, $110,762,000 in aggregate principal amount of the existing convertible notes
will be exchanged for an equal principal amount of new 3.00% Senior Convertible Notes of the
Company due 2028. The new convertible notes issuable in the transaction will have substantially
the same terms as the existing convertible notes, other than (i) the maturity of the new
convertible notes will be April 1, 2028, (ii) the conversion price of the new convertible notes
will be $28.956 per share, (iii) holders of the new convertible notes will have the right to
require us to repurchase their new convertible notes on each of April 1, 2015, April 1, 2018 and
April 1, 2023, for a purchase price payable in cash equal to 100% of the principal amount of the
new convertible notes to be purchased plus any accrued and unpaid interest, and (iv) the Company
will have the right to redeem the new convertible notes on and after April 5, 2015, for a payment
in cash equal to 100% of the principal amount of the new convertible notes to be redeemed, plus
accrued and unpaid interest. Completion of the exchanges is subject to certain conditions,
including the qualification of the indenture under which the new convertible notes will be issued.
It is expected that delivery of the notes will be made against payment therefor on or about
December 23, 2009, which is the ninth business day following the date of pricing of the notes (this
settlement cycle being referred to as “T+9”). You should note that trading of the notes on the date
of pricing or on the succeeding five business days may be affected by the T+9 settlement. Under
Rule 15c6-1 of the SEC under the Exchange Act, trades in the secondary market generally are
required to settle in three business days, unless the parties to any such trade expressly agree
otherwise. Accordingly, purchasers who wish to trade the notes on the date of pricing or the
succeeding five business days will be required, by virtue of the fact that the notes initially will
settle in T+9, to specify an alternate settlement cycle at the time of any such trade to prevent a
failed settlement. Purchasers of the notes who wish to trade the notes on the date of pricing or
the succeeding five business days should consult their own advisor.
This communication is for informational purposes only and does not constitute an offer to sell, or
a solicitation of an offer to buy any security. No offer to buy securities described herein can be
accepted, and no part of the purchase price thereof can be received, unless the person making such
investment decision has received and reviewed the information contained in the relevant offering
circular in making their decisions. This communication is not intended to be a confirmation as
required under Rule 10b-10 of the Securities Exchange Act of 1934. A formal confirmation will be
delivered to you separately. This notice shall not constitute an offer to sell or a solicitation
of an offer to buy, nor shall there be any sale of the notes in any state or jurisdiction in which
such offer, solicitation or sale would be unlawful. The notes will be offered and sold to
qualified institutional buyers in the United States in reliance on Rule 14A under the Securities
Act of 1933, as amended (the “Act”), and to persons in offshore transactions in reliance on
Regulation S under the Act. The notes have not been registered under the Act or any state
securities laws, and may not be offered or sold in the United States or to U.S. persons absent
registration or an applicable exemption from the registration requirements.