Exhibit 1.1
$30,000,000
Dollar Financial Group, Inc.
9.75% Senior Notes due 2011
PURCHASE AGREEMENT
June 20, 2005
Credit Suisse First Boston
LLC,
Eleven Madison
Avenue,
New York, N.Y.
10010-3629.
Ladies and Gentlemen:
1. Introductory. Dollar
Financial Group, Inc., a New York corporation (the
“Company” ), proposes, subject to the terms and
conditions stated herein, to issue and sell to Credit Suisse First
Boston, LLC (the initial “Purchaser” ) an
aggregate of U.S. $30 million principal amount of its
9.75% Senior Notes due 2011 (the “Offered
Securities” ). The Company’s obligations under the
Offered Securities, including the due and punctual payment of
interest on the Offered Securities, shall be fully and
unconditionally guaranteed (each, a “Guarantee”
and, collectively, the “Guarantees” ) on a joint
and several basis by Dollar Financial Corp., formerly known as DFG
Holdings, Inc. (“Holdings”) and the
Company’s existing and future U.S. direct and indirect
subsidiaries, including Any Kind Check Cashing Centers, Inc., Cash
Unlimited of Arizona, Inc., Check Mart of Louisiana, Inc., Check
Mart of New Mexico, Inc., Check Mart of Pennsylvania, Inc., Check
Mart of Texas, Inc., Check Mart of Wisconsin, Inc., DFG Canada,
Inc., DFG International, Inc., DFG World, Inc., Dollar Financial
Insurance Corp., Financial Exchange Company of Ohio, Inc.,
Financial Exchange Company of Pennsylvania, Inc., Financial
Exchange Company of Pittsburgh, Inc., Financial Exchange Company of
Virginia, Inc., Loan Mart of Oklahoma, Inc., Monetary Management
Corporation of Pennsylvania, Monetary Management of California,
Inc., Monetary Management of Maryland, Inc., Monetary Management of
New York, Inc., Money Mart Express, Inc., MoneyMart, Inc., Pacific
Ring Enterprises, Inc., PD Recovery, Inc. and We The People USA,
Inc. (each, a “Subsidiary Guarantor” and,
together with Holdings, the “Guarantors” ). As
used herein, the term “Offered Securities” shall
include the Guarantees thereof by the Guarantors, unless the
context otherwise requires. The Offered Securities will be issued
under an indenture, dated as of November 13, 2003 (as
previously supplemented, the “Indenture” ),
between the Company, the Guarantors and U.S. Bank National
Association, as Trustee (the “Trustee” ).
The holders of the Offered
Securities will be entitled to the benefits of a Registration
Rights Agreement, to be dated on or about June 23, 2005, among
the Company, the Guarantors and the Purchaser (the
“Registration Rights Agreement” ), pursuant to
which the Company has agreed to file an exchange offer registration
statement with the Securities and Exchange Commission (the
“Commission” ) to exchange the Offered
Securities for a new issue of substantially identical debt
securities registered under the Securities Act of 1933, as amended
(the “Securities Act” ).
