EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement, dated as of June 30, 2003, is by and
among Cashland, Inc., an Ohio corporation ("Seller"), Schear Financial Services,
Inc., an Ohio corporation ("SFSI"), Lee Schear, a resident of Dayton, Ohio
("Schear"), The Mafre A. Brunner Irrevocable Trust dated May 12, 1993 ("Trust"),
and Cash America International, Inc., a Texas corporation ("Purchaser").
WITNESSETH:
WHEREAS, Seller owns and operates a business that consists of Cashland
Loan and Cash Services shops located at the locations identified on Schedule
1.0(a) attached hereto and incorporated herein by this reference (the
"Business").
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, all of the assets of Seller and the Business, including,
without limitation, the assets listed on Schedule 1.0(b) attached hereto and
incorporated herein by this reference (collectively, the "Assets"), but
excluding the assets of Seller listed on Schedule 1.0(c) attached hereto and
incorporated herein by this reference (the "Excluded Assets").
NOW, THEREFORE, in consideration of the mutual representations,
warranties and covenants herein contained, and on the terms and subject to the
conditions herein set forth, the parties hereto hereby agree as follows:
ARTICLE I
PURCHASE AND SALE
Section 1.1 Purchase and Sale of Assets. Subject to and upon the terms
and conditions contained herein, at the Closing (as defined below), Seller shall
sell, transfer, assign, convey and deliver to Purchaser, free and clear of all
security interests, liens, claims and encumbrances (other than the Assumed
Liabilities (as defined below)), and Purchaser shall purchase, accept and
acquire from Seller, the Assets.
Section 1.2 Purchase Price. The consideration from Purchaser to Seller
for the Assets shall consist of the following (the "Purchase Price"):
(a) a wire transfer of $31,900,000 ("Cash Purchase Price"),
payable in immediately available funds to Seller in such bank accounts
as designated by Seller in writing to Purchaser at least 24 hours prior
to the Closing;
(b) the issuance of the following number of shares of
Purchaser's $.01 par value common stock ("Shares") to Seller, with
500,000 of the Shares to be delivered to Escrow Agent (as defined
below) to be held and disposed of pursuant to the Escrow
Agreement (as defined below): (i) 1,000,000, plus (ii) the number
determined by dividing $8,000,000 by the Fair Market Value (as defined
below).
(c) the non-competition consideration, as set forth in the
Non-Competition Agreement (as defined below); and
(d) the Supplemental Payments (as defined below).
As used herein, the term "Fair Market Value" means the average per
share closing price of Purchaser's common stock on the New York Stock Exchange
for the twenty (20) trading days immediately preceding the day prior to the
Closing Date; provided, however, in no event shall the Fair Market Value be less
than $10.00 per share or greater than $15.00 per share. If, between the date of
this Agreement and the Closing Date, the Purchaser's outstanding common stock
shall have been changed into a different number of shares or different class by
reason of any reclassification, recapitalization, stock split, split-up,
combination or exchange of shares or a stock dividend or dividend payable in any
other securities shall be declared with a record date within such period, or any
similar event shall have occurred, the consideration to be delivered pursuant to
Section 1.2(b) shall be appropriately adjusted to provide to Seller the same
economic effect as contemplated by this Agreement prior to such event.
Section 1.3 Assumed Liabilities. In addition to the Purchase Price,
Purchaser will assume the liabilities and obligations of Seller that are
expressly listed on Schedule 1.3 attached hereto (collectively, the "Assumed
Liabilities"). Notwithstanding the foregoing, Purchaser does not agree to
assume, and shall not assume or pay, perform or discharge any Liabilities (as
defined below) or obligations of Seller other than the Assumed Liabilities. The
term "Liability" shall mean, with respect to any Person (as defined below), any
liability or obligation of such Person of any kind, character or description,
whether known or unknown, absolute or contingent, foreseen or unforeseen,
accrued or unaccrued, liquidated or unliquidated, secured or unsecured, joint or
several, due or to become due, vested or unvested, executory, determined,
determinable or otherwise and whether or not the same is required to be accrued
on the financial statements of such Person. The term "Person" shall mean an
individual, partnership, corporation, trust, limited liability company, limited
liability partnership, joint stock company, unincorporated association, joint
venture or any other entity or any government body.
Section 1.4 Supplemental Earn-Out Components. As part of the Purchase
Price and subject to the terms and conditions of this Agreement, Purchaser will
also pay Seller the Supplemental Payments, as described below.
(a) The first supplemental earn-out payment ("First
Supplemental Payment") will be an amount equal to (i) the earnings of
the Business before interest, taxes, depreciation and amortization as
determined in accordance with GAAP (as defined below) and calculated
using the "EBITDA Calculation Method" described on Exhibit A attached
hereto and incorporated herein by this reference ("EBITDA") for the
twelve-month period ending September 30, 2003, (ii) multiplied by five,
and (iii) reduced by $50 million. If the calculation of the First
Supplemental Payment produces a result that is less than or equal to
zero, there will be no First Supplemental Payment. Seller and Purchaser
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agree to use good faith, diligent and best efforts to mutually
cooperate in calculating and determining the amount of the First
Supplemental Payment and will use their best efforts to determine the
amount of the First Supplemental Payment as soon as reasonably
practicable after September 30, 2003; provided, however, if Purchaser
and Seller have not mutually agreed in writing as to the amount of the
First Supplemental Payment, if any, by November 15, 2003, then the
amount of the First Supplemental Payment, if any, shall be determined
pursuant to Section 1.4(f) below. Purchaser shall pay the First
Supplemental Payment to Seller promptly after the earlier of (aa) such
time as the parties mutually agree on such amount in writing, or (bb)
such time as the amount is established in accordance with Section
1.4(f) below, but in any event the parties will use diligent and good
faith efforts to cause such payment to be made no later than December
31, 2003.
(b) A second supplemental earn-out payment ("Second
Supplemental Payment") will be an amount equal to (i) the EBITDA of the
Business for the twelve-month period ending December 31, 2003
("12-31-03 EBITDA"), (ii) multiplied by five, and (iii) reduced by the
sum of (x) $50 million plus (y) the First Supplemental Payment. If the
calculation of the Second Supplemental Payment produces a result that
is less than or equal to zero, there will be no Second Supplemental
Payment. Seller and Purchaser agree to use good faith, diligent and
best efforts to mutually cooperate in calculating and determining the
amount of the Second Supplemental Payment and will use their best
efforts to determine the amount of the Second Supplemental Payment as
soon as reasonably practicable after the completion of the audit of the
consolidated income statement of Purchaser for the year ended December
31, 2003 by PricewaterhouseCoopers LLP ("PwC"); provided, however, if
Purchaser and Seller have not mutually agreed in writing as to the
amount of the Second Supplemental Payment, if any, by the 30th day
following the date such audit by PwC is completed, then the amount of
the Second Supplemental Payment, if any, shall be determined pursuant
to Section 1.4(f) below. Purchaser shall pay the Second Supplemental
Payment to Seller promptly after the earlier of (aa) such time as the
parties mutually agree on such amount in writing, or (bb) such time as
the amount is established in accordance with Section 1.4(f) below, but
in any event the parties will use diligent and good faith efforts to
cause such payment to be made no later than March 31, 2004. If the sum
of the Second Supplemental Payment plus the First Supplemental Payment
is greater than or equal to $10,000,000, then no additional earn-out
consideration or other supplemental payments will be payable by
Purchaser to Seller pursuant to this Agreement (other than the First
Supplemental Payment and the Second Supplemental Payment).
(c) If the sum of the First Supplemental Payment plus the
Second Supplemental Payment is less than $10,000,000, then a third
supplemental earn-out payment ("Third Supplemental Payment") will be
calculated in the manner described below and such Third Supplemental
Payment will be payable by Purchaser to Seller if the calculated amount
therefore is greater than zero. The Third Supplemental Payment, if
applicable, will be an amount equal to the lesser of (A) $60 million
minus the sum of (x) $50 million plus (y) the First Supplemental
Payment plus (z) the Second Supplemental Payment, or (B) the EBITDA of
the Business for the twelve-month period ending March 31, 2004, (i)
multiplied by five, and (ii) reduced by the sum of (x) $50 million plus
(y)
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the First Supplemental Payment plus (z) the Second Supplemental
Payment. If the calculation of the Third Supplemental Payment produces
a result that is less than or equal to zero, there will be no Third
Supplemental Payment. If the calculation of the Third Supplemental
Payment plus all previous Supplemental Payments produces a result that
is equal to $10,000,000, then no further earn-out consideration or
other supplemental payments will be payable by Purchaser to Seller
pursuant to this Agreement (other than the Third Supplemental Payment
and all previous Supplemental Payments). Seller and Purchaser agree to
use good faith, diligent and best efforts to mutually cooperate in
calculating and determining the amount of the Third Supplemental
Payment, if applicable, and will use their best efforts to determine
the amount of the Third Supplemental Payment, if applicable, as soon as
reasonably practicable after March 31, 2004; provided, however, if
Purchaser and Seller have not mutually agreed in writing as to the
amount of the Third Supplemental Payment, if applicable, by May 15,
2004, then the amount of the Third Supplemental Payment, if any, shall
be determined pursuant to Section 1.4(f) below. Purchaser shall pay the
Third Supplemental Payment, if any, to Seller promptly after the
earlier of (aa) such time as the parties mutually agree on such amount
in writing, or (bb) such time as the amount is established in
accordance with Section 1.4(f) below, but in any event the parties will
use diligent and good faith efforts to cause such payment to be made no
later than June 30, 2004.
(d) If the sum of the First Supplemental Payment plus the
Second Supplemental Payment plus the Third Supplemental Payment is less
than $10,000,000, then a fourth supplemental earn-out payment ("Fourth
Supplemental Payment") will be calculated in the manner described below
and such Fourth Supplemental Payment will be payable by Purchaser to
Seller if the calculated amount therefore is greater than zero. The
Fourth Supplemental Payment, if applicable, will be an amount equal to
the lesser of (A) $60 million minus the sum of (w) $50 million plus (x)
the First Supplemental Payment plus (y) the Second Supplemental
Payment, plus (z) the Third Supplemental Payment, or (B) the EBITDA of
the Business for the twelve-month period ending June 30, 2004 (i)
multiplied by five, and (ii) reduced by the sum of (w) $50 million plus
(x) the First Supplemental Payment plus (y) the Second Supplemental
Payment, plus (z) the Third Supplemental Payment. If the calculation of
the Fourth Supplemental Payment produces a result that is less than or
equal to zero, there will be no Fourth Supplemental Payment. After the
payment of the Fourth Supplemental Payment, if any, and even if the
aggregate of the Fourth Supplemental Payment plus all previous
Supplemental Payments is less than $10,000,000, no further earn-out
consideration or other supplemental payments (other than the Fourth
Supplemental Payment, if applicable, and all previous Supplemental
Payments) will be payable by Purchaser to Seller pursuant to this
Agreement. Seller and Purchaser agree to use good faith, diligent and
best efforts to mutually cooperate in calculating and determining the
amount of the Fourth Supplemental Payment, if applicable, and will use
their best efforts to determine the amount of the Fourth Supplemental
Payment, if applicable, as soon as reasonably practicable after June
30, 2004; provided, however, if Purchaser and Seller have not mutually
agreed in writing as to the amount of the Fourth Supplemental Payment,
if applicable, by August 15, 2004, then the amount of the Fourth
Supplemental Payment, if applicable, shall be determined pursuant to
Section 1.4(f) below. Purchaser shall pay the
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Fourth Supplemental Payment, if any, to Seller promptly after the
earlier of (x) such time as the parties mutually agree on such amount
in writing, or (y) such time as the amount is established in accordance
with Section 1.4(f) below, but in any event the parties will use
diligent and good faith efforts to cause such payment to be made no
later than September 30, 2004.
