Exhibit 10.19
INTERCREDITOR
AGREEMENT
THIS INTERCREDITOR AGREEMENT (as
amended, restated or otherwise modified, the “
Intercreditor Agreement ”), is made and dated as of
November 13, 2003, by and between WELLS FARGO BANK, NATIONAL
ASSOCIATION, a national banking association, as administrative
agent (in such capacity, the “ Administrative Agent
”) for the Lenders (as such term and capitalized terms not
otherwise defined are defined in Section 1 below) under the
Credit Facility Documents, and U.S. BANK NATIONAL ASSOCIATION, a
national banking association, as trustee (in such capacity, the
“ Noteholder Trustee ”) for the holders of the
Notes under the Noteholder Documents (the “
Noteholders ”).
RECITALS
A.
Pursuant to that certain Second
Amended and Restated Credit Agreement dated as of even date
herewith by and among Dollar Financial Group, Inc., a New York
corporation (the “ Company ”), DFG Holdings,
Inc., a Delaware corporation (the “ Parent ”),
the lenders from time to time party thereto (including the issuer
of any letters of credit thereunder, the “ Lenders
”), the Administrative Agent, U.S. Bank National Association,
as syndication agent, and Citicorp North America, Inc., as
documentation agent (as amended, extended or replaced from time to
time, the “ Credit Agreement ”), the Lenders
agreed to extend credit to the Company on the terms and conditions
set forth therein.
B.
The Credit Facility Obligations are
Guaranteed by the Parent and by the Subsidiary Guarantors (the
Parent and the Subsidiary Guarantors being, collectively, the
“ Guarantors ”) pursuant to Guarantees issued by
the Guarantors in favor of the Administrative Agent for the benefit
of the Lenders (including any Guarantees issued by any Subsidiary
of the Parent (other than the Company or any Foreign Subsidiary of
the Parent) in the future, the “ Credit Facility
Guarantees ”). Each of the Credit Facility
Guarantees is secured by a first priority security interest in
favor of the Administrative Agent for the benefit of the Lenders in
certain personal property (general and intangible and fixtures) of
the Person executing the same, including, without limitation, by
all capital stock of Subsidiaries of the Parent owned by such
Person (limited in the case of capital stock of Foreign
Subsidiaries owned by such Person to sixty five percent (65%) of
such capital stock (the “ Pledged Foreign Subsidiary
Shares ”) and, together with all additional personal
property collateral securing the Credit Facility Obligations, the
“ Credit Facility Collateral ”), pursuant to a
pledge and security agreement executed by such Person in favor of
the Administrative Agent for the benefit of the Lenders
(collectively, the “ Credit Facility Pledge Agreement
”).
C.
Pursuant to that certain indenture
of even date herewith by and among the Company, as issuer, the
Parent, the Subsidiary Guarantors and the Noteholder Trustee, as
trustee, (as amended, extended or replaced from time to time, the
“ Indenture ”), the Company issued $220,000,000
9.75% Senior Notes due 2011 (the “ Notes
”).
D.
The Noteholder Obligations are
Guaranteed by the Subsidiary Guarantors pursuant to Guarantees
issued by the Subsidiary Guarantors in favor of the Noteholder
Trustee for the benefit of the Noteholders (including any
Guarantees issued by any Subsidiary of the Parent (other than the
Company or any Foreign Subsidiary of the Parent) in the future, the
“ Noteholder Subsidiary Guarantees ”) and by the
Parent pursuant to a Guarantee issued by the Parent in favor of the
Noteholder Trustee for the benefit of the Noteholders (the “
Noteholder Parent Guarantee ” and, collectively, with
the Noteholder Subsidiary Guarantees, the “ Noteholder
Guarantees ”). The Noteholder Guarantees, with
respect to any existing or future Foreign Subsidiary that is a
Subsidiary of a Guarantor (the “ Noteholder Secured
Guarantees ”), and the Notes, with respect to any Foreign
Subsidiary that is a Subsidiary of the Company, will be secured by
a second priority security interest in Pledged Foreign Subsidiary
Shares pursuant to pledge agreements
executed by the Company or such Guarantor, as
the case may be, in favor of the Noteholder Trustee for the benefit
of the Noteholders (collectively, the “ Noteholder Pledge
Agreement ”).
