EXHIBIT 10.8
ASSET PURCHASE AGREEMENT
BY AND AMONG
FINANCIAL EXCHANGE COMPANY OF OHIO, INC.,
AS PURCHASER,
ABC CHECK CASHING, INC.,
AS SELLER
AND
ED KOWIT,
AS SHAREHOLDER
Dated as of August 28, 1996
TABLE OF CONTENTS
Section Page
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ARTICLE I
SALE AND PURCHASE OF ASSETS
1.1 Sale and Purchase of Assets . . . . . . . . . . . . . 1
1.2 Assets . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Excluded Assets . . . . . . . . . . . . . . . . . . . 3
1.4 Liens . . . . . . . . . . . . . . . . . . . . . . . . 4
1.5 Liabilities . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II
PURCHASE PRICE AND PAYMENT
2.1 Amount of Purchase Price . . . . . . . . . . . . . . 5
2.2 Payment of Purchase Price . . . . . . . . . . . . . . 5
2.3 Certification of Amount of Cash on Hand . . . . . . . 5
ARTICLE III
CLOSING
3.1 Closing Date . . . . . . . . . . . . . . . . . . . . 6
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ABC AND THE SHAREHOLDER
4.1 Organization and Good Standing . . . . . . . . . . . 6
4.2 Authorization of Agreement . . . . . . . . . . . . . 6
4.3 Capitalization . . . . . . . . . . . . . . . . . . . 7
4.4 Subsidiaries and Other Interests . . . . . . . . . . 7
4.5 Corporate Records . . . . . . . . . . . . . . . . . . 7
4.6 Conflicts; Consents of Third Parties . . . . . . . . 7
4.7 Ownership and Transfer of Assets . . . . . . . . . . 8
4.8 Financial Statements . . . . . . . . . . . . . . . . 8
4.9 No Undisclosed Liabilities . . . . . . . . . . . . . 8
4.10 Absence of Certain Developments . . . . . . . . . . . 8
4.11 Taxes . . . . . . . . . . . . . . . . . . . . . . . . 10
4.12 Real Property . . . . . . . . . . . . . . . . . . . . 12
4.13 Tangible Personal Property . . . . . . . . . . . . . 13
4.14 Intangible Property . . . . . . . . . . . . . . . . . 13
4.15 Material Contracts . . . . . . . . . . . . . . . . . 14
4.16 Employee Benefits . . . . . . . . . . . . . . . . . . 15
4.17 Labor . . . . . . . . . . . . . . . . . . . . . . . . 15
4.18 Litigation . . . . . . . . . . . . . . . . . . . . . 15
4.19 Compliance with Laws . . . . . . . . . . . . . . . . 16
4.20 Environmental Matters . . . . . . . . . . . . . . . . 16
4.21 Insurance . . . . . . . . . . . . . . . . . . . . . . 17
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4.22Payables 17
4.23 Related Party Transactions . . . . . . . . . . . . . 17
4.24 ADA Matters . . . . . . . . . . . . . . . . . . . . . 17
4.25 Banks . . . . . . . . . . . . . . . . . . . . . . . . 18
4.26 No Misrepresentation . . . . . . . . . . . . . . . . 18
4.27 Financial Advisors . . . . . . . . . . . . . . . . . 18
4.28 ABC's Solvency and Obligations . . . . . . . . . . . 18
4.29 Name . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
5.1 Organization and Good Standing . . . . . . . . . . . 19
5.2 Authorization of Agreement . . . . . . . . . . . . . 19
5.3 Conflicts; Consents of Third Parties . . . . . . . . 19
5.4 Litigation . . . . . . . . . . . . . . . . . . . . . 20
5.5 Financial Advisors . . . . . . . . . . . . . . . . . 20
5.6 Purchaser's Solvency and Obligations . . . . . . . . 20
5.7 Purchaser's Group Medical Plans . . . . . . . . . . . 21
ARTICLE VI
COVENANTS
6.1 Effect of Investigation . . . . . . . . . . . . . . . 21
6.2 Consents . . . . . . . . . . . . . . . . . . . . . . 21
6.3 Preservation of Records . . . . . . . . . . . . . . . 21
6.4 Publicity . . . . . . . . . . . . . . . . . . . . . . 22
6.5 Use of Name . . . . . . . . . . . . . . . . . . . . . 22
6.6 Environmental Matters . . . . . . . . . . . . . . . . 22
6.7 Noncompetition Agreements . . . . . . . . . . . . . . 22
6.8 Employee Benefits and Employment . . . . . . . . . . 23
6.9 Tax Matters . . . . . . . . . . . . . . . . . . . . . 24
6.10 Consents to Lease of Bedford Property . . . . . . . . 25
ARTICLE VII
CONDITIONS TO CLOSING
7.1 Conditions Precedent to Obligations of Purchaser . . 25
7.2 Conditions Precedent to Obligations of ABC. . . . . 26
ARTICLE VIII
DOCUMENTS TO BE DELIVERED
8.1 Documents to be Delivered by ABC . . . . . . . . . . 26
8.2 Documents to be Delivered by the Purchaser . . . . . 28
ARTICLE IX
INDEMNIFICATION
9.1 Survival . . . . . . . . . . . . . . . . . . . . . . 28
Section Page
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9.2 General Indemnification . . . . . . . . . . . . . . . 29
9.3 Limitations on Indemnification for Breaches of
Representations and Warranties . . . . . . . . . . . 30
9.4 Indemnification Procedures . . . . . . . . . . . . . 31
9.5 Tax Matters . . . . . . . . . . . . . . . . . . . . . 33
9.6 Employee Benefits and Labor Indemnity . . . . . . . . 33
9.7 Treatment of Payment . . . . . . . . . . . . . . . . 34
ARTICLE X
MISCELLANEOUS
10.1 Certain Definitions . . . . . . . . . . . . . . . . . 34
10.2 Expenses . . . . . . . . . . . . . . . . . . . . . . 40
10.3 Specific Performance . . . . . . . . . . . . . . . . 40
10.4 Further Assurances . . . . . . . . . . . . . . . . . 40
10.5 Submission to Jurisdiction; Consent to Service of
Process . . . . . . . . . . . . . . . . . . . . . . . 40
10.6 Entire Agreement; Amendments and Waivers . . . . . . 41
10.7 Governing Law . . . . . . . . . . . . . . . . . . . . 41
10.8 Table of Contents and Headings . . . . . . . . . . . 41
10.9 Notices . . . . . . . . . . . . . . . . . . . . . . . 41
10.10 Severability . . . . . . . . . . . . . . . . . . . . 42
10.11 Binding Effect; Assignment . . . . . . . . . . . . . 43
10.12 Bulk Transfer Laws . . . . . . . . . . . . . . . . . 43
10.13 Counterparts . . . . . . . . . . . . . . . . . . . . 43
SCHEDULES AND EXHIBITS
Schedule I - List of Stores
Schedule 1.3 - Excluded Store
Schedule 1.5(b)- Agreed Prepaid Expenses
Schedule 4.6 - Conflicts
Schedule 4.9 - Undisclosed Liabilities
Schedule 4.10 - Certain Developments
Schedule 4.12(a)(1)- List of Company Properties
Schedule 4.12(a)(2)- Compliance Exceptions
Schedule 4.12(a)(3)- Property Contracts
Schedule 4.13 - Personal Property Leases
Schedule 4.14 - Intangibles
Schedule 4.15 - Material Contracts
Schedule 4.16(a)- Employee Benefits
Schedule 4.18 - Litigation
Schedule 4.19 - License Revocation Proceedings
Schedule 4.20 - Environmental
Schedule 4.21 - Insurance
Schedule 4.23 - Related Party Transactions
Schedule 4.25 - Bank Accounts
Schedule 4.27 - Financial Advisors
Schedule 5.3 - Conflicts/Consents
Schedule 6.9 - Allocation of Purchase Price
Exhibit A-1 - Form of Noncompetition Agreement (Shareholder
and ABC)
Exhibit A-2 - Form of Noncompetition Agreement (Credit One
and Quick Tax)
Exhibit B - Form of Legal Opinion (Seller)
Exhibit C - Form of Legal Opinion (Buyer)
Exhibit D - Form of Escrow Agreement
Exhibit E - Form of License Agreement
Exhibit F-1 - Form of Lease Assignment and Assumption
Agreement (Affiliate Leases)
Exhibit F-2 - Form of Lease Assignment and Assumption
Agreement (Non-Affiliate Leases)
Exhibit G - Form of Assumption Agreement
Exhibit H - Form of Bill of Sale and Assignment of
Contracts
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT, dated as of August 28, 1996
(the "Agreement"), by and among Financial Exchange Company of Ohio,
Inc., an Ohio corporation (the "Purchaser"), ABC Check Cashing, Inc.,
an Ohio corporation ("ABC" or the "Company"), and Ed Kowit (the
"Shareholder").
W I T N E S S E T H:
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WHEREAS, ABC presently owns and operates those fifteen (15)
check cashing stores located in the State of Ohio as listed on
Schedule I (collectively, the "Stores");
WHEREAS, the Shareholder owns all of the issued and
outstanding capital stock of the Company;
WHEREAS, Purchaser is an indirectly wholly-owned subsidiary
of DFG Holdings, Inc.;
WHEREAS, Purchaser desires to purchase from ABC and ABC
desires to sell to Purchaser the Assets (as such term is defined in
Section 1.1) for the purchase price and upon the terms and conditions
hereinafter set forth;
WHEREAS, Purchaser desires that, effective upon the Closing
Date, the Shareholder, ABC and certain other companies that are 50%
owned by the Shareholder will agree not to compete with Purchaser or
any of its affiliates pursuant to Noncompetition Agreements to be
entered into on the Closing Date in the forms set forth on
Exhibits A-1 and A-2 hereto; and
WHEREAS, certain terms used in this Agreement are defined in
Section 10.1;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter contained, the parties
hereby agree as follows:
ARTICLE I
SALE AND PURCHASE OF ASSETS
1.1 Sale and Purchase of Assets. Upon the terms and
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subject to the conditions contained herein, on the Closing Date, ABC
shall sell, assign, transfer, convey and deliver to the Purchaser (or
its designees) good and marketable title, free and clear of all Liens
(other than Permitted Exceptions), and the
Purchaser shall purchase from ABC, all of the assets, properties,
good-will, rights and business of ABC of any nature whatsoever
(whether real or personal, tangible or intangible or otherwise) other
than the Excluded Assets (collectively, the "Assets").
In addition, the Shareholder and ABC agree to provide, or
cause to be provided, to Purchaser access to all documents and/or
information as may be reasonably necessary to enable Purchaser to see
to the efficient and proper conduct and administration of the Assets
from and after the Closing Date, including, without limitation, all
historical files, Tax Returns, records and personnel data in
connection with the Stores.
1.2 Assets. Without limiting the foregoing, ABC agrees
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that, at the time of Closing, all of the properties, business, rights,
good-will and assets of ABC (including all properties, business,
rights, good-will and assets used or useable in the operation of the
Stores), other than the Excluded Assets, including, but not limited
to, the following, shall be included in the Assets and shall be
transferred to the Purchaser (or its designees), free and clear of all
Liens, except for the Permitted Exceptions:
(a) Licenses and Authorizations. All authorizations,
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approvals, orders, licenses, franchises, certificates and permits (to
the extent transferable) (collectively, "Licenses") of and from all
Governmental Bodies necessary to own or lease the properties and
assets used or useable in the operation of the Stores, together with
any renewals, extensions or modifications thereof and additions
thereto and other pending applications or applications filed with any
Governmental Body.
(b) Personal Property, etc. All tangible and intangible
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personal property, equipment, machinery, furniture, fixtures, tools,
computer hardware, supplies and other assets, wherever located, used
or useable in the operation of the Stores.
(c) Real Property. The interest of ABC in and to all
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leased real property, buildings and structures, leasehold
improvements, fixtures and appurtenances used or useable in the
operation of the Stores (including all Company Properties) and ABC's
interests and rights arising under all agreements, rights and
appurtenances relating thereto (including all Real Property Leases)
and any renewals, extensions, amendments or modifications thereof.
(d) Leases and Agreements. The rights of ABC arising under
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all contracts and agreements to which it is a party, including any
renewals, extensions, amendments or modifications thereof (including,
without limitation, the Assumed Contracts).
(e) Intellectual Property, etc. All copyrights,
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trademarks, service marks, trade secret rights, computer programs and
software, permits, licenses or other similar rights used or useable in
the operation of the Stores, including, specifically, the tradenames
enumerated on Schedule 4.14 hereof, as well as all other copyrights,
trademarks, service marks, trade secret rights, computer programs and
software, permits, licenses or other similar rights utilized in the
operation of the Stores.
(f) Books and Records. All books, records and files
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pertaining to the business conducted by any of the Stores for all
periods ending on or before the Closing Date.