(e) All of the foregoing described supplemental payments are
referred to herein as the "Supplemental Payments." The Supplemental
Payments will consist of a Note (the "Note") payable for the amount of
the Supplemental Payments up to $5 million, and in the event the
Supplemental Payments exceed $5 million, the remainder will be payable
in cash. If the First Supplemental Payment is less than $5 million,
then any subsequent Supplemental Payments to be made to Seller pursuant
to this Section shall be made by increasing the principal amount of the
Note accordingly until the principal amount of the Note equals $5
million. Purchaser will pay all portions of the Supplemental Payments
that exceed the aggregate amount of $5 million to Seller in cash at the
time the applicable portion of the applicable Supplemental Payment
becomes due in accordance with this Section. The Note shall be in the
form of Exhibit B attached hereto and incorporated herein by this
reference, which, among other things, provides for the accrual of
interest from the applicable EBITDA Date (as defined below) for the
applicable Supplemental Payment. To the extent any of the Supplemental
Payments are to be payable in cash and do not become part of the
principal balance of the Note, Purchaser shall also pay Seller interest
on such cash amounts at the rate of 6% per annum commencing on the
applicable EBITDA Date (as defined below) for the applicable
Supplemental Payment and ending on the date Purchaser makes such cash
payment to Seller. As used herein, the "EBITDA Date" shall mean
September 30, 2003 for the First Supplemental Payment, December 31,
2003 for the Second Supplemental Payment, March 31, 2004 for the Third
Supplemental Payment and June 30, 2004 for the Fourth Supplemental
Payment.
(f) If Purchaser and Seller, despite using good faith,
diligent and best efforts to mutually cooperate in calculating and
determining the amount of any particular Supplemental Payment, cannot
agree in writing as to the amount of such Supplemental Payment within
30 days after the end of the calendar quarter in question, Purchaser
and Seller will promptly after the end of such 30 day period jointly
engage an independent third party accounting firm ("Firm 1") [other
than PwC or Duvall & Associates, Inc. ("Duvall")] to establish the
amount of such Supplemental Payment. Purchaser and Seller will use
their best efforts to cause Firm 1 to establish the amount of the
Supplemental Payment in question within 30 days after engaging it to do
so. If Purchaser and Seller cannot mutually agree on the selection of
Firm 1 within such 30 day period, then Purchaser and Seller shall each
engage an independent third party accounting firm (other than PwC or
Duvall) and each of such accounting firms (each, a "Selecting Firm")
will be engaged to mutually select another independent accounting firm
("Firm 2") (other than PwC or Duvall) to be engaged to establish the
amount of the applicable Supplemental Payment within 30 days after
being engaged to do so. Purchaser and Seller will use their best
efforts to cause either Firm 1 or Firm 2 (as the case may be) to
establish the amount of the applicable Supplemental Payment within 30
days after such accounting firm is
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engaged to do so. The amount of any Supplemental Payment determined by
Firm 1 or Firm 2 (as the case may be) in accordance with this Section
shall be binding on the parties hereto and shall be final and
unappealable. Purchaser and Seller will each be responsible for paying
one-half of the fees charged by Firm 1 or Firm 2 as the case may be. If
necessary, Purchaser shall be responsible for paying all of the fees of
the Selecting Firm it engages, if any, and Seller shall be responsible
for paying all of the fees of the Selecting Firm it engages, if any.
(g) For illustration and example purposes only, a sample
calculation of the Supplemental Payments is set forth on Schedule 1.4.
As used in this Agreement, the term "GAAP" means generally accepted
accounting principles as in effect in the United States as set forth in
the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or such
other principles as may be approved by a substantial segment of the
accounting profession, that are applicable to the circumstances in
question as of the date of determination, consistently applied. Prior
to Closing, Purchaser and Seller shall calculate the EBITDA of the
Business for the period from October 1, 2002 through May 31, 2003,
which shall be reflected on a statement signed by Purchaser and Seller
(the "5-31-03 EBITDA Statement").
(h) Notwithstanding anything herein to the contrary, the
provisions of this Section 1.4 shall survive the Closing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER, SFSI AND SCHEAR
Seller, SFSI and Schear hereby jointly and severally make the
representations and warranties set forth in this Article II to Purchaser, and
represent and warrant that such statements are true and correct as of the date
hereof. For purposes of this Agreement, the "Knowledge" of Seller shall include
the knowledge of Seller, SFSI and Schear. An individual will be deemed to have
"Knowledge" of a particular fact or other matter if:
(a) Such individual is actually aware of such fact or
other matter; or
(b) A reasonably prudent individual would be expected
to discover or otherwise become aware of such fact or other matter in
the course of conducting a "reasonable investigation" regarding the
accuracy of any representations or warranties contained in this
Agreement. A "reasonable investigation" shall be deemed to have been
made if such individual has made a "due inquiry" to any of the Key
Persons. As used herein, the term "Key Persons" shall mean the
individuals listed on Schedule 2.0.
A Person (other than an individual) will be deemed to have "Knowledge" of a
particular fact or other matter if any individual who is serving as a director
or officer of such Person has Knowledge of such fact or other matter (as such
Knowledge is described in subsections (a) and
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(b) of this paragraph above). A Key Person shall be deemed to have disclosed a
particular fact or other matter in the course of the "due inquiry" described
above if such Key Person is actually aware of such fact or other matter.
Furthermore, as used in this Agreement, the term "Unknowing" means that a Key
Person or any other Person in question has no Knowledge of the fact or other
matter in question. The Schedules to this Agreement and any supplements thereto
are incorporated herein by this reference. A disclosure in any Schedule will be
considered to be a disclosure in any other Schedule to the extent the relevance
of such disclosure to such other Schedule is reasonably apparent; provided,
however, Seller will use reasonable efforts to disclose any particular
disclosure item on each Schedule that is relevant to such particular disclosure
item. In the event of any inconsistency between the statements in the body of
this Agreement and those in the Schedules (other than an exception expressly set
forth as such in a Schedule with respect to a specifically identified
representation or warranty), the statements in the body of this Agreement will
control. The representations and warranties contained in this Agreement shall
not be affected or deemed waived or otherwise impaired or limited by reason of
any investigation or due diligence conducted by Purchaser or its
representatives.
Section 2.1 Organization and Good Standing. Seller and SFSI are
corporations duly organized, validly existing and in good standing under the
laws of the State of Ohio, with all requisite corporate power and authority to
carry on the business in which they are engaged, to own or hold under lease
their properties and assets, to execute and deliver this Agreement and the other
Transaction Documents (as defined below) and to consummate the transactions
contemplated hereby. Seller is duly qualified to do business as a foreign
corporation in, and is in good standing under the laws of, the State of
Kentucky. Seller and SFSI are duly qualified to do business as foreign
corporations and are in good standing under the laws of each state or other
jurisdiction in which either the ownership or use of the properties owned by
them, or the nature of the activities conducted by them, requires such
qualification. Except as disclosed on Schedule 2.1, Seller does not own,
directly or indirectly, any interest in any corporation, business trust, joint
stock company, partnership, joint venture, franchise, limited liability company
or other business organization or association. Seller has delivered to Purchaser
true and complete copies of the articles/certificate of incorporation, code of
regulations and all other organizational documents of Seller, and all of such
documents are in full force and effect on the date hereof. Additionally, the
officers and directors of Seller as of the date hereof are as set forth on
Schedule 2.1.
Section 2.2 Authorization and Validity. Except as disclosed on Schedule
2.2, Seller, SFSI and Schear have the absolute and unrestricted right, power and
authority to execute and deliver this Agreement and the other Transaction
Documents to be executed and delivered by either Seller or SFSI at or prior to
the Closing and to perform their obligations under this Agreement and the other
Transaction Documents, and, except as disclosed on Schedule 2.2, such action has
been duly authorized by all necessary action by each of Seller's and SFSI's
shareholders and board of directors. This Agreement has been, and subject to
obtaining the consents and approvals set forth in Schedule 2.3 and Schedule 2.4,
the other Transaction Documents will be at the Closing, duly executed and
delivered by each of Seller, SFSI and Schear. This Agreement constitutes, and
subject to obtaining the consents and approvals set forth in Schedule 2.3 and
Schedule 2.4, each of the other Transaction Documents at the Closing will
constitute, legal, valid and binding obligations of Seller, SFSI and Schear,
enforceable
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against Seller, SFSI and Schear (as applicable) in accordance with their
respective terms, except as may be limited by applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally or the availability of
equitable remedies.
Section 2.3 No Violation. Except as disclosed on Schedule 2.3, neither
the execution, delivery or performance of this Agreement or the Transaction
Documents nor the consummation of the transactions contemplated hereby or
thereby will (a) conflict with, or result in a violation or breach of the terms,
conditions or provisions of, or constitute a default under, the Articles of
Incorporation or code of regulations of Seller or SFSI, the trust document of
the Trust or any agreement, indenture or other instrument under which Seller,
Trust, Schear or SFSI is bound or to which any of the Assets are subject, or
result in the creation or imposition of any security interest, lien, charge or
encumbrance upon any of the Assets; or (b) cause any material change in the
rights or obligations of any party under any such agreement, indenture or other
instrument; or (c) violate or conflict with any judgment, decree, order,
statute, rule or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over Seller, SFSI, Trust, Schear
or the Assets; or (d) result in any shareholder of Seller or SFSI having the
right to exercise dissenters' appraisal rights.
Section 2.4 Consents. Except as set forth in Schedule 2.4, no consent,
authorization, approval, permit or license of, or filing with, any governmental
or public body or authority, or any lender of Seller or any Principal (as
defined below), or any other person or entity other than persons or entities
described on Schedule 2.9 is required to authorize, or is required in connection
with, the execution, delivery and performance of this Agreement or the
Transaction Documents and the consummation of the transactions contemplated
herein or therein on the part of Seller, SFSI, Trust or Schear.
Section 2.5 Consumer Loans. All loan transactions conducted in the
Business have been made in accordance with sections 1315.35 to 1315.44 of the
Ohio Revised Code or in accordance with sections 368.010 to 368.120 of the
Kentucky Revised Statutes, as the case may be, and are for convenience hereafter
referred to as "Consumer Loans." All Consumer Loans, Consumer Loan accounts,
loan documents, loan applications, loan files, customer checks, promissory notes
and other evidences of indebtedness reflected by Seller's books and records as
owed to and owned by Seller which are being transferred and sold to Purchaser
(collectively, the "Consumer Loans, Documents and Files"), represent bona fide
assets of Seller and bona fide transactions between Seller and the respective
parties to such transactions. Seller's books and records that are being
delivered to Purchaser contain an accurate record of the Consumer Loans,
Documents and Files, including, without limitation, for each loan written, all
loan application data and back-up documentation, all underwriting criteria and
documentation, all notices of adverse action, all promissory notes and loan
documents, the underlying check or other items securing or evidencing any
security for such loans, the amount loaned, and the lawful interest charge and
other lawful charges, if any, to accrue thereon. All interest, fees and charges
on each Consumer Loan included in the Consumer Loans, Documents and Files do not
exceed the maximum rate of interest, charges and fees allowed by Applicable Laws
(as defined below). In addition to, and without limiting the foregoing, the
Consumer Loans, Documents and Files are complete in every material respect and
comply with all Applicable Laws except for noncompliance, which would not have a
Material Adverse Effect. Attached to Schedule 2.5(a) is
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a true, complete and correct copy of Seller's standard agreements and standard
required underwriting information for the creation of Consumer Loans, Documents
and Files. Except as set forth on Schedule 2.5(b), each Consumer Loan, Document
and File has been created using such standard forms of agreement and such
standard underwriting information without material modification or substitution
(except as may be consistent with Seller's ordinary course of business -
provided that any such consistent material modification or substitution is
described in detail on Schedule 2.5(b)). The Consumer Loans, Documents and Files
represent or will represent valid and enforceable obligations arising from
transactions actually made or performed by Seller in the ordinary course of its
business; provided, however, the number of Consumer Loans, Documents and Files
will fluctuate between the date hereof and the Closing Date (as defined below)
in Seller's normal course of business, and such fluctuation will be consistent
with the Business Plan (as defined below). As used herein, the term "Customer
Receivables" means all customer receivables, including, without limitation, all
Consumer Loans included in the Assets, together with all other accounts
receivable of Seller. A summary description of all Customer Receivables is set
forth on Schedule 2.5(c). Except to the extent paid prior to the Closing Date,
such Customer Receivables are or will be valid and binding obligations of the
parties thereto enforceable against them in accordance with the terms of such
agreements; provided, however, at the Closing Date, some Consumer Loans will be
past due (but the proportion of the Consumer Loans that are past due as of the
Closing Date will be consistent with Seller's normal course of business and will
be consistent with the Business Plan). Except as set forth on Schedule 2.5(c),
there is no contest, claim, defense or right of setoff, other than returns in
the ordinary course of business of Seller, relating to the amount or validity of
the Customer Receivables, and Seller has not waived any material terms of any
Customer Receivable (except as may be consistent with Seller's ordinary course
of business - provided that any such consistent waiver of material terms is
described in detail on Schedule 2.5(b)). Schedule 1.0(b) lists the aggregate
active Consumer Loan balances on a store by store basis outstanding as of May
31, 2003.