E.
The Administrative Agent and the
Lenders require that, until the Standstill Termination Date: (1)
neither the Noteholder Trustee nor any Noteholders be permitted to
exercise any rights under the Noteholder Subsidiary Guarantees or
the Noteholder Pledge Agreement, (2) neither the Noteholder Trustee
nor any Noteholder be permitted to exercise any rights under the
Noteholder Parent Guarantee if, as a result thereof, the Noteholder
Trustee or any Noteholder would acquire, directly or indirectly,
greater rights in the assets and properties of the Parent than are
held by the holders of the Parent Notes, (3) the security interest
in the Pledged Foreign Subsidiary Shares in favor of the Noteholder
Trustee be and remain junior to the security interest of the
Administrative Agent for the benefit of the Lenders therein, (4)
the Noteholder Secured Guarantees be and remain secured by no
Collateral other than the Pledged Foreign Subsidiary Shares and (5)
the Noteholder Guarantees, other than the Noteholder Secured
Guarantees, be and remain unsecured.
F.
As a condition precedent to the
agreement of the Administrative Agent and the Lenders to enter into
the Credit Agreement and extend credit thereunder and of the
Noteholders to purchase the Notes under the Indenture, the
Administrative Agent and the Noteholder Trustee are required to
enter into this Intercreditor Agreement confirming the requirements
of the Administrative Agent and the Lenders set forth in Recital E
above and the terms under which Wells Fargo Bank, National
Association will act as bailee for the benefit of the Noteholder
Trustee and the Noteholders with respect to the Pledged Foreign
Subsidiary Shares.
NOW, THEREFORE, in consideration of
the above Recitals and for other good and valuable consideration
the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:
AGREEMENT
1.
Certain Defined Terms
. The meanings of terms
defined in this Intercreditor Agreement are equally applicable to
the singular and plural forms of such defined terms. When used in
this Intercreditor Agreement, the following terms have the
following respective meanings:
“ Administrative Agent
” has the meaning set forth in the introduction to this
Intercreditor Agreement.
“ Bailee ” means
Wells Fargo Bank, National Association and any successor appointed
pursuant to Section 3 of this Intercreditor
Agreement.
“ Bankruptcy Code
” means the United States Bankruptcy Code, 11 U.S.C., as
amended.
“ Benefited Parties
” means the Administrative Agent, the Lenders, the Noteholder
Trustee and the Noteholders.
“ Collateral ”
means any property subject to a Lien securing the Credit Facility
Obligations or the Noteholder Obligations.
“ Company ” has
the meaning set forth in Recital A to this Intercreditor
Agreement.
“ Credit Agreement
” has the meaning set forth in Recital A to this
Intercreditor Agreement.
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“ Credit Facility
Collateral ” has the meaning set forth in Recital B to
this Intercreditor Agreement.
“ Credit Facility
Documents ” means the Credit Agreement, the Credit
Facility Guarantees, the Credit Facility Security Documents and any
other document or instrument, whether existing or hereafter given
to the Administrative Agent or any Lender in respect of the Credit
Facility Obligations, as any of the same may be amended, extended
or replaced from time to time.
“ Credit Facility
Guarantees ” has the meaning set forth in Recital B to
this Intercreditor Agreement.
“ Credit Facility
Obligations ” means any and all outstanding and unpaid
obligations of every nature of the Obligors (including on account
of letters of credit) from time to time payable to the Lenders, the
Administrative Agent or to any of them under any Credit Facility
Documents, whether contingent, secured or unsecured, arising under,
or in connection with, any Credit Facility Documents, by operation
of law or otherwise, including any and all expenses (including,
without limitation, attorneys’ fees and disbursements),
premiums, fees and charges incurred in connection therewith and any
interest thereon, including, without limitation, any post-petition
interest accruing thereon after any Obligor becomes subject to an
Insolvency Proceeding (whether or not such interest is allowable or
enforceable against such Obligor or recoverable against such
Obligor or its respective bankruptcy estate), whether by means of
an adequate protection payment or otherwise, and including all
obligations of any Obligor to repay any amount previously paid by
such Obligor, which amount has been returned to such Obligor or to
a trustee by the Administrative Agent or any Lender pursuant to
Sections 547 or 548 of the Bankruptcy Code or otherwise.