(g) Prepaid Expenses. Security deposits and other prepaid
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expenses of ABC relating to the operation or ownership of the Stores,
including, but not limited to, Taxes, rent, and licenses, postage, and
any other prepaid assets or deposits relating to the operation or
ownership of the Stores.
(h) Customer Lists. Customer lists, vendor lists and other
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intangible assets of ABC.
(i) Cash On Hand. All Cash on Hand.
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The term "computer programs and software" as used in subparagraph
(e) above shall include, without limitation, all point-of-sale ("POS")
software developed and/or owned by ABC.
1.3 Excluded Assets. It is agreed that, other than cash
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physically located in the Stores at the opening of business on the
Closing Date (the "Cash on Hand"), (a) any cash, savings accounts,
checks returned unpaid, accounts receivable, refunds of unearned
insurance premiums, bank deposits and items in the process of
collection held by ABC, (b) the real property owned by ABC in Lorain,
Ohio and located at 2193 North Ridge Rd., Lorain, Ohio, (c) the two
season tickets to the Cleveland Cavalier basketball team owned by ABC,
(d) ABC's minute books, other similar corporate records and stock
register, (e) the store listed on Schedule 1.3 hereto and (f) any
payroll advances or other loans against future wages made by ABC to
any of its employees (collectively, the "Excluded Assets") shall not
constitute part of the Assets. Such Excluded Assets shall be retained
by ABC and shall not be transferred to the Purchaser at Closing.
Solely as an accommodation to ABC, Purchaser shall, during the 60-day
period following the Closing Date, attempt to collect (at the sole
cost and expense of ABC) ABC's outstanding accounts receivable and
other items in the process of collection as of the Closing Date (all
to the extent arising in the ordinary course of business of ABC) and
will remit to ABC any amounts so collected (net of expenses, including
reasonable attorneys' fees); provided that (i) ABC shall promptly pay
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to Purchaser (or Purchaser may retain from
such proceeds) an amount equal to 10% of all amounts collected, (ii)
Purchaser shall not be obligated to institute litigation or any
proceedings to collect such amounts and (iii) ABC shall reimburse
Purchaser immediately upon demand for any and all expenses of
Purchaser (including, without limitation, reasonable attorneys' fees
and expenses) to the extent Purchaser shall not therefore have
reimbursed itself out of amounts collected by Purchaser as described
above. Purchaser shall have no affirmative duty to collect any of
such items.
1.4 Liens. ABC agrees that, as of Closing, the Assets will
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be free and clear of all Liens except for the Permitted Exceptions and
specifically agrees that all such Liens, other than the Permitted
Exceptions, shall be satisfied prior to the consummation of the
Closing.
1.5 Liabilities.
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(a) Upon the terms and subject to the conditions of this
Agreement, at the Closing Purchaser will assume and agree to perform
and discharge the obligations of ABC under and pursuant to the Assumed
Contracts, but only to the extent that such obligations arise and
accrue after the Closing Date (excluding, however, those obligations
that either arise out of or would have been satisfied prior to the
Closing but for a breach or default by ABC) (collectively, the
"Assumed Liabilities"). The Purchaser shall not assume, and shall not
be deemed to have assumed, any Excluded Liabilities.
(b) Apportionments. Rents, additional rent, real estate
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taxes, personal property taxes, water, utilities, and benefits under
any Employee Benefit Plan (including accrued vacation and holidays)
(the "Expenses") to the extent constituting Agreed Prepaid Expenses
that are (i) paid by, or on behalf of, ABC on or prior to the Closing
Date and allocable, in whole or in part, to any period following the
Closing Date, shall be credited to ABC to the extent so allocable, or
(ii) unpaid by, or on behalf of ABC on or prior to the Closing Date
and allocable, in whole or in part, to any period prior to the Closing
Date, shall be credited to Purchaser (the "Credited Liabilities"). In
addition, to the extent that, in connection with the assignment of any
real property leases by ABC to Purchaser at the Closing, security
deposits paid thereunder by ABC are to remain in place on and after
Closing, Purchaser shall reimburse ABC for such amounts at Closing.
Schedule 1.5(b) hereto lists the categories of prepaid Expenses of ABC
expected to exist as of Closing (the "Agreed Prepaid Expenses").
Except for Agreed Prepaid Expenses, no other Expenses shall be pro
rated as provided above.
The parties hereto shall make apportionments as provided
above on the Closing Date and corresponding adjustments to the
Purchase Price to the extent possible at that time. However, because
a number of the Agreed Prepaid Expenses will not be readily
determinable until after the Closing Date, final apportionments cannot
be made on that date. Therefore, at such time as ABC and Purchaser
reasonably believe that all of the Agreed Prepaid Expenses are
sufficiently determinable so that charges and credits may be finally
allocated in the manner contemplated by this Section 1.5(b), ABC and
Purchaser shall agree with respect to the allocation of the Agreed
Prepaid Expenses and a further adjustment shall be made between the
parties hereto. To the extent the net effect of such additional
adjustment results in a credit to ABC, Purchaser shall promptly pay
such additional amount to ABC (plus interest on such amount at the
rate of 8% per annum from the Closing Date to the date of payment),
which amount shall be an adjustment to the Purchase Price. To the
extent such net effect results in a credit to Purchaser, ABC and the
Shareholder shall be jointly and severally liable to promptly pay such
additional amount to Purchaser (plus interest on such amount at the
rate of 8% per annum from the Closing Date to the date of payment),
which amount shall be an adjustment to the Purchase Price. In the
event that either party gives the other written notice that a dispute
exists with respect to the apportionment of Agreed Prepaid Expenses
and such dispute is not resolved within 20 days after the other party
receives a copy of such notice of dispute, either party may submit
such dispute to arbitration in Cleveland, Ohio for final resolution in
accordance with the commercial arbitration rules of the American
Arbitration Association then in effect. The determination of such
arbitrators shall be final and binding upon the parties hereto, and
the fees of such arbitrators in connection with the determination
shall be paid by the party against whom the award was made, or if a
compromise was made, shared equally.
ARTICLE II
PURCHASE PRICE AND PAYMENT
2.1 Amount of Purchase Price. The purchase price for the
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Assets and the Assumed Liabilities (the "Purchase Price") shall be an
amount equal to the sum of (i) $6,000,000 plus (ii) the amount of Cash
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on Hand as certified pursuant to the provisions of Section 2.3 below
plus (iii) the allocation between the parties of the Agreed Prepaid
----
Expenses in accordance with Section 1.5 hereof plus (iv) the 1995
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Audit Expense.
2.2 Payment of Purchase Price. ABC acknowledges and agrees
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that the $60,000 deposit previously paid by Purchaser to ABC shall be
credited to, and applied in partial payment of, the Purchase Price.
On the Closing Date, the Purchaser shall pay the balance of the
Purchase Price as follows: (i) $400,000 to Midland
Title Security, Inc. as escrow agent (the "Escrow Agent") under the
Escrow Agreement, and (ii) $5,540,000 plus Cash on Hand plus the
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allocation on the Closing Date of the Agreed Prepaid Expenses plus the
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1995 Audit Expense. All such payments of cash shall be made, if to
ABC, by certified or bank cashier's check in New York Clearing House
Funds, payable to the order of ABC (or, at ABC's option, by wire
transfer of immediately available funds into an account designated by
ABC) and if to the Escrow Agent, by wire transfer of immediately
available funds into an account designated by the Escrow Agent.
2.3 Certification of Amount of Cash on Hand. On the
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Closing Date, ABC shall (i) determine the amount of Cash on Hand as of
the opening of business on the Closing Date at each of the Stores and
(ii) deliver a statement containing such determination to the
Purchaser. ABC shall determine the Cash on Hand by having two
employees at each Store count all Cash on Hand as of the opening of
business at such Store on the Closing Date and transmit such total to
an officer of ABC. Such officer will tally all such amounts and
deliver the statement referred to in clause (ii) above.
ARTICLE III
CLOSING
3.1 Closing Date. Subject to the satisfaction of the
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conditions set forth in Sections 7.1 and 7.2 hereof (or the waiver
thereof by the party entitled to waive that condition), the closing of
the sale and purchase of the Assets provided for in Section 1.1 hereof
(the "Closing") shall take place at 10:00 A.M. at the offices of Weil,
Gotshal & Manges LLP located at 767 Fifth Avenue, New York, New York
10153 (or at such other place as the parties may designate in writing)
on the date hereof, or on such other date as ABC and the Purchaser may
jointly designate in writing. The date on which the Closing is held
is referred to in this Agreement as the "Closing Date".
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ABC AND THE SHAREHOLDER
ABC and the Shareholder hereby jointly and severally
represent and warrant to Purchaser as follows:
4.1 Organization and Good Standing. ABC is a corporation
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duly organized, validly existing and in good standing under the laws
of Ohio and has all requisite corporate power and authority to own,
lease and operate its properties and to carry on
its business as now conducted. ABC is duly qualified or authorized to
do business as a foreign corporation and is in good standing under the
laws of each jurisdiction in which it leases real property and each
other jurisdiction in which the conduct of its business or the
ownership of its properties requires such qualification or authoriza-
tion.
4.2 Authorization of Agreement. ABC and each other party
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hereto (other than Purchaser) has all requisite power, authority and
legal capacity to execute and deliver this Agreement, a Noncompetition
Agreement and each other agreement, document, or instrument or
certificate contemplated by this Agreement or to be executed by such
Person in connection with the consummation of the transactions
contemplated by this Agreement (collectively, the "Seller Documents"),
and to consummate the transactions contemplated hereby and thereby.
This Agreement and each of the Seller Documents have been duly and
validly executed and delivered by ABC and each other party thereto
(other than Purchaser) and (assuming the due authorization, execution
and delivery by Purchaser if a party thereto) this Agreement and each
of the Seller Documents constitute, the legal, valid and binding
obligations of ABC and each other party thereto (other than
Purchaser), enforceable against such Person in accordance with their
respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
4.3 Capitalization.
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(a) The authorized capital stock of ABC consists of 500
shares of common stock, without par value per share (the "Common
Stock"). There are 100 shares of Common Stock issued and outstanding
and 100 shares of Common Stock are held by ABC as treasury stock. All
of the issued and outstanding shares of Common Stock are owned,
beneficially and of record, by the Shareholder.
4.4 Subsidiaries and Other Interests. ABC does not have
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any Subsidiaries and does not own any equity interests in any Person.
4.5 Corporate Records. ABC has delivered to the Purchaser
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true, correct and complete copies of the certificate of incorporation
(certified by the Secretary of State of Ohio) and by-laws (certified
by the secretary, assistant secretary or other appropriate officer) of
ABC.
4.6 Conflicts; Consents of Third Parties.
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(a) None of the execution and delivery by ABC or the
Shareholder of this Agreement and the Seller Documents, the consum-
mation by each of ABC and the Shareholder of the transactions
contemplated hereby and thereby, or compliance by ABC or the
Shareholder with any of the provisions hereof or thereof will (i)
conflict with, or result in the breach of, any provision of the
certificate of incorporation or by-laws of ABC; (ii) except as set
forth on Schedule 4.6, conflict with, violate, result in the breach or
termination of, constitute a default under, or give rise to any right
of acceleration under, any note, bond, mortgage, deed of trust,
indenture, license, lease, agreement or other instrument or obligation
to which ABC or the Shareholder is a party or by which any of them or
any of their respective properties or assets is bound; (iii) violate
any statute, rule, regulation, judgment or Order of any Governmental
Body by which ABC or the Shareholder is bound; or (iv) result in the
creation of any Lien upon the properties or assets of ABC or the
Shareholder.
(b) Except for the consent of the lessor of the Bedford
Property and as set forth in Schedule 4.6, no consent, waiver,
approval, Order, Permit or authorization of, or declaration or filing
with, or notification to, any Person or Governmental Body is required
on the part of ABC or the Shareholder in connection with the execution
and delivery of this Agreement or the Seller Documents, or the
compliance by ABC or the Shareholder, as the case may be, with any of
the provisions hereof or thereof.
4.7 Ownership and Transfer of Assets. ABC is the owner of
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all the Assets, free and clear of any and all Liens (other than
Permitted Exceptions). ABC has the power and authority to sell,
transfer, assign and deliver all such Assets as provided in this
Agreement. Upon the consummation of the Closing, ABC will have
conveyed to Purchaser good and marketable title to all of the Assets,
free and clear of all Liens (other than Permitted Exceptions).
4.8 Financial Statements. ABC has delivered to the
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Purchaser copies of (i) the audited balance sheets of ABC as at
December 31, 1993, 1994 and 1995 and the related audited statements of
income and of cash flows of ABC for the years then ended and (ii) the
unaudited consolidated balance sheet of ABC as at April 30, 1996 and
the related consolidated statement of income and cash flow of ABC for
the period then ended (such audited and unaudited statements,
including the related notes and schedules thereto, are referred to
herein as the "Financial Statements"). Each of the Financial State-
ments is complete and correct in all material respects, has been
prepared in accordance with GAAP (subject to normal year-end
adjustments in the case of the unaudited statements) and in conformity
with the practices consis
tently applied by ABC without modification of the accounting
principles used in the preparation thereof, and presents fairly in
accordance with GAAP the financial position, results of operations and
cash flows of ABC as at the dates and for the periods indicated.