2. Representations and
Warranties of the Company and the Guarantors. Each of the
Company and the Guarantors, jointly and severally, represents and
warrants to, and agrees with, the Purchaser that:
|
|
| |
(a) An
offering circular relating to the Offered Securities has been
prepared by the Company. Such offering circular (the
“Offering Circular” ), as supplemented as of the
date of this Agreement, together with the documents listed in
Schedule A hereto and any other document approved by the
Company or any Guarantor for use in connection with the
contemplated resale of the Offered Securities, are hereinafter
collectively referred to as the “Offering
Document”. On the date of this Agreement, the Offering
Document does not include any untrue statement of a material fact
or omit to state any material |
|
|
| |
fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Offering Document based upon
written information furnished to the Company or the Guarantors by
the Purchaser specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(b) hereof. Except as disclosed in the Offering
Document, on the date of this Agreement, the Company’s Annual
Report on Form 10 K most recently filed with the Commission
and all subsequent reports (collectively, the “Exchange
Act Reports” ) which have been filed by the Company with
the Commission or sent to shareholders pursuant to the Securities
Exchange Act of 1934, as amended (the “Exchange
Act” ), do not include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. Such documents, when they were
filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder. |
| |
| |
(b) The
Offered Securities have been duly authorized by the Company; and
when the Offered Securities are delivered and paid for pursuant to
this Agreement and the Indenture on the Closing Date (as defined
below), the Offered Securities will have been duly executed,
authenticated, issued and delivered, will be entitled to the
benefits of the Indenture and security provided by the Pledge
Agreements (as defined below) and will be valid and legally binding
obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, receivership, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and to general equity principles whether arising in a court
of equity or law. The Offered Securities will conform in all
material respects to the description thereof in the Offering
Document. |
| |
| |
(c) The
Guarantee to be endorsed on the Offered Securities by each
Guarantor has been duly authorized by each such Guarantor and, when
issued, will have been duly executed and delivered by each such
Guarantor. When the Offered Securities have been executed,
authenticated and issued in accordance with the terms of the
Indenture, the Guarantee of each Guarantor endorsed thereon will
constitute a valid and legally binding obligation of such
Guarantor, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general
equity principles whether arising in a court of equity or law. The
Guarantees will conform in all material respects to the description
thereof in the Offering Document. |
| |
| |
(d) On the
Closing Date, the Exchange Securities (as defined in the
Registration Rights Agreement and including any Private Exchange
Securities as defined therein) will have been duly authorized by
the Company; and when the Exchange Securities are executed,
authenticated and issued in accordance with the terms of the
Indenture, the Exchange Securities will be entitled to the benefits
of the Indenture and security provided by the Pledge Agreements and
will be the valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, receivership,
moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles
whether arising in a court of equity or law. The Exchange
Securities will conform in all material respects to the description
thereof in the Offering Document. |
| |
| |
(e) The
Guarantee to be endorsed on the Exchange Securities by each
Guarantor has been duly authorized by each such Guarantor and, when
issued, will have been duly executed and delivered by each such
Guarantor and will conform in all material respects to the
description thereof contained in the Offering Document. When the
Exchange Securities have been executed, authenticated and issued in
accordance with the terms of the Indenture, the Guarantee of each
Guarantor endorsed thereon will constitute a valid and legally
binding obligation of such Guarantor, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership, moratorium and similar laws
of general applicability relating to or affecting creditors’
rights and to general equity principles whether arising in a court
of equity or law. |
2
|
|
| |
(f) The
Company has been duly incorporated and is an existing corporation
in good standing under the laws of the State of New York, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Offering Document and the
Exchange Act Reports; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where
the failure to so qualify could not reasonably be expected to
result in a material adverse effect on the condition (financial or
other), business, properties or results of operations of the
Company and its subsidiaries (including the Subsidiary Guarantors)
taken as a whole (“Material Adverse Effect” ),
and attached hereto as Schedule B is a list of all such
jurisdictions. |
| |
| |
(g) Holdings
has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Offering Document and the Exchange
Act Reports; and Holdings is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to