“ Credit Facility Pledge
Agreement ” has the meaning given such term in Recital B
to this Intercreditor Agreement.
“ Credit Facility Security
Documents ” means the Credit Facility Pledge Agreement
and any other security agreement, mortgage, deed of trust, pledge
agreement or other agreement or instrument pursuant to which any
Obligor grants a Lien to secure the Credit Facility Obligations,
whether now existing or hereafter incurred.
“ Final Standstill
Termination Date ” means the date on or after the
Standstill Termination Date that the Bailee, in its reasonable
discretion, determines that the Credit Facility Obligations have
been finally and indefeasibly paid, and any payments or
distributions applied on the Credit Facility Obligations are not
subject to being rescinded or recovered from the Administrative
Agent or any Lender by any Obligor or trustee in Insolvency
Proceedings of any Obligor pursuant to Sections 547 or 548 of the
Bankruptcy Code or otherwise; provided, however, that in no case
shall the Final Standstill Termination Date be more than 100 days
after the initial Standstill Termination Date.
“ Foreign Subsidiary
” means a Subsidiary of the Parent that is organized under
the laws of a jurisdiction other than a State of the United States
of America and the material portion of the operations of which are
conducted outside of the States, Districts, Territories or
Possessions of the United States of America.
“ Guarantee ”
means, as to any Person, any (1) obligation, contingent or
otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any obligation payable or performable by
another Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of
such Person, direct or indirect, (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such obligation,
(b) to purchase or lease property, securities or services for the
purpose of assuring the obligee in respect of such obligation of
the payment or performance of such obligation, (c) to maintain
working capital, equity capital or any other financial statement
condition or liquidity or level of income or cash flow of the
primary
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obligor so as to enable the primary obligor to
pay such obligation or (d) entered into for the purpose of assuring
in any manner the obligee in respect of such obligation of the
payment or performance thereof or to protect such obligee against
loss in respect thereof (in whole or in part), or (2) any Lien on
any assets of such Person securing any obligation of the primary
obligor, whether or not such obligation is assumed by such
Person.
“ Guarantors ”
has the meaning set forth in Recital B to this Intercreditor
Agreement.
“ Indenture ” has
the meaning set forth in Recital C to this Intercreditor
Agreement.
“ Intercreditor
Agreement ” has the meaning set forth in the introduction
to this Intercreditor Agreement.
“ Insolvency Proceeding
” means (1) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, custodianship,
composition or other proceeding or case relating to any Person, or
any of its respective assets, (2) any dissolution or winding up of
any Person, whether voluntary or involuntary and whether or not
involving an insolvency or bankruptcy case or (3) any assignment
for the benefit of creditors or any other marshalling of any assets
of any Person.
“ Lenders ” has
the meaning set forth in Recital A to this Intercreditor
Agreement.
“ Lien ” means,
with respect to any real or personal property, any mortgage, lien,
pledge, charge, security interest, conditional assignment or other
encumbrance, or any interest or title of any vendor, lessor, lender
or other secured party under a conditional sale or other title
retention agreement or capital lease arrangement, securing or
otherwise affecting such property.
“ Noteholders ”
has the meaning set forth in the introduction to this Intercreditor
Agreement.
“ Noteholder Default
” means any default under the Indenture that causes, whether
automatically or by reason of the exercise of optional
acceleration, all of the Noteholder Obligations to become due and
payable prior to their stated maturity date.
“ Noteholder Documents
” means the Indenture, the Notes, the Noteholder Guarantees,
the Noteholder Pledge Agreement and any other document or
instrument, whether existing or hereafter given to the Noteholder
Trustee in respect of the Noteholder Obligations, as any of the
same may be amended, extended or replaced from time to
time.
“ Noteholder Guarantees
” has the meaning set forth in Recital D to this
Intercreditor Agreement.