For the purposes hereof, the audited balance sheet of ABC as
at December 31, 1995 is referred to as the "Balance Sheet" and
December 31, 1995 is referred to as the "Balance Sheet Date".
4.9 No Undisclosed Liabilities. Except as set forth on
--------------------------
Schedule 4.9, ABC has no indebtedness, obligations or liabilities of
any kind (whether absolute, contingent or otherwise, and whether due
or to become due) which are not reflected on its Balance Sheet other
than such indebtedness, obligations or liabilities (i) as were
incurred in the ordinary and usual course of business consistent with
its past practices since the Balance Sheet Date, (ii) existing
pursuant to any contract or agreement disclosed on Schedules
4.12(a)(1), 4.12(a)(2), 4.13 or 4.15 (or any contract or agreement not
required to be disclosed thereon because such contract or agreement
was not of the type required to be disclosed thereon) or (iii) which
will be repaid or discharged prior to the Closing.
4.10 Absence of Certain Developments. Except as expressly
-------------------------------
required by this Agreement or as set forth on Schedule 4.10, since the
Balance Sheet Date:
(i) there has not been any Material Adverse Change nor
has there occurred any event which is reasonably likely to result
in a Material Adverse Change;
(ii) there has not been any damage, destruction or
loss, whether or not covered by insurance, with respect to the
property and assets of ABC having a replacement cost of more than
$10,000 for any single loss or $25,000 for all such losses;
(iii) there has not been any declaration, setting
aside or payment of any dividend or other distribution in respect
of any shares of capital stock of ABC or any repurchase, redemp-
tion or other acquisition by ABC of any outstanding shares of
capital stock or other securities of, or other ownership interest
in, ABC;
(iv) ABC has not awarded or paid any bonuses to
employees of ABC with respect to the fiscal year ended December
31, 1995, or entered into any employment, deferred compensation,
severance or similar agreement (nor amended any such agreement)
or agreed to increase the compensation payable or to become
payable by it to any of ABC's directors,
officers, employees, agents or representatives or increased or
agreed to increase the coverage or benefits available under any
severance pay, termination pay, vacation pay, company awards,
salary continuation for disability, sick leave, deferred compen-
sation, bonus or other incentive compensation, insurance, pension
or other employee benefit plan, payment or arrangement made to,
for or with such directors, officers, employees, agents or
representatives (other than normal increases in the ordinary
course of business consistent with past practice and that in the
aggregate have not resulted in a material increase in the
benefits or compensation expense of ABC, including coverage or
contributions required or permitted under the terms of any
Employee Benefit Plan or required under any applicable law, rule
or regulation);
(v) there has not been any change by ABC in accounting
or Tax reporting principles, methods or policies;
(vi) ABC has not entered into any transaction or
Contract or conducted its business other than in the ordinary
course consistent with past practice;
(vii) ABC has not failed to promptly pay and
discharge current liabilities except where disputed in good faith
by appropriate proceedings;
(viii) ABC has not made any loans, advances or
capital contributions to, or investments in, any Person or paid
any fees or expenses to any Affiliate of ABC;
(ix) ABC has not mortgaged, pledged or subjected to any
Lien any of its assets, or acquired any assets or sold, assigned,
transferred, conveyed, leased or otherwise disposed of any
assets, except for assets acquired or sold, assigned,
transferred, conveyed, leased or otherwise disposed of in the
ordinary course of business consistent with past practice;
(x) ABC has not discharged or satisfied any Lien, or
paid any obligation or liability (fixed or contingent), except in
the ordinary course of business consistent with past practice and
which, in the aggregate, would not be material to ABC or which is
permitted or required under the terms of any Employee Benefit
Plan or required under any applicable law, rule, or regulation
and which in the aggregate would not be material to ABC;
(xi) ABC has not canceled or compromised any debt or
claim or amended, canceled, terminated, relinquished, waived or
released any Contract or right except in the
ordinary course of business consistent with past practice and
which, in the aggregate, would not be material to ABC;
(xii) ABC has not made or committed to make any
capital expenditures or capital additions or betterments in
excess of $10,000 individually or $25,000 in the aggregate;
(xiii) ABC has not entered into any transaction,
arrangement or agreement with any of its Affiliates;
(xiv) ABC has not instituted or settled any
material Legal Proceeding; and
(xv) ABC has not agreed to do anything set forth in
this Section 4.10.
4.11 Taxes.
-----
(a) All Tax Returns required to be filed by or with respect
to ABC or its assets have been properly prepared and duly and timely
filed with the appropriate taxing authorities in all jurisdictions in
which such Tax Returns are required to be filed, and all such Tax
Returns are true, complete and correct in all material respects. ABC
has duly and timely paid all Taxes that are due, or claimed or
asserted by any taxing authority to be due, from or with respect to it
for periods covered by such Tax Returns. With respect to any period
for which Tax Returns have not yet been filed, or for which Taxes are
not due or owing, ABC has made sufficient current accruals for such
Taxes in its Financial Statements as of December 31, 1995.
(b) ABC has duly and timely withheld from employee
salaries, wages and other compensation and has paid over to the
appropriate taxing authorities all amounts required to be so withheld
and paid over for all periods under all applicable laws.
(c) There are no outstanding agreements, waivers, or
arrangements extending the statutory period of limitation applicable
to any claim for, or the period for the collection or assessment of,
Taxes due from or with respect to ABC for any taxable period.
(d) All deficiencies asserted or assessments made as a
result of any examinations by the Internal Revenue Service or any
other taxing authority of the Tax Returns of or covering or including
ABC have been fully paid, and there are no other audits or
investigations by any taxing authority in progress, nor has ABC
received any notice from any taxing authority that it intends to
conduct such an audit or investigation.
(e) ABC is not a foreign person within the meaning of
Section 1445 of the Code.
(f) No claim has been made by a taxing authority in a
jurisdiction where ABC does not file Tax Returns such that it is or
may be subject to taxation by that jurisdiction.
(g) No property owned on the Closing Date by ABC will be
required to be treated as being (i) owned by another Person pursuant
to the provisions of Section 168(f)(8) of the Internal Revenue Code of
1954, as amended and in effect immediately prior to the enactment of
the Tax Reform Act of 1986 or (ii) tax-exempt use property within the
meaning of Section 168(h)(1) of the Code.
(h) No property owned on the Closing Date by ABC is subject
to a Section 467 rental agreement.
(i) ABC is not a party to any tax sharing or similar
agreement or arrangement (whether or not written) pursuant to which it
will have any obligation to make any payments after the Closing.
(j) The performance of the transactions contemplated by
this Agreement will not (either alone or upon the occurrence of any
additional or subsequent event) result in any payment that would
constitute an "excess parachute payment" within the meaning of Section
280G of the Code.
(k) There are no liens with respect to Taxes upon any of
the assets of ABC.
(l) ABC has never been a member of an affiliated group of
corporations filing a consolidated, combined or unitary Tax Return.
4.12 Real Property.
-------------
(a) Except for the store location listed on Schedule 1.3,
Schedule 4.12(a)(1) sets forth a complete list of all real property
and interests in real property leased by ABC (individually, a "Real
Property Lease" and the real properties specified in such leases being
referred to herein individually as a "Company Property" and
collectively as the "Company Properties") as lessee or lessor. The
Company Property constitutes all interests in real property currently
used or currently held for use in connection with the business of the
Stores and which are necessary for the continued operation of the
business of the Stores as the business is currently conducted. Except
as set forth on Schedule 4.12(a)(2), to the best of ABC's and/or the
Shareholder's Knowledge, the premises leased pursuant to the Real
Property Leases comply with all building, fire, zoning and other
ordinances
and regulations applicable thereto. ABC has paid all rent, additional
rent and/or other charges reserved and payable under each of the Real
Property Leases to the extent so payable as of the date hereof. ABC
has a valid and enforceable leasehold interest under each of the Real
Property Leases, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and subject, as to enforceability, to
general principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity); ABC has not caused an
event of default or received any written notice of any default or
event that with notice or lapse of time, or both, would constitute a
default by ABC under any of the Real Property Leases; and none of the
landlords in respect of the Real Property Leases has caused an event
of default that with notice or lapse of time, or both, would
constitute a default by any one of such landlords under any of the
Real Property Leases. Except as set forth on Schedule 4.12(a)(3),
there is no management agreement, equipment lease, service contract or
other contract or agreement to which ABC is a party affecting any
Company Property (collectively, "Property Contracts") which (i) was
not made in the ordinary course of business, (ii) is not terminable
upon 30 days' prior notice by ABC without payment of a premium or
penalty or (iii) requires payments in excess of an amount that, if
added to the monthly payment obligations of all other Property
Contracts in respect of such Company Property, would cause the
aggregate amount of all monthly payment obligations in respect of all
Property Contracts for such Company Property to exceed $1,000 with
respect to a Real Property Lease. ABC has delivered to the Purchaser
true, correct and complete copies of the Real Property Leases,
together with all amendments, modifications or supplements, if any,
thereto. ABC presently owns and operates the Stores, which includes
the check cashing stores at the locations set forth on Schedule
4.12(a)(1).
(b) ABC has all certificates of occupancy and Permits of
any Governmental Body necessary or useful for the current use and
operation of each Company Property, and ABC has fully complied with
all material conditions of the Permits applicable to them. No default
or violation, or event that with the lapse of time or giving of notice
or both would become a default or violation, has occurred in the due
observance of any Permit.
(c) There does not exist any actual or, to the best
Knowledge of ABC and/or the Shareholder, threatened or contemplated
condemnation or eminent domain proceedings that affect any Company
Property or any part thereof, and ABC has not received any notice,
oral or written, of the intention of any Governmental Body or other
Person to take or use all or any part thereof.
(d) ABC has not received any written notice from any
insurance company that has issued a policy with respect to any
Company Property requiring performance of any structural or other
repairs or alterations to such Company Property.
(e) ABC does not own or hold, and is not obligated under or
a party to, any option, right of first refusal or other Contract right
to purchase, acquire, sell, assign or dispose of any real estate or
any portion thereof or interest therein.
(f) ABC does not own or hold in fee any real property with
respect to the Stores.
4.13 Tangible Personal Property.
--------------------------
(a) Schedule 4.13 sets forth all leases of personal
property ("Personal Property Leases") relating to personal property
used in the business of ABC or to which ABC is a party or by which the
properties or assets of ABC is bound. ABC has delivered or otherwise
made available to the Purchaser true, correct and complete copies of
the Personal Property Leases, together with all amendments,
modifications or supplements thereto.
(b) ABC has a valid leasehold interest under each of the
Personal Property Leases under which it is a lessee, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and
subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or
in equity), and there is no default under any Personal Property Lease
by ABC, or, to the best Knowledge of ABC and/or the Shareholder, by
any other party thereto, and no event has occurred that with the lapse
of time or the giving of notice or both would constitute a default
thereunder.
(c) ABC has good and marketable title to all of the items
of tangible personal property reflected on its Balance Sheet (except
as sold or disposed of subsequent to the date thereof in the ordinary
course of business consistent with past practice), free and clear of
any and all Liens, other than the Permitted Exceptions.
4.14 Intangible Property. Schedule 4.14 contains a complete
-------------------
and correct list of each patent, trademark, trade name, service mark
and copyright owned or used by ABC as well as all registrations
thereof and pending applications therefor, and each license or other
agreement relating thereto. Except as set forth on Schedule 4.14,
each of the foregoing is owned by the party shown on such Schedule as
owning the same, free and clear of all Liens and is in good standing
and not the subject of any challenge. There have been no claims made
and ABC has not received any notice or otherwise knows or has reason
to believe
that any of the foregoing is invalid or conflicts with the asserted
rights of others. ABC possesses all patents, patent licenses, trade
names, trademarks, service marks, brand marks, brand names,
copyrights, know-how, formulae and other proprietary and trade rights
necessary for the conduct of its business as now conducted, not
subject to any restrictions and without any known conflict with the
rights of others and ABC has not forfeited or otherwise relinquished
any such patent, patent license, trade name, trademark, service mark,
brand mark, brand name, copyright, know-how, formulate or other
proprietary right necessary for the conduct of its business as
conducted on the date hereof. ABC is not under any obligation to pay
any royalties or similar payments in connection with any license to
any Affiliate of ABC.