so qualify could not reasonably be expected to result in a Material
Adverse Effect, and attached hereto as Schedule B is a list of
all such jurisdictions. |
| |
| |
(h) The
Company has no direct or indirect U.S. subsidiaries other than
the Subsidiary Guarantors. |
| |
| |
(i) Each
subsidiary of the Company (including each Subsidiary Guarantor) has
been duly incorporated or organized and is an existing corporation
or other entity in good standing under the laws of the jurisdiction
of its incorporation or organization, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Offering Document and the Exchange Act
Reports; and each subsidiary of the Company (including each
Subsidiary Guarantor) is duly qualified to do business as a foreign
corporation or other entity in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where
the failure to so qualify could not reasonably be expected to have
a Material Adverse Effect, and attached hereto as Schedule B
is a list of all such jurisdictions for each Subsidiary Guarantor;
all of the issued and outstanding capital stock of each subsidiary
of the Company (including each Subsidiary Guarantor) has been duly
authorized and validly issued and is fully paid and nonassessable;
and, except as disclosed in the Offering Document or permitted by
the Indenture or the Pledge Agreements, the capital stock of each
subsidiary owned by the Company (including each Subsidiary
Guarantor), directly or indirectly, is owned free from liens,
encumbrances and defects. |
| |
| |
(j) Each of
(i) the Indenture, (ii) the Pledge Agreement, dated as of
November 13, 2003 (the “DFG International Pledge
Agreement” ), between DFG International, Inc. and
U.S. Bank National Association, as collateral agent,
(iii) the Pledge Agreement, dated as of November 13, 2003
(the “DFG World Pledge Agreement” ), between and
DFG World, Inc., and U.S. Bank National Association, as
collateral agent, and (iii) the Pledge Agreement, dated as of
December 21, 2004 (the “DFG Canada Pledge
Agreement” and, together with the DFG International
Pledge Agreement and the DFG World Pledge Agreement, the
“Pledge Agreements” ), by and between DFG
Canada, Inc. and U.S. Bank National Association, as collateral
agent, has been duly authorized by the Company and the Guarantors
party thereto; each of the Indenture and the Pledge Agreements has
been duly executed and delivered by the Company and the Guarantors
party thereto and constitute a valid and legally binding obligation
enforceable against the Company and the Guarantors party thereto in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, receivership, moratorium and
similar laws of general applicability relating to or affecting
creditors’ rights or, in the case of the Pledge Agreements,
the enforcement of the security provided thereby and to general
equity principles whether arising in a court of equity or at law;
each of the Pledge Agreements creates a valid and perfected second
priority lien upon 65% of the capital stock of the directly owned
foreign subsidiaries of the Guarantor party thereto (the
“Collateral” ) and will create a similar lien
upon the capital stock of any foreign subsidiary acquired or
organized by the Guarantor party thereto after the Closing Date and
required to be subjected to the lien of such Pledge Agreement,
subject only to the exceptions referred to in such Pledge
Agreement; and the Collateral is duly held by Wells Fargo Bank,
National Association, as bailee of the Trustee and the |
3
|
|
| |
holders of the Offered Securities for purposes of
perfecting the second priority liens thereon, and all taxes
required to be paid with respect to the execution of the Indenture
and the Pledge Agreements and the issuance of the Offered
Securities have been paid. |
| |
| |
(k) The
Guarantors party to the Pledge Agreements have good and marketable
title to the Collateral, in each case free from liens, encumbrances
and defects other than the liens of the Pledge Agreements, subject
only to liens not prohibited by the Indenture or the Pledge
Agreements; and the descriptions of the Collateral contained in the
granting clause of the Pledge Agreements are correct and adequate
for purposes of the Pledge Agreements. |
| |
| |
(l) Except as
disclosed in the Offering Document, there are no contracts,
agreements or understandings between the Company or any of the
Guarantors or any of their subsidiaries on the one hand and any
person or entity on the other that would give rise to a valid claim
against the Company or any of the Guarantors or any of their
subsidiaries or the Purchaser for a brokerage commission,
finder’s fee or other like payment. |
| |
| |
(m) No
consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement,
the Indenture, the Pledge Agreements and the Registration Rights
Agreement in connection with the issuance and sale of the Offered
Securities by the Company and the issuance of the Guarantees by the
Guarantors, except such as may be required under state securities
laws and the order of the Commission declaring the Exchange Offer
Registration Statement or the Shelf Registration Statement (each as
defined in the Registration Rights Agreement) effective. |
| |
| |
(n) The
execution, delivery and performance of this Agreement, the
Indenture, the Pledge Agreements and the Registration Rights
Agreement by the Company and each Guarantor, the issuance and sale
of the Offered Securities by the Company and the issuance of the
Guarantees by the Guarantors and compliance with the terms and