Section 2.6 Financial Statements. Schedule 2.6(a) contains Seller's
audited balance sheet as of December 31, 2002, Seller's unaudited balance sheet
as of May 31, 2003, Seller's audited statements of income, retained earnings and
cash flows for the year ended December 31, 2002 and Seller's unaudited
statements of income, retained earnings and cash flows for the five-month period
ended May 31, 2003 (collectively, the "Seller Financial Statements") for
Seller's business and operations attributable to the Assets. The Seller
Financial Statements are true, correct and complete in all material respects and
fairly present the financial condition and results of operations of Seller with
respect to the Assets as of the dates and for the periods indicated. Except as
disclosed on Schedule 2.6(b), the Seller Financial Statements have been prepared
in accordance with GAAP and reflect the consistent application of GAAP
throughout the periods involved, except as expressly disclosed in the notes to
such financial statements and except for normal year-end adjustments in the case
of the Seller Financial Statements that were prepared for the five month period
ended May 31, 2003. Also contained in Schedule 2.6(a) is a descriptive list of
all management letters and management letter responses submitted in connection
with the preparation of the Seller Financial Statements and Seller has
previously delivered copies of all such management letters and management letter
responses to Purchaser.
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Section 2.7 Liabilities and Obligations. To Seller's Knowledge,
Schedule 2.7 reflects all Liabilities of Seller (other than liabilities or other
obligations reflected or reserved against in the Seller Financial Statements and
other than Current Liabilities [as defined below]) that relate to the Assets and
the operation thereof, arising out of transactions effected or events occurring
on or prior to the date hereof to the extent such Liabilities are not otherwise
disclosed on any other Schedule to this Agreement. To Seller's Knowledge, except
as set forth in any Schedule to this Agreement, Seller is not liable upon or
with respect to, or obligated in any other way to provide funds in respect of or
to guarantee or assume in any manner, any debt, royalty or other obligation or
dividend of any Person other than Seller to the extent the same would have a
Material Adverse Effect on the Assets or transactions contemplated by this
Agreement, and Seller has no Knowledge of any basis for the assertion of any
other such Liabilities of any nature or in any amount. Except as set forth in
Schedule 2.7, since December 31, 2002, Seller has not paid any dividends, or
made any distribution to, or in any way compensated or paid remuneration to, any
shareholder or any of their respective affiliates. As used herein, the term
"Current Liabilities" means any current liabilities, current expenses or other
current obligations of Seller incurred or arising in Seller's ordinary course of
the Business that are generally consistent with Seller's past practices and are
generally consistent with the Business Plan except for variations from the
Business Plan that would not have a Material Adverse Effect.
Section 2.8 Title and Use of Assets. Except as set forth on Schedule
2.8, Seller has, or prior to Closing will have, good, valid and marketable title
to all of the Assets, free and clear of all mortgages, liens, pledges, charges,
security interests, encumbrances or other third party interests of any nature
except for the lien of current taxes or assessments not yet due and payable or
liens and deposits (including mechanics', materialmen's and other liens) arising
in the ordinary course of business securing amounts not yet due and payable.
Upon consummation of the transactions contemplated hereby, Purchaser shall,
subject to the Assumed Liabilities, receive good, valid and marketable title to
the Assets free and clear of all security interests, liens, claims and
encumbrances, mortgages, pledges, restrictions, prior assignments and any other
similar claims other than for liens and deposits (including mechanics',
materialmen's and other liens) arising in the ordinary course of business
securing amounts not yet due and payable. Except as set forth on Schedule 2.8,
Seller owns, leases or otherwise possesses a transferable right to use all the
Assets (subject to the Assumed Liabilities) and will transfer all of such rights
to Purchaser at Closing.
Section 2.9 Material Agreements. Schedule 2.9 sets forth all Material
Agreements (as defined below) of Seller relating to the Assets and Assumed
Liabilities (collectively, the "Commitments"). As used herein, the term
"Material Agreements" means all Consumer Loans, all Leases (as defined below)
and all other written or oral documents, agreements, contracts, commitments,
letters of intent, leases, licenses, instruments, notes, binders and obligations
that entitle Seller to receive, or require Seller to pay, $5,000 or more and
that grant Seller rights, or impose obligations on Seller, that extend beyond
July 31, 2003. Except as set forth in Schedule 2.9 and Schedule 2.5, Seller has
not entered into, nor are the Assets or the business of Seller bound by, whether
or not in writing, any other Material Agreements. True, correct and complete
copies of the Commitments (including summaries of all oral Commitments), have
heretofore been delivered to Purchaser. No events, occurrences, acts or
omissions exist that, with the giving of notice or lapse of time or both, would
constitute material defaults by Seller under the
10
Commitments, and no penalties have been incurred nor are amendments pending,
with respect to the Commitments. There are no past defaults of Seller that
constitute existing material defaults by Seller under the Commitments. Except as
disclosed on Schedule 2.9 or Schedule 2.5, the Commitments are in full force and
effect and are valid and enforceable obligations of the Seller and, to the
Knowledge of Seller, the other parties thereto in accordance with their
respective terms, and no defenses, off-sets or counterclaims have been asserted
or, to the Knowledge of Seller, may be made by any party thereto, nor has Seller
waived any material rights thereunder. Except as disclosed on Schedule 2.9 or
Schedule 2.5, Seller has not received notice of any default with respect to any
Commitment that has not been cured. Except as disclosed on Schedule 2.9 or
Schedule 2.5, Seller has not received notice of any plan or intention of any
other party to any Commitment to exercise any right to cancel or terminate any
Commitment, and Seller has no Knowledge of any fact that would justify the
exercise of such a right.
Section 2.10 Patents, Trademarks, Service Marks, Copyrights and
Technology.
(a) Seller owns or possesses the right to use, all software,
patents, trademarks, service marks and copyrights included in the
Assets, if any, or possesses adequate licenses or other rights, if any,
therefor, without, to Seller's Knowledge, conflict with the rights of
others. Set forth in Schedule 2.10 is a true and correct description of
all (i) software, trademarks, trade-names, service marks and other
trade designations, including common law rights, registrations and
applications therefor, and all patents, copyrights and applications
currently owned, pending, or applied for, in whole or in part, by
Seller, and all licenses, royalties, assignments and other similar
agreements relating to the foregoing to which Seller is a party
(including expiration dates if applicable); and (ii) all agreements
relating to know-how or processes that Seller is licensed or authorized
to use by others, or which it licenses or authorizes others to use
(collectively, the "Proprietary Rights"); provided, however, Schedule
2.10 does not list all of Seller's software licenses for shrink-wrap
type pc-based software that is loaded, or intended to be loaded,
separately onto desk-top or lap-top computers ("Shrink-Wrap Software"),
to the extent such computer utilizes such Shrink-Wrap Software, but
such Schedule 2.10 does list each Shrink-Wrap Software program utilized
by Seller and the number of licenses/seats Seller lawfully possesses
for each such program.
(b) Except as set forth in Schedule 2.10, Seller has the sole
and exclusive right to use the Proprietary Rights without infringing or
violating the rights of any third parties. Except as set forth in
Schedule 2.4, no consent of third parties will be required for the
transfer of the Proprietary Rights to Purchaser or the use thereof by
Purchaser upon consummation of the transactions contemplated hereby.
Except as set forth in Schedule 2.10, the Proprietary Rights are freely
transferable, free and clear of all mortgages, licenses, liens,
pledges, charges, security interests, encumbrances or other third party
interests of any nature. No claim has been asserted by any person to
the ownership of or right to use any Proprietary Right or challenging
or questioning the validity or effectiveness of any license or
agreement constituting a part of any Proprietary Right, and to Seller's
Knowledge, there is no valid basis for any such claim. Except as set
forth in Schedule 2.10, each of the Proprietary Rights is valid and
subsisting, has not
11
been canceled, abandoned or otherwise terminated and, if applicable,
has been duly issued or filed.
(c) No claim has been asserted against Seller that, and no
inquiry has been made to Seller as to whether, any product, activity or
operation or use of the Proprietary Rights by Seller infringes upon or
involves, or has resulted in the infringement of, any proprietary right
of any other person, corporation or other entity; and no proceedings
have been instituted, are pending or, to Seller's Knowledge, are
threatened that challenge the rights of Seller with respect thereto.
Section 2.11 Trade Secrets and Customer Lists. Seller has the right to
use, free and clear of any claims or rights of others, all of Seller's trade
secrets, customer lists (subject to privacy law restrictions) and proprietary
information required for the marketing of all merchandise and services presently
sold or marketed by Seller.
Section 2.12 Compliance with Laws. Except as set forth on Schedule
2.12, Seller, the Assets and the Business are, and for the two full years prior
to the date hereof have been, in full compliance with all laws, regulations,
rules, statutes, orders, ordinances and licensing requirements that are or were
applicable to it or the conduct or operation of the Business or the ownership or
use of any of its assets, including without limitation the Assets ("Applicable
Laws") (except for any Unknowing failure to comply with an Applicable Law to the
extent such Unknowing failure to comply (individually or in the aggregate) did
not or does not have a Material Adverse Effect [as defined below]). Without
limiting the foregoing, Applicable Laws include, without limitation, all
federal, state and local laws, regulations, rules, statutes, orders, ordinances
and requirements, and specifically include, without limitation, the Bank Secrecy
Act, the U.S.A. Patriot Act, the Gramm-Leach-Bliley Act, the Consumer Reporting
Employment Clarification Act, the Consumer Collection Credit Act, the Fair Debt
Collection Practices Act, the Fair Credit Reporting Act, all truth-in-lending
related laws, all usury and consumer protection related laws, all federal, state
and local tax laws, all applicable zoning and licensing laws, all environmental
and human health and safety laws, all other federal, state and local laws,
regulations, rules, statutes, orders, ordinances and requirement, together with
all regulations, rules, orders and requirements promulgated under each of the
foregoing. To Seller's Knowledge, Seller has filed with the proper authorities
all necessary statements and reports with respect to the Assets (except for any
Unknowing failure to file any such statement or report to the extent such
Unknowing failure to file such report or statement (individually or in the
aggregate) did not or does not have a Material Adverse Effect). Except as set
forth on Schedule 2.12, no event has occurred or circumstance exists that (with
or without notice or lapse of time) constitutes or results in a violation by
Seller of, or a failure on the part of Seller to comply with, any Applicable
Laws that would affect the Assets, the Business, the Real Estate (as defined
below), the Assumed Liabilities or Seller (except for any Unknowing failure to
comply with an Applicable Law to the extent such Unknowing failure to comply
(individually or in the aggregate) did not or does not have a Material Adverse
Effect). To Seller's Knowledge, Seller has received no notice that any of the
Real Estate or the premises thereon leased by Seller pursuant to the Leases is
in violation of any Applicable Law. Except as otherwise noted on Schedule 2.12,
Seller possesses all necessary licenses, permits and governmental authorizations
that are required by applicable governmental agencies for Seller to conduct its
business in
12
accordance with Applicable Laws, (except for any Unknowing failure to possess
any such license, permit or authorization to the extent such Unknowing failure
to possess such license, permit or authorization (individually or in the
aggregate) did not or does not have a Material Adverse Effect) and all
applications required to have been filed for the renewal of such instruments
have been filed on a timely basis with the appropriate governmental bodies. A
list of Seller's licenses, permits and governmental authorizations is set forth
on Schedule 2.12 ("Permits").