4.15 Material Contracts. Schedule 4.15 sets forth each of
------------------
the following Contracts to which ABC is a party or by which it is
bound (collectively, the "Material Contracts"): (i) Contracts with
the Shareholder (or any Affiliates of the Shareholder) or any current
or former officer or director of ABC; (ii) Contracts with any labor
union or association representing any employee of ABC; (iii) Contracts
pursuant to which any Person is required to purchase or sell a stated
portion of its requirements or output from or to another Person;
(iv) Contracts for the sale of any of the assets of ABC other than in
the ordinary course of business or for the grant to any Person of any
preferential rights to purchase any of its assets; (v) partnership or
joint venture agreements; (vi) Contracts containing covenants of ABC
or any of its Affiliates not to compete in any line of business or
with any Person in any geographical area or covenants of any other
Person not to compete with ABC in any line of business or in any
geographical area; (vii) Contracts relating to the acquisition by ABC
of any operating business or the capital stock of any other Person;
(viii) Contracts relating to the borrowing of money; or (ix) any other
Contracts, other than Real Property Leases, which involve the
expenditure of more than $15,000 in the aggregate or $5,000 annually
or require performance by any party more than one year from the date
hereof. There have been made available to the Purchaser true and
complete copies of each of the Material Contracts. Except as set
forth on Schedule 4.15, each of the Material Contracts and other
agreements is in full force and effect and is the legal, valid and
binding obligation of each party thereto, enforceable against such
party in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity). Except as
set forth on Schedule 4.15, ABC is not in default in any material
respect under any Material Contracts, nor, to the Knowledge of ABC or
the Shareholder, is any other party to any Material Contract in
default thereunder in any material respect. "Assumed Contracts"
shall include (i) all Real Property Leases, and (ii) the Material
Contracts marked on Schedule 4.15 with an asterisk (*). Any Assumed
Contract to be transferred to Purchaser at Closing may be so
transferred and will not cause a default or violation thereunder.
4.16 Employee Benefits. Schedule 4.16(a) sets forth a
-----------------
complete and correct list of (i) all "employee benefit plans" as
defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), and any other severance pay, vacation
pay, company awards, salary continuation for disability, sick leave,
deferred compensation, bonus or other incentive compensation, stock
purchase arrangements or policies, life insurance, scholarship or
other employee benefit plan, program or arrangement maintained by ABC
or to which ABC has any liability (contingent or otherwise) with
respect to employees, officers, directors or shareholders of ABC
("Employee Benefit Plans"). None of the Employee Benefit Plans
constitutes a multiple employer Plan as defined in Section 4063 and
4064 of ERISA ("Multiple Employer Plans"), (ii) multiemployer plans
(as defined in Section 4001(a)(3) of ERISA) ("Multiemployer Plans") or
(iii) "benefit plans", within the meaning of Section 5000(b)(1) of the
Code providing continuing benefits after the termination of employment
(other than as required by Section 4980B of the Code or Part 6 of
Title I of ERISA and at the former employee's or his beneficiary's
sole expense).
4.17 Labor.
-----
(a) ABC is not party to any labor or collective bargaining
agreement and there are no labor or collective bargaining agreements
which pertain to employees of ABC.
(b) No employees of ABC are represented by any labor
organization. No labor organization or group of employees of ABC has
made a pending demand for recognition, and there are no representation
proceedings or petitions seeking a representation proceeding presently
pending or, to the best Knowledge of ABC or the Shareholder,
threatened to be brought or filed, with the National Labor Relations
Board or other labor relations tribunal. There is no organizing
activity involving ABC pending or, to the best Knowledge of ABC or the
Shareholder, threatened by any labor organization or group of
employees of ABC.
(c) There are no (i) strikes, work stoppages, slowdowns,
lockouts or arbitrations or (ii) material grievances or other labor
disputes pending or, to the best Knowledge of ABC or the Shareholder,
threatened against or involving ABC. There are no unfair labor
practice charges, grievances or complaints pending or, to the best
Knowledge of ABC or the Shareholder, threatened by or on behalf of any
employee or group of employees of ABC.
4.18 Litigation. Except as set forth in Schedule 4.18,
----------
there is no suit, action, proceeding, investigation, claim or order
pending or, to the Knowledge of ABC or the Shareholder, overtly
threatened against ABC (or to the Knowledge of ABC or the Shareholder,
pending or threatened, against any of the officers, directors or key
employees of ABC with respect to their business activities on behalf
of ABC), or to which ABC is otherwise a party, before any court, or
before any governmental department, commission, board, agency, or
instrumentality; nor, to the Knowledge of ABC or the Shareholder, is
there any reasonable basis for any such action, proceeding, or
investigation. ABC is not subject to any judgment, Order or decree of
any court or Governmental Body and ABC is not engaged in any legal
action to recover monies due it or for damages sustained by it.
4.19 Compliance with Laws. ABC possesses all Licenses of
--------------------
and from all Governmental Bodies necessary to own or lease its
respective properties and assets and to conduct the business in which
it is engaged. Except as set forth on Schedule 4.19, no proceeding
has been threatened or commenced which seeks to, or could reasonably
be anticipated to, cause the suspension, modification, revocation or
withdrawal of any License. ABC is currently, and at all times has
been, in material compliance with all Laws applicable to it including,
without limitation, all applicable banking Laws. Neither ABC nor any
of its directors, officers, employees or representatives has offered,
proposed, promised or made any illegal payment to officers, employees
or representatives of any Governmental Body, or engaged in any illegal
reciprocal practices or made any illegal payment or given any other
illegal consideration to any third party.
4.20 Environmental Matters. Except as set forth on Schedule
---------------------
4.20 hereto:
(a) the operations of ABC, to the Knowledge of ABC and/or
the Shareholder, are and have been and are in substantial compliance
with all applicable Environmental Laws and all permits, licenses or
other authorizations issued pursuant to applicable Environmental Laws
("Environmental Permits");
(b) ABC has obtained all Environmental Permits necessary to
operate its business and is in substantial compliance with such
Environmental Permits;
(c) ABC is not the subject of any outstanding written
order, agreement or Contract with any governmental authority or person
respecting (i) Environmental Laws, (ii) Remedial Action or (iii) any
Release or threatened Release of a Hazardous Material;
(d) ABC has not received any written communication alleging
that ABC or the operations thereof may be in violation of any
Environmental Law or any Environmental Permit, or may have any
liability under any Environmental Law;
(e) to the Knowledge of ABC and/or the Shareholder, no
unpermitted or unlawful Release of any Hazardous Materials has
occurred at any of the Company Properties or off-site so as to
adversely affect the Company Properties;
(f) there are no legal or administrative proceedings
pending or, to the Knowledge of ABC or the Shareholder, threatened
against ABC alleging the violation of or seeking to impose liability
pursuant to Environmental Laws;
(g) to the Knowledge of ABC or the Shareholder, there are
no investigations of the business, operations, or currently or
previously owned, operated or leased property of ABC pending or
threatened which could lead to the imposition of any liability
pursuant to Environmental Law;
(h) there is not located at any of the Company Properties
any (i) underground storage tanks, (ii) asbestos-containing material
or (iii) equipment containing polychlorinated biphenyls in quantities
requiring record keeping pursuant to the Toxic Substances Control Act;
and
(i) ABC has provided to the Purchaser copies of all
environmentally related audits, studies, reports, analyses, and
results of investigations in its or the Shareholder's possession,
custody or control that have been performed with respect to the
currently or previously owned, leased or operated properties of ABC.
4.21 Insurance. Schedule 4.21 sets forth a complete and
---------
accurate list of all policies of insurance of any kind or nature
covering ABC or any of its employees, properties or assets, including,
without limitation, policies of life, disability, fire, theft, workers
compensation, employee fidelity and other casualty and liability
insurance. All such policies are in full force and effect and ABC is
not in default of any provision thereof.
4.22 Payables. All accounts payable of ABC reflected in its
--------
Balance Sheet or arising after the date thereof are the result of bona
fide transactions in the ordinary course of business and have been
paid or are not yet due and payable.
4.23 Related Party Transactions. Except as set forth on
--------------------------
Schedule 4.23, ABC has not borrowed any moneys from and has no
outstanding indebtedness or other similar obligations to the
Shareholder or any of its Affiliates. Except as set forth in
Schedule 4.23, none of ABC, or any of its officers, employees or
Affiliates (i) owns any direct or indirect interest of any kind in, or
controls or is a director, officer, employee or partner of, or con-
sultant to, or lender to or borrower from or has the right to
participate in the profits of, any Person which is (A) a competitor,
supplier, customer, landlord, tenant, creditor or debtor of ABC, (B)
engaged in a business related to the business of ABC, or (C) a parti-
cipant in any transaction to which ABC is a party or (ii) is a party
to any Contract or transaction with ABC. Since the Balance Sheet
Date, ABC has not entered into any transactions with any Affiliate.
4.24 ADA Matters. Neither ABC nor the Shareholder has
-----------
received any notification regarding any real property which is the
subject of any of the Real Property Leases which would require that
the lessee under any such Real Property Lease make any additions,
renovations or improvements to such property pursuant to the terms of
the Americans With Disabilities Act ("ADA") or otherwise.
4.25 Banks. Schedule 4.25 contains a complete and correct
-----
list of the names and locations of all banks in which ABC has accounts
or safe deposit boxes and the names of all persons authorized to draw
thereon or to have access thereto. Except as set forth on Schedule
4.25, no person holds a power of attorney to act on behalf of ABC.
4.26 No Misrepresentation. No representation or warranty of
--------------------
ABC or the Shareholder contained in this Agreement or in any schedule
hereto or in any certificate or other agreement or instrument
furnished by ABC or the Shareholder to the Purchaser pursuant to the
terms hereof, contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements
contained herein or therein not misleading.
4.27 Financial Advisors. Except as set forth on Schedule
------------------
4.27, no Person has acted, directly or indirectly, as a broker, finder
or financial advisor for ABC or the Shareholder in connection with the
transactions contemplated by this Agreement and no Person is entitled
to any fee or commission or like payment in respect thereof.
4.28 ABC's Solvency and Obligations. The obligations
------------------------------
incurred by ABC pursuant to this Agreement or in connection with the
sale of the Stores will not render ABC insolvent within the meaning of
the United States Bankruptcy Code, other applicable federal law or
applicable state law, including, without limitation, the laws of the
States of Ohio or New York. Every obligation incurred by ABC pursuant
to this Agreement or in connection with the sale of the assets sold by
it hereunder has been incurred for fair consideration. ABC
acknowledges the
receipt of reasonably equivalent value in connection with the sale of
the Assets. ABC does not intend or believe that it will incur debts
beyond its ability to pay as they mature in connection with the
obligations incurred pursuant to this Agreement or in connection with
the sale of the Assets. ABC has no actual intent to hinder, delay or
defraud either present or future creditors by incurring obligations
pursuant to this Agreement or in connection with the sale of the
Assets. The property remaining in ABC's possession after the sale of
the Assets does not constitute unreasonably small capital for ABC.
Upon and after the Closing, ABC shall have sufficient capital to carry
on the business and the transactions in which it intends to engage,
and is now, and shall be after Closing, solvent and able to pay its
debts as they mature.
Except for those matters expressly set forth in this
Agreement, in any Exhibit or Schedule to this Agreement or in any
Seller Document, ABC does not make and expressly disclaims any
representation or warranty as to the accuracy or completeness of any
communication, disclosure, documentation, information (financial and
otherwise), reports or other materials furnished by Seller or the
Company to Purchaser prior to the date of this Agreement.
4.29 Name. "ABC" and "ABC Check Cashing" are the only names
----
used by ABC in the operation of the Stores.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby represents and warrants to ABC that:
5.1 Organization and Good Standing. The Purchaser is a
------------------------------
corporation duly organized, validly existing and in good standing
under the laws of the State of Ohio.
5.2 Authorization of Agreement. The Purchaser has full
--------------------------
corporate power and authority to execute and deliver this Agreement
and each other agreement, document, instrument or certificate con-
templated by this Agreement or to be executed by the Purchaser in con-
nection with the consummation of the transactions contemplated hereby
and thereby (the "Purchaser Documents"), and to consummate the
transactions contemplated hereby and thereby. The execution, delivery
and performance by the Purchaser of this Agreement and each Purchaser
Document have been duly authorized by all necessary corporate action
on behalf of the Purchaser. This Agreement and each Purchaser
Document has been duly executed and delivered by the Purchaser and
(assuming the due
authorization, execution and delivery by the other parties hereto and
thereto) this Agreement and each Purchaser Document when so executed
and delivered constitute, legal, valid and binding obligations of the
Purchaser, enforceable against the Purchaser in accordance with their
respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
5.3 Conflicts; Consents of Third Parties.
------------------------------------
(a) Except as set forth on Schedule 5.3 hereto, none of the
execution and delivery by the Purchaser of this Agreement and of the
Purchaser Documents, the consummation by the Purchaser of the
transactions contemplated hereby and thereby, or compliance by the
Purchaser with any of the provisions hereof or thereof will (i) con-
flict with, or result in the breach of, any provision of the cer-
tificate of incorporation or by-laws of the Purchaser, (ii) conflict
with, violate, result in the breach or termination of, constitute a
default under, or give rise to any right of acceleration under, any
note, bond, mortgage, indenture, license, agreement or other
instrument or obligation to which the Purchaser is a party or by which
the Purchaser or its properties or assets is bound or (iii) violate
any statute, rule, regulation, judgment or Order of any Governmental
Body by which the Purchaser is bound, except, in the case of clauses
(ii) and (iii), for such violations, breaches or defaults as would
not, individually or in the aggregate, have a material adverse effect
on the ability of Purchaser to consummate the transactions
contemplated hereby and thereby.