provisions thereof will not result in a breach or violation of any
of the terms or provisions of, or constitute a default under,
(i) any statute, rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any of the Guarantors or any of
their properties, (ii) the Replacement Credit Facility (as
defined in the Indenture), (iii) any agreement or instrument
to which the Company or any of the Guarantors is a party or by
which the Company or any of the Guarantors is bound or to which any
of the properties of the Company or any of the Guarantors is
subject, or (iv) the charter, by laws or other organizational
documents of the Company or any of the Guarantors, except, in the
case of clauses (i) and (iii), where such breach, violation or
default would not individually or in the aggregate have a Material
Adverse Effect, and the Company and each Guarantor, as the case may
be, has full power and authority to authorize, issue and sell the
Offered Securities with the Guarantees endorsed thereon as
contemplated by this Agreement. |
| |
| |
(o) This
Agreement has been duly authorized, executed and delivered by the
Company and each Guarantor. |
| |
| |
(p) The
Registration Rights Agreement has been duly authorized by the
Company and each of the Guarantors and, on the Closing Date, will
have been duly executed and delivered by the Company and each of
the Guarantors. When the Registration Rights Agreement has been
duly executed and delivered, the Registration Rights Agreement will
be a valid and legally binding obligation of the Company and each
of the Guarantors, enforceable against the Company and each
Guarantor in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, receivership,
moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles
whether arising in a court of equity or law. On the Closing Date,
the Registration Rights Agreement will conform in all material
respects as to legal matters to the description thereof in the
Offering Document. |
| |
| |
(q) Except as
disclosed in the Offering Document, the Company, the Guarantors and
their subsidiaries have good and marketable title to all real
properties and all other properties and assets owned |
4
|
|
| |
by them, in each case free from liens,
encumbrances and defects that would affect the value thereof or
interfere with the use made or to be made thereof by them except as
could not reasonably be expected to have individually or in the
aggregate a Material Adverse Effect; and except as disclosed in the
Offering Document, the Company, the Guarantors and their
subsidiaries hold any leased real or personal property under valid
and enforceable leases with no exceptions that would interfere with
the use made or to be made thereof by them except as could not
reasonably be expected to have individually or in the aggregate a
Material Adverse Effect. |
| |
| |
(r) The
Company, the Guarantors and their subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business
now operated by them and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to
them, would individually or in the aggregate have a Material
Adverse Effect. |
| |
| |
(s) No labor
dispute with the employees of the Company, any of the Guarantors or
any of their subsidiaries exists or, to the knowledge of the
Company, any of the Guarantors or any of their subsidiaries, is
imminent that might have a Material Adverse Effect. |
| |
| |
(t) None of
the Company, any of the Guarantors or any of their subsidiaries is
in violation or default of (i) any provision of its respective
charter, by laws or other organizational documents, (ii) the
terms of any obligation, agreement, covenant or condition contained
in any indenture, loan agreement, mortgage, lease or other
agreement or instrument to which the Company, any of the Guarantors
or any of their subsidiaries is a party or by which the Company,
any of the Guarantors, any of their subsidiaries or any of their
respective property is bound or (iii) any statute, rule,
regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company,
any of the Guarantors, any of their subsidiaries or any of their
respective properties except, in the case of clauses (ii) and
(iii), as would not individually or in the aggregate have a
Material Adverse Effect. |
| |
| |
(u) Except as
disclosed in the Offering Document, there are no contracts,
agreements or understandings between the Company, any of the
Guarantors or any of their subsidiaries and any person or entity
granting such person or entity the right to require the Company or
any such Guarantor or any of their subsidiaries to file a
registration statement under the Securities Act with respect to any
securities of the Company or any such Guarantor or any of their
subsidiaries or to require the Company or any such Guarantor or any
of their subsidiaries to include such securities with the Exchange
Securities with respect to any registration statement filed with
the Commission. |
| |
| |
(v) No
“nationally recognized statistical rating organization”
as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act (i) has imposed (or has informed the
Company, any of the Guarantors or any of their subsidiaries that it
is considering imposing) any condition (financial or otherwise) on
the Company’s, any of the Guarantors’ or any of their
subsidiaries’ retaining any rating assigned to them or any of
their respective securities or (ii) has indicated to the
Company, any of the Guarantors or any of their subsidiaries that it