Section 2.13 Litigation. Except as set forth in Schedule 2.13, there
are no lawsuits, proceedings, claims, legal actions or investigations
instituted, or to the Knowledge of Seller threatened, against, related to, or
affecting, or that would relate to or affect, Seller, the Business or any of the
Assets or that would prevent the consummation of the transactions contemplated
hereunder and under the Transaction Documents. To the Knowledge of Seller, no
event has occurred or circumstance exists that is reasonably likely as of the
date hereof to give rise to or serve as a basis for the commencement of any such
proceeding. Seller is not (a) subject to any continuing court or administrative
order, writ, injunction or decree applicable specifically to Seller or the
Assets, or (b) in default with respect to any such order, writ, injunction or
decree. Schedule 2.13 sets forth a description of all pending or, to the
Knowledge of Seller, threatened actions, suits, proceedings, disputes or
investigations in respect of Seller, setting forth, with respect to each action
or suit, the existence and extent of insurance related thereto.
Section 2.14 Environmental Matters. As used herein, "Hazardous
Substance(s)" means any and all solid, hazardous, toxic, harmful or radioactive
substances or wastes; pollutants; contaminants of any kind; or any other
materials or substances, including without limitation asbestos, presumed
asbestos-containing material or asbestos containing material, petroleum
substance/crude oil or any refined or unrefined fraction or derivative of crude
oil such as motor fuels, that are now or hereafter identified, classified,
defined, or regulated under any Applicable Law(s). With respect to environmental
compliance by Seller, the following representations and warranties are in
addition to, and do not limit, any of representations and warranties set forth
in Sections 2.12 and 2.13: (a) Seller has not caused or permitted, and to
Seller's Knowledge no other person has caused or permitted, any release of any
Hazardous Substance on any of the Real Estate and no circumstance, situation or
event related in any way to Seller's conduct or operation of its business on the
Real Estate or Seller's ownership or use of the Assets, constitutes, or may
constitute, a release or threatened release of any Hazardous Substance, and (b)
Seller has never stored, processed or disposed of any Hazardous Substance on any
Real Estate except for Hazardous Substances used in the Business and any such
use of such Hazardous Substances has been in accordance with all Applicable Laws
(except for any Unknowing failure to comply with an Applicable Law to the extent
such Unknowing failure to comply (individually or in the aggregate) did not or
does not have a Material Adverse Effect).
Section 2.15 Taxes. Seller has duly filed with the appropriate
governmental agencies all income, excise, corporate, franchise, property, sales,
use, payroll, withholding and other tax returns (including information returns)
and reports required to be filed by the United States or any state or any
political subdivision thereof or any foreign jurisdiction (collectively, "Tax
Returns and Filings"). All such Tax Returns and Filings are complete and
accurate in all material respects and properly reflect the taxes of Seller for
the periods covered thereby. Except
13
as set forth in Schedule 2.15, Seller has, to Seller's Knowledge, timely filed
all Tax Returns and Filings and has paid or accrued all taxes, penalties and
interest that have become due with respect to any returns that it has filed and
any assessments of which it is aware. Except as set forth in Schedule 2.15,
Seller currently is not the beneficiary of any extension of time within which to
file any tax return and Seller is not delinquent in the payment of any tax,
assessment or governmental charge. No tax deficiency or delinquency has been
asserted against Seller. There is no unpaid assessment, proposal for additional
taxes, deficiency or delinquency in the payment of any of the taxes of Seller
that has been asserted by any taxing authority. No basis for any additional
assessment of any taxes, penalties or interest with respect to Seller, the
Business or the Assets has been expressly asserted to Seller, or is, to Seller's
Knowledge, threatened. There is no taxing authority audit of Seller pending or,
to Seller's Knowledge, threatened, and the results of any completed audits are
properly reflected in the Seller Financial Statements. Seller has not granted an
extension to any taxing authority of the limitation period during which any tax
liability may be assessed or collected. There are no tax liens on any of the
Assets except for liens for current taxes and assessments not yet due and
payable. All monies required to be withheld by Seller and paid to governmental
agencies for all income, social security, unemployment insurance, sales, excise,
use, and other taxes have been (i) collected or withheld and either paid to the
respective governmental agencies or set aside in accounts for such purpose, or
(ii) properly reflected in the Seller Financial Statements. Seller has
previously delivered to Purchaser complete, true and correct copies of all of
the Tax Returns and Filings specifically described on Schedule 2.15. With the
exception of inventory, Seller paid sales or use tax on the purchase of all
tangible personal property included in the Assets to the extent such taxes were
required to be paid by Applicable Law.
Section 2.16 Finder's Fee. Seller has not incurred any obligation for
any finder's, broker's or agent's fee in connection with the transactions
contemplated hereby.
Section 2.17 Intentionally Deleted.
Section 2.18 Condition of Tangible Assets. To Seller's Knowledge, the
tangible Assets described on Schedule 1.0(b), including, without limitation, the
inventory and the furniture, fixtures and equipment are, and at the Closing will
be, physically present at the respective store and home office locations, with
the exception of those items disposed of in the ordinary course of business
prior to Closing, and in good operating condition and repair, ordinary wear and
tear excepted, and are usable in the ordinary course of Seller's business.
Section 2.19 Sufficiency of Assets. The Assets, including any Assets
provided through, or covered by, leases or contracts included in the Assumed
Liabilities constitute all of the assets, tangible and intangible, of any nature
whatsoever, necessary to operate the Business relating to the Assets
substantially in the manner operated by Seller as of the date hereof. Except as
expressly provided elsewhere in this Agreement, the Excluded Assets (other than
cash) are not necessary to the operation of the Business.
Section 2.20 Real Estate and Leases. With regard to all real estate
(including buildings and improvements) leased by Seller in connection with the
operation of the Assets ("Real Estate"), there is disclosed in Schedule 2.9 a
list of all such leases ("Leases"). Seller owns no
14
Real Estate. Each of the Leases is in full force and effect and constitutes
legal, valid and binding obligations of the respective parties thereto. Seller
is not and, to Seller's Knowledge, no other party to a Lease is, in default in
any material respect under any Lease nor has any event occurred which with the
passage of time or the giving of notice or both would constitute such a default.
Each Lease and each document that amends, renews, or supplements each Lease,
together with all written notices delivered or received in connection with each
such Lease and all subordination agreements, non-disturbance agreements and
other related agreements and documents executed in connection with each such
Lease are described on Schedule 2.9 and Seller has, prior to the date hereof,
delivered true and complete copies of each Lease and all of such related
documents to Purchaser. Set forth on Schedule 2.20 is a description of each
casualty, condemnation or eminent domain event that to Seller's Knowledge is
pending or threatened against any of the Real Estate. Schedule 2.20 also sets
forth a summary description of each architectural, design, construction,
remodeling or renovation project being conducted by or on behalf of Seller on
any of the Real Estate as of the date hereof which costs or will cost in excess
of $10,000 and all contracts related to any of such projects are described in
Schedule 2.9.
Section 2.21 Buildings and Structures. Except as described on Schedule
2.21 hereto, the leased premises under the Leases, leasehold improvements and
other fixed assets of Seller owned or leased by Seller and used in the Business
are, to Seller's Knowledge, structurally sound with no material defects, are in
good operating condition and repair, ordinary wear and tear excepted, and are
adequate for the uses to which they are being put, and, to Seller's Knowledge,
except as set forth on Schedule 2.21, none of such leased premises or
improvements is in need of maintenance or repairs except for ordinary, routine
maintenance and repairs that are not material in nature or cost and are not
related to the roof, foundation, structural components, exterior walls or
heating, ventilation and air conditioning equipment of the building, structure
or improvement.
Section 2.22 Collections, Check Cashing and Other Business. Except as
disclosed on Schedule 2.22, all Other Business Activities (as defined below) are
being conducted and transacted in accordance with all Applicable Laws (except
for any Unknowing failure to comply with an Applicable Law to the extent such
Unknowing failure to comply (individually or in the aggregate) did not or does
not have a Material Adverse Effect), in accordance with all of Seller's Policies
and Procedures (as defined below) related thereto and in accordance with all
Commitments that relate to such Other Business Activities. A summary description
of all Other Business Activities Seller is currently performing in the Business
or that Seller has, in the past five years, performed in the Business is set
forth on Schedule 2.22. Seller has all material permits, licenses, approvals and
consents necessary in order for Seller to lawfully conduct the Other Business
Activities. As used herein, "Other Business Activities" means all collection
activities, check cashing activities, insurance products and services, money
order and wire transfer products and services, tax preparation services and all
other products, services and business activities sold or conducted by the
Business other than the Consumer Loans.
Section 2.23 Intentionally Deleted.
Section 2.24 Absence of Certain Changes. Except as disclosed on
Schedule 2.24, since March 31, 2003, there has not been any material adverse
change in, or any event or condition
15
that would reasonably be expected to result in any material adverse change in,
the business, operations, assets, results of operations, or condition (financial
or otherwise) of the Business or the ownership or operation of the Assets or any
material portion thereof, all as the same are described in this Agreement and
the Schedules and Exhibits attached hereto, other than any changes in economic,
regulatory or industry conditions generally. Additionally, except as disclosed
on Schedule 2.24, since March 31, 2003 (i) the Business has been conducted by
Seller in the ordinary course consistent with past practice, (ii) Seller has
not, in respect of the Business or the Assets, incurred any material Liability,
engaged in any material transaction, or entered into any material agreement
outside the ordinary course of business consistent with past practice, and (iii)
Seller has not suffered any material loss, damage, destruction, or other
casualty to any of the Assets (whether or not covered by insurance), which would
constitute a Material Adverse Effect.
Section 2.25 Employees.
(a) Schedule 2.25 contains a complete and accurate list of the
following information for each officer and employee of Seller (including each
employee on leave of absence, deferral, or layoff status) (collectively,
"Seller's Employees"): name; job title; date of hire; current rate of pay;
earned vacation time; and bonus and other incentive compensation paid since
January 1, 2002 ("Compensation"). Except as disclosed in Schedule 2.25, no
independent contractors or consultants are used in the day-to-day operations of
the Assets.
(b) Seller has not violated, and will not violate as a result of the
transactions set forth in this Agreement, the Worker Adjustment and Retraining
Notification Act (the "WARN Act") or any similar state or local legal
requirement.
(c) To the Knowledge of Seller, no officer, director, agent, employee,
consultant, or contractor of Seller is bound by any contract or agreement,
whether oral or written, that purports to limit the ability of such officer,
director, agent, employee, consultant, or contractor (i) to engage in or
continue or perform any conduct, activity, duties or practice relating to the
business of Seller, or (ii) to assign to Seller or to any other person any
rights to any invention, improvement, or discovery included in the Assets. To
Seller's Knowledge, no former or current employee of Seller is a party to, or is
otherwise bound by, any contract or agreement, whether oral or written, that in
any way adversely affected, affects, or will affect the ability of Seller or
Purchaser to conduct the business as heretofore carried on by Seller.
16
Section 2.26 Labor Disputes.