(b) Except as set forth on Schedule 5.3, no consent,
waiver, approval, Order, Permit or authorization of, or declaration or
filing with, or notification to, any Person or Governmental Body is
required on the part of the Purchaser in connection with the execution
and delivery of this Agreement or the Purchaser Documents or the
compliance by Purchaser with any of the provisions hereof or thereof.
5.4 Litigation. There are no Legal Proceedings pending or,
----------
to the best knowledge of the Purchaser, threatened that are reasonably
likely to prohibit or restrain the ability of the Purchaser to enter
into this Agreement or consummate the transactions contemplated
hereby.
5.5 Financial Advisors. No Person has acted, directly or
------------------
indirectly, as a broker, finder or financial advisor for the Purchaser
in connection with the transactions contemplated by this
Agreement and no person is entitled to any fee or commission or like
payment in respect thereof.
5.6 Purchaser's Solvency and Obligations. The obligations
------------------------------------
incurred by Purchaser pursuant to this Agreement or in connection with
the purchase of the Stores will not render Purchaser insolvent within
the meaning of the United States Bankruptcy Code, other applicable
federal law or applicable state law, including, without limitation,
the laws of the States of Ohio or New York. Every obligation incurred
by Purchaser pursuant to this Agreement or in connection with the
purchase of the Assets purchased hereunder has been incurred for fair
consideration. Purchase acknowledges the receipt of reasonably
equivalent value in connection with the purchase of the Assets.
Purchaser does not intend or believe that it will incur debts beyond
its ability to pay as they mature in connection with the obligations
incurred pursuant to this Agreement or in connection with the purchase
of the Assets. Purchaser has no actual intent to hinder, delay or
defraud either present or future creditors by incurring obligations
pursuant to this Agreement or in connection with the purchase of the
Assets. The property remaining in Purchaser's possession after the
purchase of the Assets does not constitute unreasonably small capital
for Purchaser. Upon and after the closing, Purchaser shall have
sufficient capital to carry on the business and the transactions in
which it intends to engage, and is now, and shall be after closing,
solvent and able to pay it debts as they mature.
5.7 Purchaser's Group Medical Plans. The Purchaser's
-------------------------------
applicable group medical plans will not exclude coverage of any
employees of ABC who (i) participate in ABC's group medical plan, (ii)
receive and accept an offer of employment from Purchaser, and (iii)
properly enroll in Purchaser's applicable group medical plans during
an open enrollment period established by the Purchaser following the
Closing Date on the basis of any preexisting medical conditions of any
such employee (other than exclusions provided under ABC's group
medical plan).
ARTICLE VI
COVENANTS
6.1 Effect of Investigation. Each of ABC and the
-----------------------
Shareholder agrees that no investigation by the Purchaser prior to or
after the date of this Agreement shall diminish or obviate any of the
representations, warranties, covenants or agreements of ABC or the
Shareholder contained in this Agreement or the Seller Documents.
6.2 Consents. To the extent any of the approvals, consents
--------
or waivers required to consummate the transactions contemplated by
this Agreement, including, without limitation, the consents and
approvals referred to in Section 4.6(b) hereof have not been obtained
by ABC as of the Closing with respect to any Assumed Contracts, ABC
shall use its best efforts to do the following:
(i) cooperate with the Purchaser in any reasonable and
lawful arrangements designed to provide the benefits of such
Assumed Contracts to the Purchaser as long as the Purchaser
promptly reimburses ABC for all out-of-pocket payments or charges
made by ABC in connection therewith; and
(ii) enforce, at the request of the Purchaser and at
the expense and for the account of the Purchaser, any and all
rights of ABC arising from such interest against the other party
or parties thereto (including the right to elect to terminate
such interest in accordance with the terms thereof upon the
written advice of the Purchaser).
6.3 Preservation of Records. Subject to Section 6.9(c)
-----------------------
hereof (relating to the preservation of Tax records), ABC and the
Purchaser agree that each of them shall preserve and keep the records
held by them relating to the business of ABC for a period of three
years from the Closing Date and shall make such records and personnel
available to the other as may be reasonably required by such party in
connection with, among other things, any insurance claims by, legal
proceedings against or governmental investigations of ABC or the
Purchaser or any of their respective Affiliates or in order to enable
ABC or the Purchaser to comply with their respective obligations under
this Agreement and each other agreement, document or instrument con-
templated hereby. In the event either ABC or the Purchaser wishes to
destroy such records after that time, such party shall first give
ninety (90) days prior written notice to the other and such other
party shall have the right at its option and expense, upon prior
written notice given to such party within that ninety (90) day period,
to take possession of the records within one hundred and eighty (180)
days after the date of such notice.
6.4 Publicity. Neither ABC nor the Purchaser shall issue
---------
any press release or public announcement concerning this Agreement or
the transactions contemplated hereby without obtaining the prior
written approval of the other parties hereto, which approval will not
be unreasonably withheld or delayed, unless, in the sole judgment of
the Purchaser, disclosure is otherwise required by applicable Law,
provided that, to the extent required by applicable law, the party
intending to make such release shall use its best efforts consistent
with such applicable
law to consult with the other party with respect to the text thereof.
6.5 Use of Name. ABC hereby agrees that upon the
-----------
consummation of the transactions contemplated hereby, the Purchaser
shall have the sole right (vis-a-vis ABC, the Shareholder and any of
their respective Affiliates) to the use of the names "ABC" and "ABC
Check Cashing", and ABC shall not, and shall not cause or permit any
Affiliate to, use such names or any variation or simulation thereof in
any business or manner, either involving check cashing or otherwise,
except as expressly provided in the License Agreement attached as
Exhibit E hereto. ABC shall change its name, and thereafter shall
never use its name, except as expressly provided in the License
Agreement attached as Exhibit E hereto, effective as soon as possible
(but in no event later than 15 days) after the Closing Date and
thereafter never utilize the name "ABC", "ABC Check Cashing" or any
derivative or variation thereof. ABC shall assign to Purchaser,
cancel or relinquish any fictitious name registration held by it
concerning the name "ABC", "ABC Check Cashing" or any derivation
thereof.
6.6 Environmental Matters.
---------------------
ABC shall identify the Environmental Permits required by
Purchaser to operate the business of ABC and shall promptly file all
materials required under Environmental Laws (including, without
limitation, foreign or state property transfer laws such as the
Industrial Site Recovery Act) and all requests required for the
issuance, transfer or reissuance to Purchaser of Permits necessary to
conduct ABC's business prior to the Closing Date.
6.7 Noncompetition Agreements. Each of the Shareholder and
-------------------------
ABC hereby agree that, on or prior to the Closing Date, (i) each of
them shall execute and deliver to Purchaser a Noncompetition
Agreement, substantially in the form of Exhibit A-1 hereto and (ii)
they shall cause Credit One Company and Quick Tax, Inc. to execute and
deliver to Purchaser a Noncompetition Agreement, substantially in the
form of Exhibit A-2 hereto.
6.8 Employee Benefits and Employment.
--------------------------------
(a) ABC shall be fully and solely responsible for each of
the Employee Benefit Plans pursuant to their terms.
(b) ABC shall deliver to Purchaser at least 5 Business Days
prior to the Closing Date a complete and correct list of all employees
of ABC (the "Employees") setting forth their names, employment
position, salary or hourly wage rate, location as of the end of the
then most recently completed month and separately identifying those
Employees who were actively employed on such date ("Active Employees")
and those Employees who were not
actively employed on such date (i.e., were absent due to disability,
sickness or leave of absence) (the "Inactive Employees"). The
Purchaser may offer employment or continued employment on an "at-will"
basis and at other terms and conditions determined by the Purchaser in
its sole discretion to any Active or Inactive Employees it selects in
its sole discretion, and Purchaser shall have full responsibility for
any claims, liabilities, obligations, costs and expenses (including
reasonable attorneys' fees) arising from or relating to the employment
after the Closing Date of Employees who accept Purchaser's offer of
employment upon the terms and conditions established by Purchaser.
ABC shall assume all obligations, liabilities, costs and expenses
relating to the Employees who are not offered employment by Purchaser.
(c) Purchaser shall indemnify ABC in respect of any and all
liabilities or penalties under the Worker Adjustment and Retraining
Notification Act ("WARN") resulting from or relating to liability
arising under WARN and incurred on or after the Closing Date as a
result of a "mass layoff" or "plant closing" as these terms are
defined by WARN with respect to Employees on the Closing Date who are
not offered employment with the Purchaser and are terminated by ABC
within ninety (90) days following the Closing Date, provided, however,
this sentence's first clause shall only be given effect if ABC has not
terminated any Employee during the 90-day period prior to the Closing
Date.
(d) Purchaser agrees that, with respect to all its employee
benefit plans (as defined in Section 3(3) of ERISA) covering any of
the Active Employees who receive and accept an offer of employment
from the Purchaser, service with ABC shall be counted as service with
Purchaser for purposes of determining any period of eligibility to
participate or to vest in benefits. ABC and the Shareholder
acknowledge and agree that Purchaser's Monetary Management Corp.
Retirement Plan will not accept any rollover distributions from the
Employees Profit Sharing Plan and Trust Agreement of ABC Check
Cashing, Inc.
6.9 Tax Matters.
-----------
(a) Allocation of Purchase Price. Attached hereto as
----------------------------
Schedule 6.9 is an allocation of the Purchase Price (including the
amount of the assumed liabilities) among the Assets and the
Noncompetition Agreements which has been prepared in accordance with
Section 1060 of the Code. Within 180 days after the Closing Date,
Purchaser shall provide to ABC copies of Internal Revenue Service Form
8594 and any required exhibits thereto, which shall be prepared by
Purchaser in a manner consistent with such Schedule 6.9 (after giving
effect to any Purchase Price adjustments required by this Agreement).
Purchaser and ABC shall file, and shall cause their Affiliates to
file, all Tax Returns and
statements, forms and schedules in connection therewith in a manner
consistent with such allocation of the Purchase Price and shall take
no position contrary thereto.
(b) Preparation of Tax Returns; Payment of Taxes. After
--------------------------------------------
the Closing Date, ABC or its Affiliates shall pay all Taxes as levied
by any foreign, federal, state, municipal or local taxing authority in
any jurisdiction with respect to the ownership, use or leasing of the
Assets on or prior to the Closing Date and Purchaser or its Affiliates
shall pay all such Taxes with respect to the ownership, use, or
leasing of the Assets after the Closing Date.
(c) Cooperation with Respect to Tax Returns. ABC,
---------------------------------------
Shareholder and Purchaser agree to furnish or cause to be furnished to
each other, upon request, and each at their own expense, as promptly
as practicable, such information (including access to books and
records) and assistance as is reasonably necessary for the filing of
any Tax Return, for the preparation for any audit, and for the
prosecution or defense of any claim, suit or proceeding relating to
any adjustment or proposed adjustment with respect to Taxes or any
appraisal of the Assets, including making employees available on a
mutually convenient basis to provide additional information and
explanations of any material provided hereunder. With respect to the
books and records referred to in the preceding sentence, each of ABC,
Shareholder and Purchaser agree to retain any such books and records
within its possession until six (6) months after the expiration of the
applicable statute of limitations. After such time, ABC, Shareholder
or Purchaser, as the case may be, may dispose of such books and
records, provided that prior to such disposition, ABC, Shareholder or
Purchaser, as the case may be, shall provide the other with a
reasonable opportunity to take possession of such books and records,
at no cost or expense.
(d) Transfer Taxes. ABC and Shareholder shall be jointly
--------------
and severally liable for and shall pay (and shall indemnify and hold
harmless Purchaser against) all sales, use, stamp, documentary,
filing, recording, transfer or similar fees or taxes or governmental
charges (including, without limitation, real property transfer gains
taxes, UCC-3 filing fees, FAA, ICC, DOT, real estate and motor vehicle
registration, title recording or filing fees and other amounts payable
in respect of transfer filings) as levied by any taxing authority or
governmental agency in connection with the transactions contemplated
by this Agreement (other than taxes measured by or with respect to
income imposed on Purchaser or its Affiliates). ABC and Shareholder
hereby agree to file all necessary documents (including, but not
limited to, all Tax Returns) with respect to all such amounts in a
timely manner.