is considering (a) the downgrading, suspension or withdrawal
of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or
(b) any change in the outlook for any rating of the Company,
any of the Guarantors or any of their subsidiaries or any of their
respective securities. |
| |
| |
(w) The
Company, the Guarantors and their subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know how, patents, copyrights,
confidential information and other intellectual property
(collectively, “intellectual property rights” )
necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined
adversely to the Company, any of the Guarantors or any of their
subsidiaries, would individually or in the aggregate have a
Material Adverse Effect. |
| |
| |
(x) Except as
disclosed in the Offering Document, none of the Company, any of the
Guarantors or any of their subsidiaries is in violation of any
statute, rule, regulation, decision or order of any |
5
|
|
| |
governmental agency or body or any court, domestic
or foreign, relating to the use, disposal or release of hazardous
or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, “environmental laws” ), owns or
operates any real property contaminated with any substance that is
subject to any environmental laws, is liable for any off site
disposal or contamination pursuant to any environmental laws or is
subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or
in the aggregate have a Material Adverse Effect; and none of the
Company, any of the Guarantors or any of their subsidiaries is
aware of any pending investigation which might lead to such a
claim. |
| |
| |
(y) Except as
disclosed in the Offering Document, there are no pending actions,
suits or proceedings against or affecting the Company, any of the
Guarantors, any of their subsidiaries or any of their respective
properties that, if determined adversely to the Company, any of the
Guarantors or any of their subsidiaries, would individually or in
the aggregate have a Material Adverse Effect, or would materially
and adversely affect the ability of the Company, any of the
Guarantors or any of their subsidiaries to perform their respective
obligations under this Agreement, the Indenture, the Pledge
Agreements or the Registration Rights Agreement, or which are
otherwise material in the context of the sale of the Offered
Securities and the issuance of the Guarantees; and no such actions,
suits or proceedings are, to the Company’s, any of the
Guarantors’ or any of their subsidiaries’ knowledge,
threatened or contemplated. |
| |
| |
(z) The
financial statements included in the Offering Document present
fairly the financial position of the Company and its consolidated
subsidiaries (including the Subsidiary Guarantors) as of the dates
shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in
conformity with generally accepted accounting principles in the
United States applied on a consistent basis. |
| |
| |
(aa) Except as
disclosed in the Offering Document, since the date of the latest
audited financial statements included in the Offering Document
there has been no material adverse change in the condition
(financial or other), business, properties or results of operations
of the Company and its subsidiaries (including the Subsidiary
Guarantors) taken as a whole (“Material Adverse
Change” ), nor any development or event involving a
prospective Material Adverse Change, and, except as disclosed in or
contemplated by the Offering Document, there has been no dividend
or distribution of any kind declared, paid or made by the Company
or any of its subsidiaries on any class of their respective capital
stock. |
| |
| |
(bb) The
Company is subject to the reporting requirements of either
Section 13 or Section 15(d) of the Exchange Act and files
reports with the Commission on the Electronic Data Gathering,
Analysis, and Retrieval (EDGAR) system. |
| |
| |
(cc) The
Company maintains and will maintain disclosure controls and
procedures (as defined as Rule 13a-14 of the Exchange Act)
designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the Exchange
Act is recorded, processed, summarized and reported in accordance
with the Exchange Act and the rules and regulations thereunder. The
Company has carried out and will carry out evaluations, under the
supervision and with the participation of the Company’s
management, of the effectiveness of the design and operation of the
Company’s disclosure controls and procedures in accordance
with Rule 13a-15 of the Exchange Act. |
| |
| |
(dd) There is
and has been no failure on the part of the Company or any of its
directors or officers, in their capacities as such, to comply in
any material respect with any provision of the Sarbanes-Oxley Act
of 2002 and the rules and regulations promulgated in connection
therewith. |
| |
| |
(ee) None of
the Company, any of the Guarantors or any of their subsidiaries is
an open-end investment company, unit investment trust or
face-amount certificate company that is or is required to be
registered under Section 8 of the United States Investment
Company Act of 1940, as amended (the “Investment Company
Act” ); and none of the Company, any of the Guarantors or
any of their subsidiaries is and, after giving effect to the
offering and sale of the Offered Securities and the issuance of the
Guarantees and the application of the proceeds of the sale of the
Offered Securities with the |
6
|
|
| |
Guarantees endorsed thereon as described in the
Offering Document, will be an “investment company” as