(a) Except as disclosed in Schedule 2.26, Seller is, and for the two
full years prior to the date hereof has been, in compliance in all respects with
all Applicable Laws relating to employment practices, terms and conditions of
employment, equal employment opportunity, nondiscrimination, immigration, wages,
hours, benefits, collective bargaining, the payment of social security and
similar taxes and occupational safety and health (except for any Unknowing
failure to comply with an Applicable Law to the extent such Unknowing failure to
comply (individually or in the aggregate) did not or does not have a Material
Adverse Effect). Except as disclosed on Schedule 2.15, Seller is not liable for
the payment of any taxes, fines, penalties, or other amounts, however
designated, which have been assessed for Seller's failure to comply with any of
the foregoing Applicable Laws.
(b) Except as disclosed in Schedule 2.26, (i) Seller has not been, and
is not now, a party to any collective bargaining agreement or other labor
contract, (ii) there has not previously been, there is not presently pending or
existing, and to Seller's Knowledge there is not threatened, any strike,
slowdown, picketing, work stoppage or employee grievance process involving
Seller, (iii) to Seller's Knowledge no event has occurred or circumstance exists
as of the date hereof that would reasonably be expected to provide the basis for
any work stoppage or other labor dispute, (iv) there is not pending or, to
Seller's Knowledge, threatened against or affecting Seller any proceeding
relating to the alleged violation of any Applicable Laws pertaining to labor
relations or employment matters, including any charge or complaint filed with
the National Labor Relations Board or any comparable governmental body, and
there is no organizational activity or other labor dispute against or affecting
Seller or the Business, (v) no application or petition for an election of, or
for certification of, a collective bargaining agent is pending, (vi) no labor
related grievance or arbitration proceeding exists that might have a Material
Adverse Effect, (vii) there is no lockout of any employees by Seller, and no
such action is contemplated by Seller, and (viii) there has been no charge of
discrimination filed against or, to Seller's Knowledge, threatened against
Seller with the Equal Employment Opportunity Commission or any similar
governmental body.
Section 2.27 Employee Benefits.
(a) Set forth in Schedule 2.27 is a complete and correct list
of (a) all "employee benefit plans" as defined by Section 3(3) of
ERISA, which are written and covered or qualified under the Internal
Revenue Code of 1986, as amended, and the rules and regulations
thereunder (the "Code") or ERISA, and (b) any other plan, fund,
program, policy, arrangement, practice, custom and understanding
(whether written or oral) which provides or have provided benefits or
economic value to Seller's (or Seller's affiliates') employees or
former employees (and/or their dependants), including, without
limitation, bonus, incentive-compensation, deferred-compensation,
profit-sharing, stock-option, stock-appreciation-right, stock-bonus,
stock-purchase, employee-stock-ownership, savings, severance,
change-in-control, supplemental-unemployment, layoff,
salary-continuation, retirement, pension, health, life-insurance,
disability, accident, group-insurance, vacation, holiday, sick-leave,
fringe-benefit or welfare plan, any other employee compensation or
benefit plans and any trusts or escrows related to any of the
17
foregoing (whether qualified or nonqualified, written or unwritten) and
which is currently maintained by Seller (or Seller's affiliates) for
the benefit of Seller's (or Seller's affiliates') employees or former
employees (and/or their dependants) or for which Seller (or Seller's
affiliates) has (have) any current liability or obligation with respect
to any of Seller's (or Seller's affiliates') employees or former
employees (and/or their dependants), regardless of how (or whether)
liabilities for the provision of benefits are accrued or assets are
acquired or dedicated with respect to the funding thereof (collectively
the "Employee Plans"). Notwithstanding the foregoing, Employee Plans do
not include the Compensation described in Schedule 2.25.
(b) Seller has delivered, or will before Closing deliver, to
Purchaser true, accurate and complete copies of (i) all collective
bargaining agreements pursuant to which contributions to any Employee
Plan(s) have been made or obligations incurred (including both pension
and welfare benefits) by Seller, and all collective bargaining
agreements pursuant to which contributions are being made or
obligations are owed by Seller; and (ii) all summary plan descriptions,
summaries of material modifications, employee handbooks and other
material written communications regarding the Employee Plans. Seller,
upon Purchaser's reasonable request, will provide Purchaser access to
review the documents comprising each Employee Plan (or, with respect to
any Employee Plan which is unwritten, a summary written description of
eligibility, participation, benefits, funding arrangements, assets and
any other matters which relate to said Employee Plan).
(c) During the past five years, neither Seller nor any of its
"affiliates" have made or been required to make contributions to any
"multiemployer plan," as defined in Section 3(37) of ERISA. With
respect to the Employee Plans, Seller and all of the affiliates of
Seller have paid and discharged promptly when due all liabilities and
obligations arising under ERISA or the Code of a character which if
unpaid or unperformed might result in the imposition of a lien against
any of the Assets. For purposes of this Section only, an "affiliate" of
any person means any other person who, together with such person, would
be treated as a single employer under Section 414 of the Code or
Section 4001(a)(14) or 4001(b) of ERISA.
(d) Seller has, at all times, complied, and currently
complies, in all material respects with the applicable continuation
requirements for its welfare benefit plans, including (1) Section 4980B
of the Code (as well as its predecessor provision, Section 162(k) of
the Code) and Sections 601 through 608, inclusive, of ERISA, which
provisions are commonly referred to collectively as "COBRA" and (2) any
applicable state statutes mandating health insurance continuation
coverage for employees.
(e) Seller has maintained workers' compensation coverage as
required by applicable state law in the States of Ohio and Kentucky
through each of such State's applicable workers' compensation rules and
regulations and not by self-insurance or otherwise.
18
Section 2.28 Product Liability. There are no actions, suits, inquiries,
proceedings or investigations by or before any court or governmental or other
regulatory or administrative agency or commission pending or, to the Knowledge
of Seller, threatened, against or involving Seller relating to any product
alleged to have been manufactured or sold by Seller and alleged to have been
defective or improperly designed or manufactured, which, if adversely decided,
would have, either individually or in the aggregate, a Material Adverse Effect
Section 2.29 Intentionally Deleted.
Section 2.30 Business Plan. The business plan attached to Schedule 2.30
("Business Plan") is Seller's business plan for Seller's ongoing business
operations for all activities of Seller from and after the date hereof through
the end of 2004. Purchaser acknowledges that the Business Plan is only a
projection and that neither Seller nor SFSI nor Schear represent or guarantee
that the results projected in the Business Plan will be realized.
Section 2.31 Books and Records. The books of account and other
financial records of Seller, all of which have been made available to Purchaser,
are complete, accurate and correct in all material respects and represent
actual, bona fide transactions and have been maintained in accordance with sound
business practices, including, without limitation, the maintenance of a valid
and proper system of internal controls. Schedule 2.31 hereof also sets forth (i)
the name of each bank, savings institution or other person with which Seller has
an account or safe deposit box, (ii) the name, description and account numbers
for each of such bank accounts, (iii) the names and identification of all
persons authorized to draw thereon or to have access thereto, and (iv) the names
of all persons, if any, holding powers of attorney from Seller and a summary
statement of the terms thereof.
Section 2.32 Insurance. Schedule 2.32 sets forth a complete list of all
policies of, or binders for, fire, property, casualty, boiler, builder's risk,
business interruption, general liability, public liability, employer's
liability, worker's compensation, theft, burglary, employee dishonesty,
employment practices and all other forms of insurance, bonds or sureties owned
or held by Seller. All such policies, or binders thereof, are in full force and
effect, all premiums with respect thereto covering all periods up to and
including the respective dates set forth in Schedule 2.32 have been paid, and no
notice of cancellation or termination has been received with respect to any such
policy or binder. Such policies or binders (i) are sufficient for compliance
with all requirements of law currently applicable to Seller and of all
agreements to which Seller is a party or by which Seller is bound, (ii) provide
insurance coverage adequate for the Assets and operations of Seller, and (iv)
will remain in full force and effect through the respective dates set forth in
Schedule 2.32 without the payment of additional premiums. Schedule 2.32 also
identifies all risks that Seller has designated as being self-insured. Seller
has delivered certificates of insurance in compliance with the terms of all
agreements to which Seller is a party or by which Seller is bound to the extent
such agreements require Seller to deliver any such certificates of insurance to
any party.
Section 2.33 Privacy Notices. Seller has at all times complied with all
aspects of the Gramm-Leach-Bliley Act and, since the inception of such act, has
delivered privacy notices to each of its customers to whom such act requires
privacy notices to be delivered (except for any
19
Unknowing failure to comply with such act to the extent such Unknowing failure
to comply (individually or in the aggregate) did not or does not have a Material
Adverse Effect). Copies of all privacy disclosure notice forms Seller has
delivered to its customers since the inception of such act, together with a
description of which of Seller's customers received each of such notice forms
and when such customers received such forms is set forth on Schedule 2.33.
Section 2.34 Policies and Procedures. All of Seller's employee
policies, employee procedures, employee handbooks, employee guides or
instructions, operations manuals, software user manuals or any similar documents
or procedures are described on Schedule 2.34 ("Policies and Procedures"). Seller
has previously delivered full, true and complete copies of all Policies and
Procedures to Purchaser. To Seller's Knowledge, the Business is being operated
in compliance with all such Policies and Procedures except to the extent any
such non-compliance (individually or in the aggregate) would not have a Material
Adverse Effect.
Section 2.35 Franchising. Seller has not offered to sell to any person
or entity a "franchise" or "business opportunity" as those terms are defined in
the Trade Regulation Rule on Franchising promulgated by the Federal Trade
Commission or any applicable state business opportunity or franchise law.
Section 2.36 Bulk Sale. No bulk sale/transfer statute or law applies to
the transaction contemplated hereby and Purchaser will suffer no loss, cost or
expense because of the non-compliance of the parties hereto with any bulk
sale/transfer statute or law.
Section 2.37 Intentionally Deleted.
Section 2.38 Disclosure.
(a) The representations and warranties made by Seller, SFSI,
Trust and Schear in this Agreement, the express representations and
warranties, if any, made by Seller, SFSI, Trust and Schear in the other
Transaction Documents, and the statements contained in the Schedules to
this Agreement are true and correct in all material respects, state all
material facts related thereto and do not omit to state a material fact
necessary to make any of such representations and warranties or
statements herein or therein, in light of the circumstances in which
they were made, not misleading.
(b) Seller does not have Knowledge of any fact that has
specific application to Seller (other than general economic, regulatory
or industry conditions) and that would have a Material Adverse Effect
or, as far as Seller can reasonably foresee (based on conditions in
existence as of the date hereof), could reasonably be expected to have
a Material Adverse Effect, that has not been set forth in this
Agreement, or the Schedules or Exhibits hereto.
Section 2.39 Investment Representations.
(a) The Shares to be received by Seller will be acquired for
investment for Seller's own account, not as a nominee or agent for any
unrelated third party, and not with a view to the resale or
distribution of any part thereof to any unrelated third party,
20
and Seller has no present intention of selling, granting any
participation in, or otherwise distributing the same to any unrelated
third party, but subject to the ability of Seller to transfer shares to
an affiliate (within the meaning of Rule 405 promulgated under the
Securities Act of 1933, as amended (the "Securities Act")) of Seller.
Seller has no need for liquidity related to the acquisition of the
Shares, but Seller, SFSI, Trust and Schear (collectively, the "Seller
Group") contemplate that Seller may distribute the Shares to SFSI,
which may in turn distribute the Shares to Trust and Schear.
(b) The Seller Group, or a representative thereof, has
received and read or reviewed, and is familiar with, this Agreement and
the other agreements executed in connection with this Agreement and
confirms that all documents, books and records pertaining to the Seller
Group's investment in the Shares and requested by the Seller Group have
been made available.
(c) The Seller Group has had an opportunity to ask questions
and receive answers from Purchaser regarding the terms and conditions
of the offering of the Shares and about other information, documents
and records relative to Purchaser's business assets, financial
condition, results of operations and liabilities.
(d) Each member of the Seller Group is an experienced investor
in securities and acknowledges that it can bear the complete economic
risk of its investment and has such knowledge and experience in
financial or business matters that it is capable of evaluating the
merits and risks of the investment in the Shares, and each also is an
"accredited investor" within the meaning of Rule 501(a) promulgated
under the Securities Act.