“ Noteholder
Obligations ” means any and all outstanding and unpaid
obligations of every nature of the Obligors from time to time
payable to the Noteholders, the Noteholder Trustee or any of them
under any Noteholder Documents, whether contingent, secured or
unsecured, arising under, or in connection with, any Noteholder
Documents, by operation of law or otherwise, including any and all
expenses (including, without limitation, attorneys’ fees and
disbursements), premiums, fees and charges incurred in connection
therewith and any interest thereon, including, without limitation,
any post-petition interest accruing thereon after any Obligor
becomes subject to an Insolvency Proceeding (whether or not such
interest is allowable or enforceable against such Obligor or
recoverable against such Obligor or its respective bankruptcy
estate), whether by means of an adequate protection payment or
otherwise, and including all obligations of any Obligor to repay
any amount previously paid by such Obligor, which amount has been
returned to such Obligor or to a trustee by the Noteholder Trustee
or any Noteholder pursuant to Sections 547 or 548 of the Bankruptcy
Code or otherwise; provided “Noteholder
Obligations”
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shall not include any amounts due to the
Noteholder Trustee pursuant to Section 8.07 of the Indenture or
pursuant to the Noteholder Guarantees in respect
thereof.
“ Noteholder Parent
Guarantee ” has the meaning set forth in Recital D to
this Intercreditor Agreement.
“ Noteholder Pledge
Agreement ” has the meaning set forth in Recital D to
this Intercreditor Agreement.
“ Noteholder Secured
Guarantees ” has the meaning set forth in Recital D to
this Intercreditor Agreement.
“ Noteholder Subsidiary
Guarantees ” has the meaning set forth in Recital D to
this Intercreditor Agreement.
“ Noteholder Trustee
” has the meaning set forth in the introduction to this
Intercreditor Agreement.
“ Notes ” has the
meaning set forth in Recital C to this Intercreditor
Agreement.
“ Obligor ” means
any of the Parent, the Subsidiary Guarantors or the
Company.
“ Other Lien ”
means, with respect to any property of any Obligor, any of the
following, whether arising at law or in equity: (1) Liens on or
other interests in any such property arising in litigation,
including, without limitation, attachment liens, execution liens,
liens of “keepers” (including, without limitation under
California Code of Civil Procedure Section 488.395), liens arising
on orders for examination (including, without limitation, under
California Code of Civil Procedure Sections 708.110, 708.120 and
708.205), liens arising in creditor’s suits (including
without limitation under California Code of Civil Procedure Section
708.250), liens arising under charging orders (including, without
limitation, under California Code of Civil Procedure Section
708.320), liens in pending actions (including, without limitation,
under California Code of Civil Procedure Section 708.410), and
liens of assignment orders (including, without limitation under
California Code of Civil Procedure Section 708.510), (2) trust
interests in any such property, whether actual, implied, or
constructive, whether arising by reason of contract, law or equity,
(3) forfeiture rights in any such property, whether arising by
contract, law or equity and (4) any other possessory or
nonpossessory interest in any of such property that would have
priority over the claim of an unsecured creditor in an Insolvency
Proceeding of such Person.
“ Parent ” has
the meaning set forth in Recital A to this Intercreditor
Agreement.
“ Parent Notes ”
means the Senior Notes due 2012 and the Senior Subordinated Notes
due 2012 of the Parent.
“ Person ” means
any corporation, natural person, firm, joint venture, partnership,
trust, unincorporated organization, government or any department or
agency of any government.
“ Pledged Foreign
Subsidiary Shares ” has the meaning set forth in Recital
B to this Intercreditor Agreement.
“ Remedial Action
” means the direct or indirect exercise by the Noteholder
Trustee or any Noteholder of any remedy pursuant to any Noteholder
Document or applicable law (whether considered at law or in
equity), to collect all or any part of the Noteholder Obligations
whether by judicial action, or
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otherwise, including, without limitation, (1)
any action to demand or collect payment or to commence Insolvency
Proceedings, (2) foreclosure, sale in lieu of foreclosure,
disposition under the UCC, collection on any Collateral or offset,
(3) institution of litigation for any such purpose or (4) any
action to obtain an Other Lien.
“ Restricted Remedial
Action ” means, until the Standstill Termination Date, a
Remedial Action by the Noteholder Trustee or any Noteholder (1)
under or in respect of any Noteholder Subsidiary Guarantee or
against any Subsidiary Guarantor (including, without limitation,
any action to obtain an Other Lien on property of any Subsidiary
Guara