defined in the Investment Company Act. |
| |
| |
(ff) No
securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered
Securities are listed on any national securities exchange
registered under Section 6 of the Exchange Act or quoted on a
U.S. automated inter dealer quotation system. |
| |
| |
(gg) None of
the Company, any of the Guarantors, any of their subsidiaries or
any agent thereof acting on the behalf of them has taken, and none
of them will take, any action that might cause this Agreement or
the issuance or sale of the Offered Securities with the Guarantees
endorsed thereon to violate Regulation T, Regulation U or
Regulation X of the Board of Governors of the Federal Reserve
System. |
| |
| |
(hh) The offer
and sale of the Offered Securities by the Company and the issuance
of the Guarantees by each of the Guarantors to the Purchaser in the
manner contemplated by this Agreement will be exempt from the
registration requirements of the Securities Act by reason of
Section 4(2) thereof or Regulation S thereunder; and it
is not necessary in connection with such offer or sale to qualify
an indenture in respect of the Offered Securities under the United
States Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act” ). |
| |
| |
(ii) The
Indenture conforms and has been qualified in all material respects
to the requirements of the Trust Indenture Act, and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder. |
| |
| |
(jj) Neither
the Company, nor any of its affiliates (including the Guarantors),
nor any person acting on its or their behalf (other than the
Purchaser, as to whom the Company and its subsidiaries make no
representation) (i) has within the six-month period prior to
the date hereof, offered or sold in the United States or to any
U.S. person (as such terms are defined in Regulations S under
the Securities Act) the Offered Securities or any security of the
same class or series as the Offered Securities or (ii) has
offered or will offer or sell the Offered Securities (A) in
the United States by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) under
the Securities Act or (B) with respect to any securities sold
in reliance on Rule 903 of Regulation S, by means of any
directed selling efforts within the meaning of Rule 902(c) of
Regulation S. The Company, its affiliates (including the
Guarantors) and any person acting on its or their behalf (other
than the Purchaser, as to whom the Company and its subsidiaries
make no representation) have complied and will comply with the
offering restrictions requirements of Regulation S. None of
the Company, its affiliates (including the Guarantors) and any
person acting on its or their behalf (other than the Purchaser, as
to whom the Company and its subsidiaries make no representation)
has engaged or will engage in any directed selling efforts with the
meaning of Regulation S with respect to the Offered Securities
or the Guarantees. None of the Company, any of the Guarantors or
any of their subsidiaries has entered or will enter into any
contractual arrangement with respect to the distribution of the
Offered Securities except for this Agreement. |
| |
| |
(kk) The
Offered Securities offered and sold in reliance on
Regulation S have been and will be offered and sold only in
offshore transactions. |
| |
| |
(ll) The sale
of the Offered Securities pursuant to Regulation S is not part
of a plan or scheme to evade the registration provisions of the
Securities Act. |
| |
| |
(mm) The
Intercreditor Agreement, dated as of November 13, 2003, as
amended by that certain First Amendment to Intercreditor Agreement,
dated as of April 12, 2004 (the “Intercreditor
Agreement” ), between Wells Fargo Bank, National
Association, as Administrative Agent and Bailee (as defined
therein), and the Trustee, has been duly authorized, executed and
delivered by the Company and each Guarantor. |
3. Purchase, Sale and
Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company
agrees to sell to the Purchaser, and the Purchaser agrees to
purchase from the Company, at a purchase price of
7
100.9625% of the
principal amount thereof plus accrued interest from May 15,
2005 to the Closing Date (exclusive of the Closing Date), the
Offered Securities.
The Company will deliver against
payment of the purchase price the Offered Securities, with the
Guarantees endorsed thereon, to be purchased by the Purchaser
hereunder and to be offered and sold by the Purchaser in reliance
on Regulation S (the “Regulation S
Securities” ) in the form of one or more permanent global
securities in registered form without interest coupons (the
“Regulation S Global Securities” ) which
will be deposited with the Trustee as custodian for The Depository
Trust Company (“DTC” ) for the respective
accounts of the DTC participants for Euroclear Bank S.A./ N.V., as
operator of the Euroclear System (“Euroclear” ),
and Clearstream Banking, société anonyme
(“Clearstream, Luxembourg” ) and registered in
the name of Cede & Co., as nominee for DTC. Interests in
any permanent global securities will be held only in book entry
form through DTC, except in the limited circumstances described in
the Offering Document. The Company will deliver against payment of
the purchase price the Offered Securities, with the Guarantees
endorsed thereon, to be purchased by the Purchaser hereunder and to
be offered and sold by the Purchaser in reliance on Rule 144A
under the Securities Act (the “ 144A Securities”
) in the form of one or more permanent global
|