(e) The acquisition of the Shares by the Seller Group is
consistent with the general investment objectives of the Seller Group.
The Seller Group understands that the acquisition of the Shares
involves a high degree of risk.
(f) The Seller Group understands that the Shares it is
acquiring are characterized as "restricted securities" under the
federal securities laws inasmuch as they are being acquired from
Purchaser in a transaction not involving a public offering and that
under such laws and applicable regulations such securities may not be
resold without registration under the Securities Act and applicable
state securities laws, except in certain limited circumstances. The
Seller Group further understands that the Share certificates will bear
a legend reflecting such limitations. In this connection, the Seller
Group represents that it is familiar with Rule 144 under the Securities
Act, as presently in effect, and understands the resale limitations
imposed thereby and by the Securities Act. The Seller Group agrees that
in no event will it make any other transfer or disposition of any of
the Shares unless and until, if requested by Purchaser, it shall have
furnished to Purchaser (at the expense of the Seller Group or
transferee) an opinion of counsel or other evidence, reasonably
satisfactory to Purchaser, to the effect that such transfer may be made
without restrictions under the Securities Act. The Seller Group
understands that Purchaser is under no obligation to register any of
the securities sold hereunder.
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(g) The Seller Group further understands that 500,000 of the
Shares shall be placed in escrow and released in accordance with the
terms and conditions of the Escrow Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants that the following are true and
correct as of the date hereof:
Section 3.1 Organization and Good Standing. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Texas, with all requisite corporate power and authority to carry on the
business in which it is engaged, to own or hold under lease its properties and
assets, to execute and deliver this Agreement and the other Transaction
Documents and to consummate the transactions contemplated hereby and thereby.
Purchaser, or an assignee of Purchaser permitted under Section 7.5, is, or will
be, duly qualified to do business as a foreign corporation in, and is, or will
be, in good standing under the laws of, the State of Ohio and the Commonwealth
of Kentucky as of the Closing Date. Purchaser has delivered to Seller complete
and correct copies of its Articles of Incorporation and by-laws.
Section 3.2 Authorization and Validity. Purchaser has the absolute and
unrestricted right, power and authority to execute and deliver this Agreement
and the other Transaction Documents and to perform its obligations under this
Agreement and the other Transaction Documents. This Agreement has been, and the
other Transaction Documents will be at the Closing, duly executed and delivered
by Purchaser. This Agreement constitutes, and the other Transaction Documents at
the Closing will constitute, legal, valid and binding obligations of Purchaser,
enforceable against Purchaser in accordance with their respective terms, except
as may be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or the availability of equitable remedies.
Section 3.3 No Violation. Neither the execution, delivery or
performance of this Agreement or the Transaction Documents nor the consummation
of the transactions contemplated hereby or thereby will (a) conflict with, or
result in a violation or breach of the terms, conditions and provisions of, or
constitute a default under, the Articles of Incorporation or bylaws of Purchaser
or any agreement, indenture or other instrument under which Purchaser is bound,
or (b) violate or conflict with any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or regulatory agency or body
having jurisdiction over Purchaser or the properties or assets of Purchaser.
Section 3.4 Consents. Except as expressly provided in this Agreement to
the contrary, no consent, authorization, approval, permit or license of, or
filing with, any governmental or public body or authority, any lender or lessor
or any other person or entity is required to authorize, or is required in
connection with, the execution, delivery and performance of this Agreement or
the Transaction Documents and the consummation of the transactions contemplated
thereby on the part of Purchaser.
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Section 3.5 Finder's Fee. Purchaser has not incurred any obligation for
any finder's, broker's or agent's fee in connection with the transactions
contemplated hereby except for any commissions Purchaser may have agreed in
writing to pay Stephens, Inc. ("Investment Banker") if the transaction
contemplated by this Agreement is consummated.
Section 3.6 Purchaser's Litigation. Except as set forth in Purchaser's
various filings with the Securities and Exchange Commission or in Purchaser's
most recent annual report to Purchaser's shareholders (Seller hereby
acknowledges its previous receipt of a copy of such annual report), there are no
lawsuits, proceedings, claims, legal actions or investigations instituted, or to
the knowledge of Purchaser threatened, against, related to, or affecting, or
that could relate to or affect, Purchaser or Purchaser's business that (a) is of
such a nature that they would be required to be disclosed in any filing
Purchaser is required under Applicable Law to hereafter make with the Securities
and Exchange Commission, or (b) would prevent the consummation of the
transactions contemplated hereunder and under the Transaction Documents.
Section 3.7 Purchaser's Common Stock. The issuance of the Shares
pursuant to this Agreement is not and will not be subject to any preemptive
rights, rights of first refusal, subscription or similar rights that have not
been properly waived. The Shares to be issued pursuant to this Agreement have
been duly authorized, and when issued pursuant to the terms of this Agreement
will be validly issued and outstanding, fully paid and non-assessable and free
from any lien or encumbrance (including any pre-emptive rights) and such Shares
will be approved for listing on the New York Stock Exchange, subject to official
notice of issuance.
Section 3.8 Issuance Valid. Subject to the truth and correctness of the
representations and warranties contained in Section 2.39 and to the Seller
Group's compliance with the agreements contained therein, the issuance of the
Shares will be exempt from the registration requirements of the Securities Act
and will have been registered or qualified (or are exempt from registration and
qualification) under the registration, permit or qualification requirements of
all applicable state securities laws.
Section 3.9 SEC Filings. Purchaser has filed with the U.S. Securities
and Exchange Commission (the "SEC") all reports required to be filed by Section
13 or 15(d) of the Securities Exchange Act of 1934 (the "1934 Act") during the
preceding twelve (12) months (all such reports collectively, the "SEC Filings").
To the Knowledge of Purchaser's Chief Executive Officer and Chief Financial
Officer, (a) the SEC Filings do not contain any untrue statements of any
material facts or omit to state any material facts necessary to make the
statements made, in light of the circumstances under which such statements were
made, not misleading with respect to the respective periods covered by the SEC
Filings; (b) the financial statements and other financial information included
in the SEC Filings fairly present in all material respects the financial
condition, results of operations and cash flows of Purchaser as of, and for, the
respective periods presented in the SEC Filings; and (c) the SEC Filings comply
in all material respects with the applicable requirements of the 1934 Act;
provided, however, as to Purchaser's Chief Executive Officer and Chief Financial
Officer, a "reasonable investigation" for purposes of Knowledge shall be deemed
to have been made if such individuals have made a "due inquiry" to
23
such key employees of Purchaser as such individuals deem reasonably appropriate
for purposes of making the SEC Filings.
ARTICLE IV
CLOSING
Section 4.1 Closing. Subject to the terms of Section 4.6 below, the
closing of the transactions contemplated under this Agreement (the "Closing")
shall take place at approximately 2:00 p.m. (Texas time) on or before the later
to occur of (a) July 31, 2003; or (b) seven (7) days after all of the conditions
set forth in Sections 4.2 and 4.3 below have been satisfied or fulfilled or
waived (the "Closing Date"). The Closing shall be conducted at the offices of
Cash America International, Inc., 1600 W. 7th Street, Fort Worth, TX 76102, or
such other time, date and place as the parties shall agree.
Section 4.2 Seller's Conditions. The obligation of Seller to consummate
the transactions contemplated under this Agreement is subject to the
satisfaction, prior to or at the Closing, of the following conditions (any of
which may be waived by Seller, in whole or in part):
(a) Representations and Warranties True. The representations
and warranties of Purchaser contained in Article III hereof shall be
true and correct in all material respects (provided that each of the
representations and warranties in Section 3.2 and each of the
representations and warranties of Purchaser that contains an express
materiality qualification must be accurate in all respects) as of the
date of this Agreement and at and as of the Closing Date as though then
made;
(b) Purchaser's Performance.
(i) All of the covenants and obligations
that Purchaser is required to perform or to comply
with pursuant to this Agreement at or prior to the
Closing (considered collectively), and each of these
covenants and obligations (considered individually),
must have been performed and complied with in all
material respects.
(ii) Purchaser must have delivered each of
the documents required to be delivered by it, and
made each of the payments required to be made by it,
pursuant to Section 4.5 and each covenant or
obligation of Purchaser in this Agreement that
contains an express materiality qualification, must
have been performed and complied with in all
respects.
(c) No Change in Legal Requirements. There shall not be in
effect any federal, state, local, or foreign or other law, ordinance,
regulation or statute or any injunction that prevents consummation of
any of the transactions contemplated by this Agreement.
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(d) No Material Adverse Change. No material adverse change in
the condition (financial or otherwise), operations, assets, liabilities
or business of Purchaser shall have occurred;
(e) WARN Act Notice Periods. Any and all requisite notice
periods under the Warn Act shall have expired;
(f) Legal Proceedings. No action, suit, or proceeding against
any party hereto or any of their respective affiliates shall be pending
or threatened before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction or before
any arbitrator wherein an unfavorable injunction, judgment, order,
decree, ruling, or charge would (a) prevent consummation of any of the
transactions contemplated by this Agreement, (b) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, or (c) affect adversely the right of Purchaser to own the
Assets or Seller to sell the Assets;
(g) Investment Banker Release. Purchaser shall have obtained,
and Seller shall have received, a release from Investment Banker ("IB
Release") releasing Purchaser and Seller from any and all claims that
Investment Banker may have against Purchaser and Seller in connection
with the transactions contemplated by this Agreement;
(h) Hart-Scott-Rodino Approval. Purchaser and Seller shall
have received approval of the transaction contemplated hereby from the
Department of Justice and/or the Federal Trade Commission either
through (a) the receipt of the written approval of such transaction
from such federal agencies, or (b) the expiration of the applicable
waiting period under the federal Hart-Scott-Rodino Antitrust
Improvements Act ("HSR Act");
(i) NYSE Listing. The Shares to be issued and delivered to
Seller pursuant to this Agreement shall have been approved for listing
on the New York Stock Exchange, subject to official notice of issuance;
(j) Supplemental Disclosure Agreement. Seller being satisfied,
in Seller's reasonable discretion, with the form and substance of the
Supplemental Disclosure Agreement;
(k) Warrant Holder Agreements. Seller shall have received
written agreements ("Warrant Holder Agreements") signed by each of
Seller's warrant holders in existence as of the Closing Date in form
and substance reasonably satisfactory to Purchaser and Seller
evidencing that such warrant holders will not exercise their "put"
rights, if any, to require Seller to purchase the warrants;
(l) 5-31-03 EBITDA Statement. Purchaser and Seller shall have
completed and signed the 5-31-03 EBITDA Statement; and
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(m) Subordination Agreement. Seller being satisfied, in
Seller's reasonable discretion, with the form and substance of the
"Subordination Agreement," as defined in the Note.
Section 4.3 Purchaser's Conditions. The obligation of Purchaser to
consummate the transactions contemplated under this Agreement is subject to the
satisfaction, prior to or at the Closing, of the following conditions (any of
which may be waived by Purchaser, in whole or in part):
(a) Representations, Warranties and Covenants True. The
representations and warranties of Seller contained in Article II hereof
shall be true and correct in all material respects (provided that each
of the representations and warranties in Sections 2.2, 2.5, 2.6, 2.12,
2.15, 2.27 and 2.39 and each of the representations and warranties that
contains an express materiality qualification must be accurate in all
respects) as of the date of this Agreement and at and as of the Closing
Date as though then made (without giving effect to any supplement to
the Schedules), and the covenants set forth in Sections 5.1 and 5.2
shall have been complied with in all material respects;
(b) No Material Adverse Change. No material adverse change in
the condition (financial or otherwise), operations, assets, Liabilities
or business of Seller related to the Assets as reflected in this
Agreement or the Schedules and Exhibits attached hereto shall have
occurred;
(c) Consents. Written consents or approvals shall have been
obtained by Seller and Purchaser from each party described in Section
2.4 and Section 2.9 and must be in full force and effect, including,
without limitation, the approval of this Agreement and the transactions
contemplated hereby by the Board of Directors of Seller and SFSI and by
the required amount of Seller's and SFSI's shareholders as determined
by relevant securities laws and their respective articles of
incorporation and code of regulations;
(d) Seller's Performance.