6.10 Consents to Lease of Bedford Property. From and after
-------------------------------------
the Closing, ABC and the Shareholder will use their best efforts to
obtain the consent of the lessor of the Bedford Property to the
assignment to Purchaser of the lease covering the Bedford Property,
such assignment and consent to be in substantially the form of Exhibit
F-2 attached hereto. Purchaser covenants that in the event the lessor
of the Bedford Property requires the guarantee of Dollar Financial
Group, Inc. as a condition of granting its consent to such assignment,
then Purchaser shall cause Dollar Financial Group, Inc. to guarantee
Purchaser's obligations under the lease of the Bedford Property.
ARTICLE VII
CONDITIONS TO CLOSING
7.1 Conditions Precedent to Obligations of Purchaser. The
------------------------------------------------
obligation of the Purchaser to consummate the transactions
contemplated by this Agreement is subject to the fulfillment, on or
prior to the Closing Date, of each of the following conditions (any or
all of which may be waived by the Purchaser in whole or in part):
(a) all representations and warranties of ABC and the
Shareholder contained herein shall be true and correct as of the date
hereof;
(b) there shall not have been or occurred any Material
Adverse Change since December 31, 1995;
(c) no Legal Proceedings shall have been instituted or
threatened or claim or demand made against ABC, the Shareholder or the
Purchaser seeking to restrain or prohibit or to obtain substantial
damages with respect to the consummation of the transactions contem-
plated hereby, and there shall not be in effect any Order by a
Governmental Body of competent jurisdiction restraining, enjoining or
otherwise prohibiting the consummation of the transactions
contemplated hereby;
(d) ABC shall have provided the Purchaser with an affidavit
of non-foreign status that complies with Section 1445 of the Code (a
"FIRPTA Affidavit");
(e) ABC shall have furnished, or caused to be furnished, to
Purchaser, in form and substance satisfactory to Purchaser, such
certificates and other evidence as Purchaser may have reasonably
requested as to the satisfaction of the conditions contained in this
Section and as to such other matters relating to the representations,
warranties, covenants and undertakings in this Agreement as Purchaser
may reasonably request;
(f) Except for the lease of the Bedford Property and for
the lease of 34750 Vine Street, Eastlake, Ohio, ABC shall have
obtained consents from the landlords and lessors under each Real
Property Lease;
(g) all Real Property Leases between ABC and the
Shareholder, any Affiliate of the Shareholder, or any Person related
to the Shareholder, shall have been amended on terms satisfactory to
the Purchaser;
(h) the Purchaser shall have received duly executed copies
of each of the documents enumerated in Section 8.1; and
(i) with respect to the real property subject to Real
Property Leases, the Purchaser shall have received a list of items
that have been repaired prior to Closing.
7.2 Conditions Precedent to Obligations of ABC. The
------------------------------------------
obligations of ABC to consummate the transactions contemplated by this
Agreement are subject to the fulfillment, prior to or on the Closing
Date, of each of the following conditions (any or all of which may be
waived by ABC in whole or in part to the extent permitted by
applicable law):
(a) all representations and warranties of the Purchaser
contained herein shall be true and correct as of the date hereof;
(b) there shall not be in effect any Order by a
Governmental Body of competent jurisdiction restraining, enjoining or
otherwise prohibiting the consummation of the transactions
contemplated hereby;
(c) ABC shall have received duly executed copies of each of
the documents enumerated in Section 8.2.
ARTICLE VIII
DOCUMENTS TO BE DELIVERED
8.1 Documents to be Delivered by ABC. At the Closing, ABC
--------------------------------
(and, in the case of clauses (a), (c) and (f) through (l), the
Shareholder) shall deliver, or cause to be delivered, to the Purchaser
the following:
(a) the opinion of Kahn, Kleinman, Yanowitz and Arnson Co.,
L.P.A., counsel to ABC and the Shareholder, in substantially the form
of Exhibit B hereto;
(b) copies of all consents and waivers referred to in
Section 7.1(f) hereof;
(c) Noncompetition Agreement in the form of Exhibit A-1
attached hereto, duly executed by ABC and the Shareholder and a
Noncompetition Agreement in the form of Exhibit A-2 attached hereto,
duly executed by Credit One Company and Quick Tax, Inc.;
(d) a duly executed FIRPTA Affidavit for ABC;
(e) certificates of good standing with respect to ABC
issued by the Secretary of State of Ohio and for each state in which
ABC is qualified to do business as a foreign corporation;
(f) a copy of the Escrow Agreement, duly executed by the
Escrow Agent, ABC, the Shareholder and the Purchaser;
(g) with respect to each of the Real Property Leases, ABC
shall have delivered to Purchaser, Lease Assignment and Assumption
Agreements in the form of Exhibit F-1, in the case of any Real
Property Leases with Affiliates of or parties related to Shareholder,
and in substantially the form of Exhibit F-2, in the case of any other
Real Property Leases;
(h) a copy of the License Agreement, duly executed by ABC;
(i) a copy of the Assumption Agreement, duly executed by
ABC;
(j) a copy of the Bill of Sale and Assignment of Contracts
Agreement, duly executed by ABC;
(k) a copy of the letter agreement dated the date hereof,
regarding certain post-closing obligations of the parties, duly
executed by ABC and the Shareholder; and
(l) such other documents as the Purchaser shall reasonably
request including such other good and sufficient instruments (i) of
transfer and conveyance, in form and substance satisfactory to
Purchaser and its counsel, as shall be effective to vest in Purchaser,
and to evidence the vesting in Purchaser of, good and marketable title
to the Assets that are not Real Property Leases (ii) of assignment, in
form and substance satisfactory to Purchaser and its counsel, as shall
be necessary or desirable to vest in Purchaser all of ABC's rights and
interest in any Real Property Lease, in each case, as provided for,
and subject to the limitations and exceptions set forth, in this
Agreement.
8.2 Documents to be Delivered by the Purchaser. At the
------------------------------------------
Closing, the Purchaser shall deliver to ABC the following:
(a) evidence of the payments required to be made pursuant
to Section 2.2 hereof;
(b) the opinion of Weil, Gotshal & Manges LLP, counsel to
the Purchaser, in the form of Exhibit C hereto;
(c) a copy of the Escrow Agreement, duly executed by the
Purchaser;
(d) a copy of the License Agreement, duly executed by the
Purchaser;
(e) a copy of the Assumption Agreement, duly executed by
the Purchaser;
(f) with respect to each of the Real Property Leases,
Purchaser shall have delivered to ABC, Lease Assignment and Assumption
Agreements in the form of Exhibit F-1, in the case of any Real
Property Leases with Affiliates of or parties related to Shareholder,
and in substantially the form of Exhibit F-2, in the case of any other
Real Property Leases;
(g) a copy of the letter agreement dated the date hereof,
regarding certain post-closing obligations of the parties, duly
executed by the Purchaser; and
(h) such other documents as ABC shall reasonably request.
ARTICLE IX
INDEMNIFICATION
9.1 Survival. The representations and warranties of ABC,
--------
the Shareholder and Purchaser shall remain operative and in full force
and effect for a period of eighteen (18) months after the Closing
Date, regardless of any investigation or statement as to the results
thereof made by or on behalf of any party hereto; provided, however,
-------- -------
that (i) the representations and warranties contained in Sections
4.9, 4.17, 4.19, 4.20 and 4.24, as well as the indemnities contained
in Sections 9.2(a)(iii) and 9.2(a)(iv) (solely to the extent such
representations and warranties or indemnities relate to a violation of
any Environmental Law, ADA or OSHA), shall remain operative and in
full force and effect for a period of four years after the Closing
Date, and (ii) the representations and warranties contained in
Sections 4.2, 4.4, 4.7, 4.11 and 4.16 shall remain operative and in
full force and effect until the expiration of 60 days after the
applicable statutes of limitation with respect to the matters referred
to therein; and provided further, that any claim based upon a
-------- -------
fraudulent or intentional misrepresentation shall survive
indefinitely. The indemnity contained in Section 9.2(a)(v) shall
remain operative and in full force and effect until the date that
ABC shall have obtained the consent of the lessor of the Bedford
Property to the assignment to Purchaser of the lease covering the
Bedford Property and shall terminate and be of no further force and
effect after such date. Notwithstanding anything to the contrary
herein, any representation or warranty which is the subject of a claim
or dispute which is asserted in writing prior to the expiration of the
applicable period set forth above shall survive with respect to such
claim or dispute until the final resolution and satisfaction thereof.
9.2 General Indemnification.
-----------------------
(a) Each of ABC and the Shareholder hereby jointly and
severally agree to indemnify and hold harmless the Purchaser and its
Affiliates and their respective directors, officers, employees,
agents, successors and assigns (collectively, the "Purchaser
Indemnified Parties") from and against and in respect of any and all
Losses resulting from, arising out of, based on or relating to:
(i) the failure of any representation or warranty of
ABC or the Shareholder set forth in this Agreement, any Seller
Document or any certificate or instrument delivered by or on
behalf of ABC or the Shareholder pursuant to this Agreement
(other than the Underground Storage Tank Report prepared by
Engineering Science, Inc. dated April 21, 1989, and the No
Further Action Letter from the Ohio Department of Commerce to
Edward Kowit, dated Sept. 17, 1992), to be true and correct in
all respects both on the date hereof and on and as of the Closing
Date;
(ii) the breach of any covenant or other agreement on
the part of ABC or the Shareholder under this Agreement or any
Seller Document;
(iii) any Excluded Liability;
(iv) (A) any Release of Hazardous Materials in, on, at,
or from the Company Properties which first occurred, or resulted
from operations occurring, as of or prior to the Closing but only
to the extent that any such Release was not the result of or
exacerbated by the knowing or grossly negligent acts or omissions
of Purchaser, its agents, employees, contractors, tenants,
Affiliates, assigns or invitees; (B) any tort liability to third
parties, including, without limitation, liability resulting from
exposure to Hazardous Materials, to the extent that such
liability is the result of any Release at the Company Properties
which first occurred at the Company Properties as of or prior to
the Closing but only to the extent that any such tort liability
is not the result of or exacerbated by the knowing or grossly
negligent act or omissions of Purchaser, its agents, employees,
contractors, tenants, Affiliates, assigns or invitees;
(C) notification or designation under any Environmental Law as a
potentially responsible party for offsite disposal of Hazardous
Materials by ABC, which disposal occurred as of or prior to the
Closing, or the listing of any asset of ABC on the CERCLA
National Priorities List or any similar list under any
Environmental Law as a result of disposal of Hazardous Materials
by ABC as of or prior to the Closing; or (D) any violation of
Environmental Laws, in effect at the time of the violation, that
first occurred or resulted from operations by ABC or at Company
Properties occurring as of or prior to the Closing Date;
(v) the failure of ABC to have obtained, prior to
Closing, the consent of the lessor of the Bedford Property to the
assignment to Purchaser of the lease covering the Bedford
Property; or
(vi) the Excluded Assets or the ownership, operation,
lease or use thereof, or any action taken with respect thereto,
by ABC or any other Person.
(b) Purchaser hereby agrees to indemnify and hold harmless
ABC and its Affiliates, and their respective directors, officers,
employees, agents, successors and assigns (collectively, the "Seller
Indemnified Parties") from and against and in respect of any and all
Losses resulting from, arising out of, based on or relating to:
(i) the failure of any representation or warranty of
the Purchaser set forth in this Agreement or any Purchaser
Document or any certificate and instrument delivered by or on
behalf of the Purchaser pursuant to this Agreement, to be true
and correct in all respects both on the date hereof and on and as
of the Closing Date;
(ii) the breach of any covenant or other agreement on
the part of the Purchaser under this Agreement or any Purchaser
Document; or
(iii) any Assumed Liabilities.
9.3 Limitations on Indemnification for Breaches of
----------------------------------------------
Representations and Warranties.
------------------------------
(a) Subject to Section 9.5 and Section 9.6 hereof, none of
the indemnifying parties shall have any liability under Section
9.2(a)(i) or 9.2(b)(i) hereof unless and until the aggregate amount of
Losses subject to indemnification thereunder exceeds $25,000 and, in
such event, the indemnifying party shall be
required to pay the entire amount of such Losses in excess of $25,000;
provided the indemnifying party shall be required to pay the entire
amount of any Losses incurred as a result of a breach of any
representation or warranty contained in Sections 4.2, 4.4 or 4.7.
