Attached files
file | filename |
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10-Q - FORM 10-Q - DFC GLOBAL CORP. | w82723e10vq.htm |
EX-4.1 - EX-4.1 - DFC GLOBAL CORP. | w82723exv4w1.htm |
EX-32.3 - EX-32.3 - DFC GLOBAL CORP. | w82723exv32w3.htm |
EX-32.1 - EX-32.1 - DFC GLOBAL CORP. | w82723exv32w1.htm |
EX-32.2 - EX-32.2 - DFC GLOBAL CORP. | w82723exv32w2.htm |
EX-31.1 - EX-31.1 - DFC GLOBAL CORP. | w82723exv31w1.htm |
EX-31.3 - EX-31.3 - DFC GLOBAL CORP. | w82723exv31w3.htm |
EX-31.2 - EX-31.2 - DFC GLOBAL CORP. | w82723exv31w2.htm |
Exhibit 4.2
GUARANTEE
The undersigned Guarantor hereby, jointly and severally with each of the other Guarantors,
unconditionally Guarantees to each Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and their successors and assigns, irrespective of the validity and enforceability of
the Indenture, the Notes or the obligations of the Issuer thereunder, that: (a) the principal of
and premium, if any, and interest, including Additional Interest, if any, on the Notes shall be
promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on premium, if any, and interest,
including Additional Interest, if any, if lawful, and all other obligations of the Issuer to the
Holders or the Trustee thereunder shall be promptly paid in full or performed, all in accordance
with the terms thereof; and (b) in case of any extension of time of payment or renewal of any Notes
or any of such other obligations, that the same shall be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by
acceleration, redemption or otherwise. Failing payment when due of any amount so Guaranteed or any
performance so Guaranteed for whatever reason, the undersigned Guarantor shall be, jointly and
severally with each of the other Guarantors, obligated to pay the same immediately. The undersigned
Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder with respect to any provisions thereof, the
recovery of any judgment against the Issuer or any Guarantor, any action to enforce the same or any
other circumstance which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. The undersigned Guarantor hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to
require a proceeding first against the Issuer or another Guarantor, protest, notice and all demands
whatsoever and covenant that this Note Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the Indenture. If any Holder or the
Trustee is required by any court or otherwise to return to the Issuer or any of the Guarantors, or
any Custodian or other similar official acting in relation to either the Issuer or any of the
Guarantors, any amount paid either to the Trustee or to such Holder, this Note Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect. The undersigned
Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the
Holders of Notes in respect of any obligations Guaranteed hereby until payment in full of all
obligations Guaranteed hereby. The undersigned Guarantor further agrees that, as between the
Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity
of the obligations Guaranteed hereby may be accelerated as provided in Article Seven of the
Indenture for purposes of this Note Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations Guaranteed hereby and (y) in
the event of any declaration of acceleration of such obligations as provided in Article Seven of
the Indenture, such obligations (whether or not due and payable) shall forthwith become due and
payable by the undersigned Guarantors for the purpose of this Note Guarantee. The undersigned
Guarantor shall have the right to seek contribution from any non-paying Guarantor so long as the
exercise of such right does not impair the rights of the Trustee or the Holders under this Note
Guarantee or the Indenture.
THE OBLIGATIONS OF THE UNDERSIGNED GUARANTOR TO THE HOLDERS AND TO THE TRUSTEE PURSUANT TO
THIS NOTE GUARANTEE AND THE INDENTURE ARE EXPRESSLY SET FORTH IN ARTICLE ELEVEN OF THE INDENTURE,
AND REFERENCE IS HEREBY MADE TO SUCH INDENTURE FOR THE PRECISE TERMS OF THIS GUARANTEE. THE TERMS
OF ARTICLE ELEVEN OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE.
This is a continuing Guarantee and shall remain in full force and effect and shall be binding
upon the undersigned Guarantor and its respective successors and assigns to the extent set forth in
the Indenture until full and final payment of all of the Issuers obligations under the Notes and
the Indenture and shall inure to the benefit of the Trustee and the Holders and their successors
and assigns and, in the event of any transfer or assignment of rights by any Holder or the Trustee,
the rights and privileges herein conferred upon that party shall automatically extend to and be
vested in such transferee or assignee, all subject to the
terms and conditions hereof. Notwithstanding the foregoing, if the undersigned Guarantor
satisfies the provisions of Section 11.03 of the Indenture, it shall automatically be released of
its obligations hereunder without the necessity of any action being taken by any Person and
regardless of whether this Guarantee is amended to reflect such release. This is a Guarantee of
payment and not a guarantee of collection.
For purposes hereof, the undersigned Guarantors liability shall be that amount from time to
time equal to the aggregate liability of such Guarantor under this Note Guarantee, but shall be
limited to the lesser of (a) the aggregate amount of the obligations of the Issuer under the Notes
and the Indenture and (b) the amount, if any, which would not have (A) rendered such Guarantor
"insolvent (as such term is defined in the federal Bankruptcy Law and in the Debtor and Creditor
Law of the State of New York), (B) left it with unreasonably small capital at the time this Note
Guarantee was entered into, or at the time the undersigned Guarantor Incurred liability hereunder,
after giving effect to the Incurrence of existing Indebtedness immediately prior to such time or
(C) left such Guarantor with debts beyond its ability to pay as such debts mature; provided that,
it shall be a presumption in any lawsuit or other proceeding in which such Guarantor is a party
that the amount Guaranteed pursuant to its Note Guarantee is the amount set forth in subsection (a)
above unless any creditor, or representative of creditors of such Guarantor, or debtor in
possession or trustee in bankruptcy of such Guarantor, otherwise proves in such a lawsuit or other
proceeding that the aggregate liability of such Guarantor is limited to the amount set forth in
subsection (b). In making any determination as to the solvency or sufficiency of capital of the
undersigned Guarantor in accordance with the previous sentence, the right of such Guarantor to
contribution from other Guarantors and any other rights such Guarantor may have, contractual or
otherwise, shall be taken into account.
The undersigned Guarantor hereby certifies and warrants that all acts, conditions and things
required to be done and performed and to have happened precedent to the creation and issuance of
this Note Guarantee and to constitute the valid obligation of such Guarantor have been done and
performed and have happened in due compliance with all applicable laws.
The terms of this Guarantee shall be governed by and construed in accordance with the laws of
the State of New York without regard to the conflict of laws principles thereof.
Capitalized terms used herein have the same meanings given in the Indenture, dated as of
December 23, 2009 (the Indenture), among National Money Mart Company (the Issuer), the
Guarantors (as defined therein) and U.S. Bank National Association, as Trustee, unless otherwise
indicated.
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Dated: February 25, 2011
DOLLAR FINANCIAL U.S., INC. |
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By: | /s/ Roy W. Hibberd | |||
Name: | Roy W. Hibberd | |||
Title: | Secretary |
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