(i) All of the covenants and obligations that
Seller, SFSI, Trust and Schear are required
to perform or to comply with pursuant to
this Agreement at or prior to the Closing
(considered collectively), and each of these
covenants and obligations (considered
individually), must have been duly performed
and complied with in all material respects.
(ii) Seller, SFSI, Trust and Schear must have
delivered each of the documents required to
be delivered by them pursuant to Section
4.4, and each covenant or obligation of each
of Seller, SFSI, Trust and Schear in this
Agreement that contains an express
materiality qualification, must have been
performed and complied with in all respects.
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(e) WARN Act Notice Periods. Any and all requisite notice
periods under the Warn Act shall have expired;
(f) Legal Proceedings. No action, suit, or proceeding against
any party hereto or any of their respective affiliates shall be pending
or threatened before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction or before
any arbitrator wherein an unfavorable injunction, judgment, order,
decree, ruling, or charge would (a) prevent consummation of any of the
transactions contemplated by this Agreement, (b) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, or (c) affect adversely the right of Purchaser to own the
Assets or Seller to sell the Assets;
(g) Due Diligence. Purchaser being satisfied, in Purchaser's
sole and absolute discretion, with the results of Purchaser's due
diligence review of the Assets, including, without limitation, the
results of the following reviews, inspections and verifications:
1. A physical inspection of each store location included
in the Assets;
2. A physical inspection of Seller's home office and any
other office space utilized by Seller;
3. Meetings with Seller's senior management and Seller's
regional and store managers;
4. An analysis of the confirmation and transferability
of Customer Receivables and Consumer Loans, Documents
and Files;
5. A review of all of Seller's real property Leases and
other Commitments;
6. A review of Seller's employee files and a review of
Seller's employee contracts, if any;
7. A review of Seller's Employee Benefit Plans, Seller's
insurance arrangements, and Seller's Policies and
Procedures;
8. A review of Seller's financial information and all
relevant back-up documentation;
9. A review of Seller's accounting practices as they
specifically relate to Seller's reserves, including,
without limitation, loan reserves and loan reserve
expenses;
10. A review and verification of Seller's continued
operations relative to past years' performance and
projections;
11. Verification that all liens and claims are, or prior
to the Closing Date will be, removed from the Assets;
12. A review and verification of all other instruments,
documents and information, whether oral, written or
electronic that relate in any way to Seller's
business or the Assets;
13. A review of Seller's information systems, including
all hardware and software; and
27
14. A review of all of Seller's intellectual property
rights and the transferability thereof, including all
owned and licensed software, patents, trademarks and
copyrights.
(h) Financing. Purchaser shall have obtained financing for the
transaction contemplated hereby in such amounts and on such terms and
conditions as Purchaser deems necessary or advisable, in Purchaser's
sole and absolute discretion;
(i) Third Party Approvals. Purchaser and Seller shall have
received all such approvals necessary to consummate the transaction
contemplated hereby, including, without limitation, original copies of
any assignments of each Commitment described on Schedule 4.3 (the
"Lease/Contract Assignments"), with such Lease/Contract Assignments to
be in form and substance reasonably satisfactory to Purchaser and
Seller (or in the absence of any particular Lease/Contract Assignment
Seller and Purchaser shall have entered into a satisfactory arrangement
pursuant to Section 4.12 below), the written approval of the parties
whose approval may be required under Purchaser's various credit
agreements and other material contracts, and all permits and licenses
from the Ohio Superintendent of Financial Institutions, the Ohio
Department of Insurance, the Kentucky Department of Financial
Institutions and the Kentucky Department of Insurance that are
necessary for Purchaser to commence operating the Business on the
Closing Date;
(j) Hart-Scott-Rodino Approval. Purchaser and Seller shall
have received approval of the transaction contemplated hereby from the
Department of Justice and/or the Federal Trade Commission either
through (a) the receipt of the written approval of such transaction
from such federal agencies, or (b) the expiration of the applicable
waiting period under the HSR Act.
(k) Warrant Holder Approval. Purchaser shall have received the
Warrant Holder Agreements signed by each of Seller's warrant holders in
existence as of the Closing Date in form and substance reasonably
satisfactory to Purchaser and Seller evidencing that such warrant
holders will not exercise their "put" rights, if any, to require Seller
to repurchase the warrants.
(l) Continued Employment. Purchaser shall have received
confirmation, in form and substance satisfactory to Purchaser, that
substantially all of Seller's field level, technical and other
employees will become employees of Purchaser on the Closing Date, with
the terms of such employment to be satisfactory to Purchaser;
(m) Supplemental Disclosure Agreement. Purchaser being
satisfied, in Purchaser's sole and absolute discretion, with the form
and substance of the Supplemental Disclosure Agreement;
(n) Seller's Debts. Purchaser being satisfied, in Purchaser's
sole and absolute discretion, that all Liabilities of Seller that (i)
are secured by, create, or otherwise result in the filing, creation or
perfection of any, liens, security interests or any
28
other interest in the Assets, and (ii) are not Assumed Liabilities,
will be paid in full on or before the Closing Date without any penalty
or prepayment fees; and
(o) 5-31-03 EBITDA Statement. Purchaser and Seller shall have
completed and signed the 5-31-03 EBITDA Statement.
Section 4.4 Seller's Closing Documents. At the Closing, Seller shall
deliver, or cause to be delivered to Purchaser all of the following documents in
form and substance satisfactory to Purchaser:
(a) Certificates from the secretary or assistant secretary of
each of Seller and SFSI, certifying as to the names and true signatures
of the officers of Seller and SFSI authorized to sign this Agreement
and the other Transaction Documents to be delivered by Seller or SFSI
hereunder;
(b) Copies of (i) the resolutions unanimously and duly adopted
by Seller's shareholders and Seller's board of directors authorizing
the execution, delivery and performance by Seller of this Agreement and
each of the other Transaction Documents, and the consummation of all of
the other transactions hereunder and thereunder, and (ii) the articles
of incorporation and code of regulations, each certified as complete
and accurate as of the Closing Date by the secretary or assistant
secretary of Seller;
(c) Copies of (i) the resolutions unanimously and duly adopted
by SFSI's shareholders and SFSI's board of directors authorizing the
execution, delivery and performance by SFSI of this Agreement and each
of the other Transaction Documents, and the consummation of all of the
other transactions hereunder and thereunder, and (ii) the articles of
incorporation and code of regulations, each certified as complete and
accurate as of the Closing Date by the secretary or assistant secretary
of SFSI;
(d) A sworn affidavit from the Trustee of the Trust certifying
that the Trustee, acting in a fiduciary capacity on behalf of the
Trust, is authorized to execute, deliver and perform this Agreement and
each of the other Transaction Documents on behalf of the Trust, and
that the Trustee, acting in a fiduciary capacity on behalf of the
Trust, is authorized to consummate the transaction contemplated hereby
and all of the other transactions contemplated hereunder and thereunder
on behalf of the Trust;
(e) Certificates dated as of the Closing Date from (i) an
officer of Seller, (ii) an officer of SFSI, (iii) Trustee, acting in a
fiduciary capacity on behalf of the Trust, and (iv) Schear, certifying
that the conditions specified in Section 4.2 that have not otherwise
been waived in writing by Seller have been fully satisfied or waived by
Seller and that the representations and warranties made by Seller,
Schear, Trust and SFSI in this Agreement are true and correct as of the
Closing Date;
(f) An original copy of the Bill of Sale, in the form of
Exhibit C attached hereto and incorporated herein by this reference,
signed by Seller (the "Bill of Sale");
29
(g) An original copy of the Assignment and Assumption
Agreement in the form of Exhibit D attached hereto and incorporated
herein by this reference signed by Seller (the "Global Assignment");
(h) An original copy of the Loan Assignment and Assumption
Agreement in the form of Exhibit E attached hereto and incorporated
herein by this reference signed by Seller (the "Loan Assignment");
(i) The "Lease/Contract Assignments;
(j) Original Certificates of Title transferring any vehicles
included as part of the Assets to Purchaser signed by Seller;
(k) An original copy of any assignments of all trademarks,
patents, domain names, assumed names and other intellectual property
included in the Assets signed by Seller (the "Intellectual Property
Assignments");
(l) An original copy of the Non-Competition Agreement in the
form of Exhibit F attached hereto and incorporated herein by this
reference, signed by Seller, SFSI, Trust and Schear (the
"Non-Competition Agreement");
(m) An original copy of the Escrow Agreement in the form of
Exhibit G attached hereto and incorporated herein by this reference,
signed by Investment Banker as the escrow agent ("Escrow Agent"),
Seller, SFSI, Trust and Schear (the "Escrow Agreement");
(n) An original copy of the Supplemental Disclosure Agreement
signed by Seller, SFSI, Trust and Schear;
(o) Original copies of all telephone transfer documents
transferring Seller's telephone numbers included in the Assets to
Purchaser and signed by Seller (the "Telephone Transfer Agreements");
(p) The Warrant Holder Agreements signed by Seller, SFSI and
each of Seller's warrant holders.
(q) Pay-off letters from all of Seller's creditors who will be
paid at Closing out of the Purchase Price, together with appropriate
written releases from such creditors;
(r) An original closing statement evidencing the Purchase
Price and the final amount payable by Purchaser to Seller hereunder, as
the same may be adjusted by any applicable credits, deductions or
pro-rations to be made between the parties as of the Closing Date, if
any (the "Closing Statement");
(s) Subject to the terms of Section 4.16 below, an original
Preliminary Purchase Price Allocation Agreement ("Preliminary
Allocation Agreement") that
30
allocates, on a preliminary basis, the Purchase Price (together with
any other consideration, if any, that may be given by Purchaser to
Seller in connection with the transaction contemplated hereby to the
extent any other such consideration, if any, is required hereunder or
under any other Transaction Document) to the various Assets prepared by
Seller and approved by Purchaser, with both parties acting reasonably
and in good faith; provided, however, the amount allocated to the
Non-Competition Agreement shall equal the non-competition consideration
(as defined in Section 1.2(d); and
(t) Such other documents relating to the transactions
contemplated by this Agreement as Purchaser may reasonably request.
Section 4.5 Purchaser's Closing Documents. At the Closing, Purchaser
shall deliver, or cause to be delivered to Seller all of the following documents
in form and substance satisfactory to Seller:
(a) A certificate of the secretary of Purchaser, certifying as
to the names and true signatures of the officers of Purchaser
authorized to sign this Agreement and the other Transaction Documents
to be delivered by Purchaser hereunder;
(b) Copies of (i) the resolutions duly adopted by Purchaser's
board of directors authorizing the execution, delivery and performance
by Purchaser of this Agreement and each of the other Transaction
Documents, and the consummation of all of the other transactions
hereunder and thereunder, and (ii) the articles of incorporation and
bylaws, each certified as complete and accurate as of the Closing Date
by the secretary of Purchaser;
(c) A certificate dated as of the Closing Date from an officer
of Purchaser certifying that the conditions specified in Section 4.3
that are not otherwise waived in writing by Purchaser have been fully
satisfied or waived by Purchaser and that the representations and
warranties made by Purchaser in Article III above are true and correct
as of the Closing Date;
(d) The Cash Purchase Price, as the same may be adjusted, as
evidenced by the Closing Statement;
(e) The original Shares (including the 500,000 Shares to be
delivered to the Escrow Agent to be held under the Escrow Agreement as
the escrowed funds thereunder [the "Escrow Funds"]);
(f) Original copies of the Bill of Sale, Global Assignment,
Loan Assignment, Lease/Contract Assignments, Intellectual Property
Assignments, Non-Competition Agreement, Escrow Agreement, Supplemental
Disclosure Agreement, Telephone Transfer Agreements, Closing Statement
and, subject to the terms of Section 4.16 below, the Preliminary
Allocation Agreement, each executed by Purchaser;
(g) The IB Release signed by Investment Banker;
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(h) Such other documents relating to the transactions
contemplated by this Agreement as Seller may reasonably request.