(b) The aggregate liability of all indemnifying parties
pursuant to Section 9.2(a)(i), 9.2(a)(iii) (as such liability relates
to any Environmental Law, ADA or OSHA), 9.2(a)(iv) (as such liability
relates to any Environmental Law, ADA or OSHA) or 9.2(b)(i) hereof,
other than liability for Losses resulting from, arising out of, based
on or relating to a breach of any representation or warranty contained
in Section 4.2, 4.4, 4.7 or 4.11, shall not exceed $1,500,000 in the
aggregate; provided that with respect to (1) in the case of Section
--------
9.2(a)(i) or 9.2(b)(i), liability for Losses resulting from, arising
out of, based on or relating to any breach of Sections 4.9, 4.19, 4.20
or 4.24, or (2) in the case of Section 9.2(a)(iii) or 9.2(a)(iv),
liability for Losses resulting from, arising out of, based on or
relating to any Environmental Law, ADA or OSHA, the $1,500,000
limitation shall only apply to breaches of such representations or
warranties or breaches or violations of such Laws of which neither the
Company nor the Shareholder had knowledge as of the Closing Date. The
aggregate liability of all indemnifying parties pursuant to Section
9.2(a)(i), 9.2(a)(iii), 9.2(a)(iv) or 9.2(b)(i) hereof for any Losses
resulting from, arising out of, based on or relating to any breach of
any representation or warranty in Section 4.2, 4.4, 4.7 or 4.11 shall
not exceed the Purchase Price. The liability of all indemnifying
parties pursuant to Section 9.2(a)(v) shall be limited to Losses which
constitute out-of-pocket costs and expenses (including reasonable
attorneys' fees and litigation expenses) incurred by any Purchaser
Indemnified Party and shall be limited to an aggregate liability of
$100,000.
9.4 Indemnification Procedures. For the purposes of
--------------------------
administering the indemnification provisions of Section 9.2, the
following procedures shall apply:
(a) If an indemnified party shall receive notice of any
action or proceeding by a third party which the indemnified party
asserts is indemnifiable under Section 9.2 (a "Claim"), the
indemnified party shall notify the indemnifying party (the
"Indemnitor") of such Claim in writing promptly following the receipt
of notice by such indemnifying party of the commencement of such
Claim. The failure to give notice as required by this Section 9.4 in
a timely fashion shall not result in a waiver of any right to
indemnification hereunder except to the extent that the Indemnitor is
actually prejudiced thereby.
(b) Except as provided in subsection (c) hereof, the
Indemnitor shall be entitled to assume the defense or settlement
of any Claim of the type referred to in clause (a) hereof (with
counsel reasonably satisfactory to the indemnified parties) if the
Indemnitor shall provide the indemnified parties a written
acknowledgement of its liability to indemnify such indemnified parties
against all Losses resulting from, relating to, based on or arising
out of such Claim. If the Indemnitor assumes any such defense or
settlement, it shall pursue such defense or settlement in good faith.
If the Indemnitor fails to elect in writing, within 10 days after the
notification referred to above, to assume the defense of any Claim as
provided above, the indemnified party may engage counsel to defend,
settle or otherwise dispose of such Claim, which counsel shall be
reasonably satisfactory to the Indemnitor; provided, however, that the
-------- -------
indemnified party shall not settle or compromise any such Claim
without the consent of the Indemnitor (which consent will not be
unreasonably withheld or delayed).
(c) Notwithstanding anything to the contrary contained
herein, the Purchaser shall have the sole right, with counsel
reasonably satisfactory to the Indemnitor, to defend any Claim which
constitutes a Non-Assumable Claim and no other party hereto shall be
entitled to assume the defense thereof or settle such Non-Assumable
Claim as to the Purchaser; provided, however, that (i) the indemnified
-------- -------
party shall not settle or compromise any such Non-Assumable Claim
without the consent of the Indemnitor (which consent will not be
unreasonably withheld or delayed), (ii) the Purchaser shall keep the
Indemnitor apprised as to the status of any pending Non-Assumable
Claim, and the Indemnitor shall have the right to attend any
settlement conferences at its own cost and expense, and (iii) the
Indemnitor (and its counsel) shall be entitled to participate, at the
cost and expense of the Indemnitor, in any such action or proceeding
or in any negotiations or proceedings to settle or otherwise eliminate
any Non-Assumable Claim for which indemnification is being sought. A
"Non-Assumable Claim" means any claim, action or proceeding (i)
arising out of or in connection with, or relating to, any violation or
asserted violation of any law, rule, regulation, order, judgment or
decree, (ii) in which a Governmental Body or a quasi-governmental
entity is an adverse party in interest, or (iii) seeking injunctive
relief, other than (solely in the case of (i) and (ii) above) claims
related to environmental matters arising pursuant to Sections 4.20 and
9.2(a)(iv); provided, however, that a claim, action or proceeding
-------- -------
referred to in clause (i), (ii) or (iii) of this sentence shall only
constitute a "Non-Assumable Claim" if Purchaser determines in good
faith that such claim, action or proceeding, if adversely determined,
could have a material adverse impact on the assets, liabilities, busi-
ness or operations of Purchaser or any of its Affiliates.
(d) In cases where the Indemnitor has elected to assume the
defense or settlement with respect to a Claim as provided
above, the Indemnitor shall be entitled to assume such defense or
settlement provided that: (i) the indemnified party (and its counsel)
--------
shall be entitled to continue to participate at its own cost in any
such action or proceeding or in any negotiations or proceedings to
settle or otherwise eliminate any claim for which indemnification is
being sought; (ii) the Indemnitor shall not be entitled to settle or
compromise any such claim without the consent or agreement of the
indemnified party (such consent not to be unreasonably withheld or
delayed); and (iii) after written notice by the Indemnitor to the
indemnified party of its election to assume control of the defense of
any Claim, the Indemnitor shall not be liable to such indemnified
party hereunder for any attorneys' fees and disbursements subsequently
incurred by such indemnified party in connection therewith.
(e) In the event that a claim or demand for indemnification
may be made by the Purchaser under more than one provision of this
Article IX, the Purchaser shall have the option to elect the provision
of this Article IX under which it chooses to make such claim or demand
for indemnification by the Purchaser.
9.5 Tax Matters.
-----------
(a) ABC and the Shareholder hereby jointly and severally
agree to indemnify and hold harmless the Purchaser and its Affiliates
and in each case their respective directors, officers, employees and
agents, from and against any and all Losses resulting from, arising
out of, based on or relating to:
(i) any breach of any representation, warranty or
covenant contained in Sections 4.11 or 6.9 hereof;
(ii) any Taxes for which ABC is liable pursuant to
subsections 6.9(b) or 6.9(d) hereof; and
(iii) any Taxes asserted against Purchaser or any
of its Affiliates as a result of transferee liability at law or
equity arising out of the transactions contemplated hereby.
(b) Any claim for indemnity made under this Section 9.5 may
be made at any time prior to sixty days following the expiration of
the applicable Tax statute of limitations with respect to the relevant
taxable period (including extensions).
9.6 Employee Benefits and Labor Indemnity. The Shareholder
-------------------------------------
and ABC hereby agree to jointly and severally indemnify and hold the
Purchaser Indemnified Parties harmless from and against any and all
Losses (i) arising out of or based upon or with respect to any
Employee Benefit Plan, including, but not limited to, any obligations
arising under Part 6 of Title I of
ERISA or Section 4980B of the Code, or (ii) arising out of or based
upon or with respect to the employment or termination of employment of
any Person prior to or on the Closing Date with ABC including, without
limitation, any claim with respect to, relating to arising out of or
in connection with discrimination by ABC or wrongful discharge
(including constructive discharge), (iii) with respect to, relating to
or in connection with Employees who are not offered employment by the
Purchaser or who do not accept Purchaser's offer of employment and
(iv) with respect to, relating to or in connection with Employees who
accept Purchaser's offer of employment, all claims with respect to,
relating to, arising out of or based upon their employment on or prior
to the Closing Date, whether a claim is made before, on or after the
Closing Date.
9.7 Treatment of Payment. ABC and Purchaser agree to treat
--------------------
any indemnity payment made pursuant to Sections 9.2, 9.5 or 9.6 of
this Agreement as an adjustment to the Purchase Price for federal,
state, local and foreign income tax purposes.
ARTICLE X
MISCELLANEOUS
10.1 Certain Definitions.
-------------------
For purposes of this Agreement, the following terms shall
have the meanings specified in this Section 10.1:
"ABC" shall have the meaning ascribed to such term in the
---
preamble hereto.
"Affiliate" means, with respect to any Person, any other
---------
Person controlling, controlled by or under common control with such
Person.
"Agreed Prepaid Expenses" shall have the meaning ascribed to
-----------------------
such term in Section 1.5(b) hereof.
"Assets" shall have the meaning ascribed to such term in
------
Section 1.1 hereof.
"Assumed Contracts" shall have the meaning ascribed to such
-----------------
term in Section 4.15 hereof.
"Assumed Liabilities" shall have the meaning ascribed to
-------------------
such term in Section 1.5(a) hereof.
"Assumption Agreement" shall mean an agreement in the form
--------------------
of Exhibit G hereto, between the Purchaser and ABC.
"Balance Sheet" shall have the meaning ascribed to such term
-------------
in Section 4.8 hereof.
"Balance Sheet Date" shall have the meaning ascribed to such
------------------
term in Section 4.8 hereof.
"Bedford Property" shall mean the premises located at 5333
----------------
Northfield Road, Bedford Heights, Ohio.
"Bill of Sale and Assignment of Contracts" shall mean an
----------------------------------------
agreement in the form of Exhibit H hereto, executed by ABC in favor of
the Purchaser.
"Business Day" means any day of the year on which national
------------
banking institutions in New York are open to the public for conducting
business and are not required or authorized to close.
"Cash on Hand" shall have the meaning ascribed to such term
------------
in Section 1.3 hereof.
"Closing" shall have the meaning ascribed to such term in
-------
Section 3.1 hereof.
"Closing Date" shall have the meaning ascribed to such term
------------
in Section 3.1 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as
----
amended.
"Company" shall have the meaning ascribed to such term in
-------
the preamble hereto.
"Company Property" shall have the meaning ascribed to such
----------------
term in Section 4.12(a) hereof.
"Contract" means any contract, agreement, indenture, note,
--------
bond, loan, instrument, lease, commitment or other arrangement or
agreement.
"Credited Liabilities" shall have the meaning ascribed to
--------------------
such term in Section 1.5(b) hereof.
"Employee Benefit Plans" shall have the meaning ascribed to
----------------------
such term in Section 4.16(a) hereof.
"Environmental Law" means any foreign, federal, state or
-----------------
local law, statute, regulation, code, ordinance, rule of common law or
other requirement in any way relating to the protection of human
health and safety or the environment as now or hereafter in effect
including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C.
ss. 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C.
-- ----
App. ss. 1801 et seq.), the Resource Conservation and Recovery Act (42
-- ----
U.S.C. ss. 6901 et seq.), the Clean Water Act (33 U.S.C. ss. 1251 et
-- ---- --
seq.), the Clean Air Act (42 U.S.C. ss. 7401 et seq.) the Toxic
---- -- ----
Substances Control Act (15 U.S.C. ss. 2601 et seq.), the Federal
-- ----
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. ss. 136 et seq.),
-- ----
and OSHA, as such laws have been amended or supplemented, and the
regulations promulgated pursuant thereto, and all analogous foreign,
state or local laws.
"Environmental Permits" shall have the meaning ascribed to
---------------------
such term in Section 4.20(a).
"ERISA" shall have the meaning ascribed to such term in
-----
Section 4.16 hereof.
"ERISA Affiliate" means any trade or business (whether or
---------------
not incorporated) under common control with ABC, and which, together
with ABC, are treated as a single employer within the meaning of
Section 414(b), (c), (m) or (o) of the Code.
"Escrow Agent" shall have the meaning ascribed to such term
------------
in Section 2.2 hereof.
"Escrow Agreement" shall mean an agreement in the form of
----------------
Exhibit D hereto, among the Purchaser, ABC and the Escrow Agent.
"Excluded Assets" shall have the meaning ascribed to such
---------------
term in Section 1.3 hereof.
"Excluded Liabilities" means any and all liabilities or
--------------------
obligations of ABC of any kind, nature and description, absolute or
contingent, known or unknown, existing on, prior to or after the
Closing Date (including, without limitation, any liabilities arising
under any Environmental Laws and any liabilities relating to Taxes),
other than the Assumed Liabilities and the Credited Liabilities
referred to in Section 1.5 hereof.
"Expenses" shall have the meaning ascribed to such term in
--------
Section 1.5(b) hereof.
"Financial Statements" shall have the meaning ascribed to
--------------------
such term in Section 4.8 hereof.
"FIRPTA Affidavit" shall have the meaning ascribed to such
----------------
term in Section 7.1(d) hereof.
"GAAP" means United States generally accepted accounting
----
principles as of the date hereof.
"Governmental Body" means any government or governmental or
-----------------
regulatory body thereof, or political subdivision thereof, whether
federal, state, local or foreign, or any agency, instrumentality or
authority thereof, or any court or arbitrator (public or private).
"Hazardous Material" means any substance, material or waste
------------------
which is regulated by the United States, or any state or local
governmental authority including, without limitation, petroleum and
its by-products, asbestos, and any material or substance which is
defined as a "hazardous waste," "hazardous substance," "hazardous
material," "restricted hazardous waste," "industrial waste," "solid
waste," "contaminant," "pollutant," "toxic waste" or "toxic substance"
under any provision of Environmental Law.
"Knowledge" shall mean, with respect to ABC, the knowledge
---------
of either of Ed Kowit and Bob Battini.
"Law" means any federal, state, local or foreign law
---
(including common law), statute, code, ordinance, rule, regulation or
other requirement.
"Lease Assignment and Assumption Agreement" shall mean an
-----------------------------------------
agreement in substantially the form of Exhibit F-1 or Exhibit F-2
hereto.
"Legal Proceeding" means any judicial, administrative or
----------------
arbitral actions, suits, proceedings (public or private), claims or
governmental proceedings.
"License Agreement" means a license agreement, substantially
-----------------
in the form of Exhibit E hereto.
"Licenses" shall have the meaning ascribed to such term in
--------
Section 1.2(a) hereof.
"Lien" means any lien, pledge, mortgage, deed of trust,
----
security interest, claim, lease, charge, option, right of first
refusal, easement, servitude, transfer restriction under any
shareholder or similar agreement, encumbrance or any other restriction
or limitation whatsoever.
"Losses" means any and all losses, liabilities (accrued,
------
absolute, contingent or otherwise), suits, proceedings, judgments,
awards, demands, settlements, fines, assessments, damages, interest
and penalties, and costs and expenses (including without limitation
reasonable attorneys' fees and litigation expenses).
"Material Adverse Change" means any material adverse change
-----------------------
in the business, properties, results of operations, prospects or
condition (financial or otherwise) of either ABC or the Stores.
"Material Contracts" shall have the meaning ascribed to such
------------------
term in Section 4.15 hereof.
"1995 Audit Expense" shall mean $11,428.00.
------------------
"Noncompetition Agreement" shall mean either (i) an
------------------------
agreement in the form attached hereto as Exhibit A-1 among ABC, the
Shareholder and Purchaser or (ii) an agreement in the form attached
hereto as Exhibit A-2 among Credit One Company, Quick Tax, Inc. and
Purchaser.
"Order" means any order, injunction, judgment, decree,
-----
ruling, writ, assessment or arbitration award.
"OSHA" means the Occupational Safety and Health Act of 1970,
----
as amended, and any other Federal, state or local statute, law,
ordinance, code, rule or regulation or judicial or administrative
order or decree regulating, relating to or imposing liability or
standards of conduct concerning employee safety and/or health, as now
or at any time hereafter in effect.
"Permits" means any approvals, authorizations, consents,
-------
Licenses, permits or certificates.
"Permitted Exceptions" means (i) statutory liens for current
--------------------
taxes, assessments or other governmental charges not yet delinquent or
the amount or validity of which is being contested in good faith by
appropriate proceedings, provided an appropriate reserve is
established therefor; (ii) mechanics', carriers', workers', repairers'
and similar Liens arising or incurred in the ordinary course of
business that are not material to the business, operations and
financial condition of the property so encumbered or ABC; (iii)
zoning, entitlement and other land use and environmental regulations
by any Governmental Body, provided that such regulations have not been
--------
violated; and (iv) such other imperfections in title, charges,
easements, restrictions and encumbrances which do not materially
detract from the value of or materially interfere with the present use
of any Company Property subject thereto or affected thereby.
"Person" means any individual, corporation, partnership,
------
firm, joint venture, association, joint-stock company, trust,
unincorporated organization, Governmental Body or other entity.
"Personal Property Lease" shall have the meaning ascribed to
-----------------------
such term in Section 4.13(a) hereof.
"Property Contracts" shall have the meaning ascribed to such
------------------
term in Section 4.12(a) hereof.
"Purchase Price" shall have the meaning ascribed to such
--------------
term in Section 2.1 hereof.
"Purchaser Documents" shall have the meaning ascribed to
-------------------
such term in Section 5.2 hereof.
"Purchaser Indemnified Parties" shall have the meaning
-----------------------------
ascribed to such term in Section 9.2(a) hereof.
"Real Property Lease" shall have the meaning ascribed to
-------------------
such term in Section 4.12(a) hereof.
"Release" means any release, spill, emission, leaking,
-------
pumping, pouring, dumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration into the indoor or outdoor
environment.
"Seller Documents" shall have the meaning ascribed to such
----------------
term in Section 4.2 hereof.
"Seller Indemnified Parties" shall have the meaning ascribed
--------------------------
to such term in Section 9.2(b) hereof.
"Subsidiary" means any Person of which a majority of the
----------
outstanding voting securities or other voting equity interests are
owned, directly or indirectly, by such Person.
"Taxes" means all taxes, charges, fees, levies, imposts,
-----
duties, and other assessments, including but not limited to any
income, alternative minimum or add-on tax, estimated, gross income,
gross receipts, sales, use, transfer, gains, transactions,
intangibles, ad valorem, value-added, franchise, registration, title,
license, capital, paid-up capital, profits, withholding, payroll,
employment, excise, severance, stamp, occupation, premium, recording,
real property, personal property, Federal highway use, commercial
rent, environmental, windfall profit tax, custom, duty or other tax,
governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest, penalties, or additions to
tax, and any interest or penalties imposed with respect to the filing,
obligation to file or failure to file any Tax Return.
"Tax Return" means any return, declaration, report, claim
----------
for refund, information return, statement, or other similar document
relating to Taxes, including any schedule or attachment thereto, and
including any amendment thereof.
"WARN" shall have the meaning ascribed to such term in
----
Section 6.8(c) hereof.
10.2 Expenses. Except as otherwise provided in this
--------
Agreement, ABC and the Purchaser shall each bear their own expenses
incurred in connection with the negotiation and execution of this
Agreement and each other agreement, document and instrument
contemplated by this Agreement and the consummation of the
transactions contemplated hereby and thereby.
10.3 Specific Performance. ABC and the Shareholder each
--------------------
acknowledges and agrees that the breach of this Agreement would cause
irreparable damage to the Purchaser and that the Purchaser will not
have an adequate remedy at law. Therefore, the obligations of ABC and
the Shareholder under this Agreement, including, without limitation,
ABC's obligation to sell the Assets to the Purchaser, shall be
enforceable by a decree of specific performance issued by any court of
competent jurisdiction, and appropriate injunctive relief may be
applied for and granted in connection therewith. Such remedies shall,
however, be cumulative and not exclusive and shall be in addition to
any other remedies which any party may have under this Agreement or
otherwise.
10.4 Further Assurances. Each of ABC, the Shareholder and
------------------
the Purchaser agrees to execute and deliver such other documents or
agreements and to take such other action as may be reasonably
necessary or desirable for the implementation of this Agreement and
the consummation of the transactions contemplated hereby.
10.5 Submission to Jurisdiction; Consent to Service of
-------------------------------------------------
Process.
-------
(a) The parties hereto hereby irrevocably submit to the
non-exclusive jurisdiction of any federal or state court located
within the State of New York over any dispute arising out of or
relating to this Agreement or any of the transactions contemplated
hereby and each party hereby irrevocably agrees that all claims in
respect of such dispute or any suit, action proceeding related thereto
may be heard and determined in such courts. The parties hereby
irrevocably waive, to the fullest extent permitted by applicable law,
any objection which they may now or hereafter have to the laying of
venue of any such dispute brought in such court or any defense of
inconvenient forum for the maintenance of such dispute. Each of the
parties hereto agrees that a judgment in any such dispute may be
enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law.
(b) Each of the parties hereto hereby consents to process
being served by any party to this Agreement in any suit,
action or proceeding by the mailing of a copy thereof in accordance
with the provisions of Section 10.9.
10.6 Entire Agreement; Amendments and Waivers. This
----------------------------------------
Agreement (including the schedules and exhibits hereto), the Seller
Documents and the Purchaser Documents represent the entire
understanding and agreement between the parties hereto with respect to
the subject matter hereof and can be amended, supplemented or changed,
and any provision hereof can be waived, only by written instrument
making specific reference to this Agreement or specific Seller
Document or Purchaser Document signed by the party against whom
enforcement of any such amendment, supplement, modification or waiver
is sought. No action taken pursuant to this Agreement, including
without limitation, any investigation by or on behalf of any party,
shall be deemed to constitute a waiver by the party taking such action
of compliance with any representation, warranty, covenant or agreement
contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement or specific Seller Document or Purchaser
Document shall not operate or be construed as a further or continuing
waiver of such breach or as a waiver of any other or subsequent
breach. No failure on the part of any party to exercise, and no delay
in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of such
right, power or remedy by such party preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.
All remedies hereunder are cumulative and are not exclusive of any
other remedies provided by law.
10.7 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York without
giving effect to principles of conflicts of law.
10.8 Table of Contents and Headings. The table of contents
------------------------------
and section headings of this Agreement are for reference purposes only
and are to be given no effect in the construction or interpretation of
this Agreement.
10.9 Notices. All notices and other communications under
-------
this Agreement shall be in writing and shall be deemed given when
delivered personally, sent by nationally recognized overnight courier
or mailed by certified mail, return receipt requested, to the parties
(and shall also be transmitted by facsimile to the Persons receiving
copies thereof) at the following addresses (or to such other address
as a party may have specified by notice given to the other party
pursuant to this provision):
If to Purchaser:
c/o Dollar Financial Group, Inc.
Daylesford Plaza, Suite 210
1436 Lancaster Avenue
Berwyn, Pennsylvania 19312
Attention: Donald F. Gayhardt, Vice President - Corporate
Development
Telephone No.: (610) 296-3400
Telecopy No.: (610) 296-7844
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: William M. Gutowitz, Esq.
Telephone No.: (212) 310-8000
Telecopy No.: (212) 310-8007
If to ABC or the Shareholder:
20700 Southgate Parkway
Unit 1060
Maple Heights, Ohio 44137
Attention: Mr. Ed Kowit
with a copy to:
Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A.
The Tower at Erieview
Suite 2600
Cleveland, Ohio 44114-1824
Attention: Richard S. Rivitz, Esq.
Telephone No.: (216) 696-3311
Telecopy No.: (216) 696-1009
Any party may by notice change the address to which notice or other
communications to it are to be delivered or mailed.
10.10 Severability. If any provision of this Agreement
------------
is invalid or unenforceable, the balance of this Agreement shall
remain in effect.
10.11 Binding Effect; Assignment. This Agreement, the
--------------------------
Seller Documents and the Purchaser Documents shall be binding upon and
inure to the benefit of the parties and their respective successors
and permitted assigns. Nothing in this Agreement, any of the Seller
Documents or any of the Purchaser Documents shall create or be deemed
to create any third party beneficiary rights in any person or entity
not a party to this Agreement, any of the
Seller Documents or any of the Purchaser Documents except as provided
below. No assignment of this Agreement, any of the Seller Documents
or any of the Purchaser Documents or of any rights or obligations
hereunder or thereunder may be made by any party hereto or thereto
without the prior written consent of the other parties hereto or
thereto, as the case may be, and any attempted assignment without the
required consents shall be void; provided, however, that the Purchaser
-------- -------
may assign this Agreement and any of the Seller Documents or the
Purchaser Documents and any or all rights hereunder or thereunder
(including, without limitation, the Purchaser's rights to purchase the
Assets and the Purchaser's rights to seek indemnification hereunder)
(i) to any Affiliate of the Purchaser or (ii) after the Closing, to
any purchaser or transferee of any of the Assets transferred to
Purchaser hereunder or thereunder. Upon any such permitted
assignment, the references in this Agreement or any of the Seller
Documents or the Purchaser Documents to the Purchaser shall also apply
to any such assignee unless the context otherwise requires.
10.12 Bulk Transfer Laws. Purchaser hereby waives
------------------
compliance by ABC with the provision of any so called bulk sale or
bulk transfer Laws of any jurisdiction in connection with any of the
transactions contemplated hereby. ABC and the Shareholder, jointly
and severally, hereby indemnify and hold harmless the Purchaser
against any and all Losses which may be asserted by third parties
against the Purchaser or any of its Subsidiaries as a result of non-
compliance with any such bulk sale or bulk sale or bulk transfer Laws.
10.13 Counterparts. This Agreement may be executed
------------
by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts
shall together constitute one and the same instrument. Each
counterpart may consist of a number of copies hereof each signed by
less than all, but together signed by all of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first written above.
FINANCIAL EXCHANGE COMPANY OF OHIO, INC.
By:/s/ Donald F. Gayhardt, Jr.
------------------------------------------
Name: Donald F. Gayhardt, Jr.
Title:
ABC CHECK CASHING, INC.
By:/s/ Ed Kowit
------------------------------------------
Name: Ed Kowit
Title: President
/s/ Ed Kowit
---------------------------------------------
ED KOWIT
DFG Holdings, Inc. hereby guarantees the prompt payment and
performance by Financial Exchange Company of Ohio, Inc. of all of its
obligations under this Agreement.
DFG HOLDINGS, INC.
By:/s/ Donald F. Gayhardt, Jr.
------------------------------------------
Name: Donald F. Gayhardt, Jr.
Title:
NYFS06...:\47\41847\0008\1710\AGRD136B.180