Section 4.6 Termination by Parties. By notice given prior to or at the
Closing, this Agreement may be terminated as follows:
(a) By mutual agreement of Purchaser and Seller;
(b) By Purchaser if a material breach of any provision of this
Agreement has been committed by Seller, SFSI, Trust or Schear and such
breach has not been cured to Purchaser's satisfaction or otherwise
waived by Purchaser;
(c) By Seller if a material breach of any provision of this
Agreement has been committed by Purchaser and such breach has not been
cured to Seller's satisfaction or otherwise waived by Seller; or
(d) By either party hereto if the Closing has not occurred on
or before August 15, 2003, unless a later date for Closing is mutually
agreed to in writing by the parties; provided, however, a party hereto
may not terminate this Agreement pursuant to this Section 4.6(d) if the
Closing has not occurred within the time contemplated by this Section
4.6(d) as a result of a material breach of this Agreement by the party
attempting to terminate this Agreement.
It is specifically understood and agreed by the parties that Purchaser
may terminate this Agreement at any time during its due diligence review if it
determines from such due diligence review that the transactions contemplated
herein are unacceptable, in Purchaser's sole discretion.
Section 4.7 Effect of Termination. If this Agreement is terminated
pursuant to Section 4.6, all further obligations of the parties under this
Agreement will terminate and, except as expressly provided below, such
termination shall be the sole remedy of the parties and none of the parties
shall have any further liability hereunder and all further obligations of the
parties under this Agreement will terminate, except that the obligations of each
party contained in Sections 2.16, 3.5, 4.7, 6.7, 7.1, 7.2 and 7.3 hereof will
survive such termination; provided, however, that if this Agreement is
terminated by a party hereto because of the breach of this Agreement by another
party hereto and if such breach is (a) a breach of any representation or
warranty made by the breaching party if such breaching party had Knowledge of
the breach on the date on which such representation or warranty was made (but
only if (x) such breach is not promptly brought to the attention of the other
party pursuant to Section 5.4 below, and (y) such breach relates to a fact or
circumstance that has a Material Adverse Effect), or (b) attributable to the
fraud, bad faith or willful misconduct of the breaching party, then the
terminating party may pursue all damages, rights and remedies available to such
party hereunder or at law or in equity as a result of such breach.
Section 4.8 Possession. Possession of the Assets will be delivered from
Seller to Purchaser on the Closing Date. Following the Closing Date, both
parties agree to cooperate with each other so that there is an orderly transfer
of the business operations of the Business from Seller to Purchaser. This
Section 4.8 shall survive the Closing.
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Section 4.9 Transaction Documents. As used in this Agreement, the term
"Transaction Documents" means this Agreement and the other agreements,
certificates, instruments and documents contemplated hereby to be executed and
delivered by any party to this Agreement at or prior to the Closing.
Section 4.10 Human Resources.
(a) Subject to Seller's express written permission and to
Seller's reasonable directions as to timing and other matters,
Purchaser may discuss job opportunities with Seller's Employees prior
to the Closing Date and Seller will cooperate with Purchaser in such
efforts.
(b) Seller will terminate the employment of all Seller's
Employees who have accepted Purchaser's offer of employment and have
satisfied all of Purchaser's conditions to employment prior to the
Closing Date (such persons are referred to herein as the "Accepting
Seller's Employees"), with such termination to be effective as of 11:59
p.m. (Ft. Worth, Texas time) on the Closing Date (the "Effective
Termination Time"). The employment of each Accepting Seller's Employees
shall be deemed to begin at 12:01 a.m. (Ft. Worth, Texas time) on the
day immediately following the Closing Date (the "Effective Hire Time").
Seller shall be responsible for and pay all obligations, costs,
expenses and liabilities as employer with regard to its employees
(including without limitation, the Seller's Employees and Accepting
Seller's Employees) that occur during or relate to periods on or prior
to the Effective Termination Time (and that occur on or after the
Effective Termination Time for Seller's Employees who do not become
Accepting Seller's Employees), and that relate to Seller's employment
or termination of employment of such persons. Purchaser shall be
responsible for and pay all obligations, costs, expenses and
liabilities as employer with regard to its own employees (including,
without limitation, all Accepting Seller's Employees who become
employees of Purchaser at the Effective Hire Time) that occur during or
relate to periods on or after the Effective Hire Time and that relate
to Purchaser's employment or termination of such persons.
Notwithstanding the foregoing, nothing in this Agreement makes Seller
liable for or requires indemnification of Purchaser for claims alleging
Purchaser's wrongful failure to hire or wrongful termination of any
former employees of Seller.
(c) Purchaser intends to offer and will use its commercially
reasonable good faith efforts to provide medical benefits and other
customary benefits to Accepting Seller's Employees with their
participation and eligibility to be effective as of the Effective Hire
Time, but the terms of such benefits are still subject to determination
by Purchaser in its sole discretion. Within five days after the
execution of this Agreement, Purchaser will provide summary
descriptions of Purchaser's employee benefit plans for Seller's review.
(d) If the Closing does not occur for any reason, Purchaser
agrees that Purchaser will not directly solicit any of Seller's
employees for employment with Purchaser or any of its affiliates for a
period of one year following the date this Agreement is terminated.
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This Section 4.10 shall survive termination of this Agreement and shall
survive the Closing.
Section 4.11 Permits. The Parties agree that at the Closing, the
conveyance of the Permits (excluding any sales/use tax related permits which are
not a part of the Assets and which are not to be conveyed from Seller to
Purchaser at the Closing) from Seller to Purchaser shall be limited to only such
interest in the Permits as Seller has the right to convey to Purchaser in
accordance with all Applicable Laws and Purchaser agrees and understands that
any operation of the Assets by Purchaser after the Closing may be conditioned on
Purchaser obtaining certain permits and licenses in its own name, including
re-issued versions of the Permits, to the extent required by Applicable Law.
Section 4.12 Nonassignability of Assets. Notwithstanding anything in
this Agreement to the contrary, this Agreement shall not constitute an agreement
to sell, assign, sublease, transfer, convey or deliver any Asset or any claim or
right or any benefit arising under or resulting from such Asset if such sale,
assignment, sublease, transfer, conveyance or delivery is prohibited by any
Applicable Law or would require the consent or approval of any governmental
authority or other person and such consent or approval is not obtained prior to
Closing. In the event that the Closing proceeds without the sale, assignment,
sublease, transfer, conveyance or delivery of any such Asset and such Asset does
not become an Excluded Asset by mutual agreement of the parties, then following
the Closing, the parties shall use their commercially reasonable efforts, and
cooperate with each other, to obtain promptly the applicable consents or
approvals; provided, however, that no party shall be required to pay any
consideration therefor other than filing, recordation or similar fees which
shall be paid by the party who is required by any legal requirements or course
of dealing to do so. Pending receipt of such consent or approval, the parties
shall cooperate with each other in any mutually agreeable, reasonable and lawful
arrangements designed to provide to Purchaser the benefits of use of such Asset.
Once consent or approval for the sale, assignment, sublease, transfer,
conveyance or delivery of any such Asset not sold, assigned, subleased,
transferred, conveyed or delivered at the Closing is obtained, Seller shall
sell, assign, transfer, convey and deliver such Asset to Purchaser at no
additional cost to Purchaser. To the extent that any such Asset cannot be
transferred or the full benefits of use of any such Asset cannot be provided to
the Purchaser following the Closing pursuant to this Section 4.12, Purchaser and
Seller shall enter into any mutually agreeable commercially reasonable
arrangements (including subleasing, sublicensing or subcontracting) necessary to
provide to Purchaser the economic (taking into account tax costs and benefits)
and operational equivalent, to the extent permitted, of obtaining such consent
or approval and the performance by Purchaser of the obligations thereunder;
provided, however, Seller and Purchaser must use good faith and commercially
reasonable efforts to obtain any consents or approvals necessary in order for
any of such contracts to be effectively assigned to Purchaser and such efforts
shall continue until such consents or approvals are obtained or until it is
determined by either Seller or Purchaser that such consents or approvals cannot
be reasonably obtained, whichever comes first; provided further, however, that
neither Seller nor Purchaser shall be required to expend funds to obtain any
such consent. Seller shall hold in trust for and pay to Purchaser promptly upon
receipt thereof, all income, proceeds and other monies received by Seller in
connection with its use of any Asset (net of any taxes and any other costs
imposed upon
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Seller) that are intended to be transferred hereunder but which transfer is
prohibited. This Section 4.12 shall survive the Closing.
Section 4.13 Tax Escrow. The parties acknowledge Purchaser's obligation
to withhold a portion of the Purchase Price pursuant to the requirements of
Sections 5739.14, 5747.06 and 5747.07 of the Ohio Revised Code (collectively,
the "Ohio Tax Code Provisions") and pursuant to the requirements of Section
139.670 of the Kentucky Revised Statutes (the "Kentucky Tax Code Provisions").
The Escrow Funds being held pursuant to the Escrow Agreement shall serve as
Purchaser's Purchase Price holdback for purposes of satisfying the Ohio Tax Code
Provisions and the Kentucky Tax Code Provisions (collectively, the "Tax Holdback
Provisions"). After Purchaser (i) receives from Seller a copy of a letter,
certificate or any other reasonable documentation issued by the Ohio Tax
Commissioner or such other applicable governing body (collectively, the
"Commissioner") that is sufficient to evidence that (a) Seller has paid all
taxes described in the Ohio Tax Code Provisions which accrued in connection with
the Business through the Closing Date, and (b) Purchaser shall have no successor
liability for such taxes and will not be held personally liable for such taxes
("Ohio No Tax Due Letter"), and (ii) receives from Seller a copy of a letter,
certificate or any other reasonable documentation issued by the Kentucky Revenue
Cabinet or such other applicable governing body (collectively, the "Cabinet")
that is sufficient to evidence that (a) Seller has paid all taxes described in
the Kentucky Tax Code Provisions which accrued in connection with the Business
through the Closing Date, and (b) Purchaser shall have no successor liability
for such taxes and will not be held personally liable for such taxes ("Kentucky
No Tax Due Letter"), then Purchaser shall no longer be entitled to cause the
Escrow Agent to release any portion of the Escrow Funds for purposes of
complying with the Tax Holdback Provisions. If, however, either the Commissioner
or the Cabinet pursues a claim against Purchaser for unpaid taxes of Seller, the
parties agree that Purchaser may cause the Escrow Agent to disburse directly to
the Commissioner or the Cabinet, as the case may be, such portion of the Escrow
Funds, in the manner contemplated in the Escrow Agreement, as may be necessary
to satisfy such claim. Seller's sole recourse for the amount so paid to either
the Commissioner or the Cabinet by Purchaser or the Escrow Agent shall be
against the applicable State and the applicable State department of revenue
(either the Commissioner or the Cabinet, as applicable) and not against
Purchaser or Escrow Agent. Immediately following the Closing Date, Seller will
diligently, continuously and in good faith pursue the receipt of (i) the Ohio No
Tax Due Letter from the Commissioner, and (ii) the Kentucky No Tax Due Letter
from the Cabinet. This Section 4.13 shall survive the Closing.
Section 4.14 Prepaid Amounts; Income and Expense Prorations. At the
Closing, appropriate adjustments will be made to the Cash Purchase Price to
equitably prorate (a) all prepaid rents, real estate taxes, personal property
taxes, casualty insurance (to the extent Seller is reimbursing a landlord
therefore), and common area maintenance charges, to the extent the same have
been paid or are payable under the Assumed Liabilities, and (b) all other
prepaid or delinquent amounts assumed by Purchaser as a part of the Assumed
Liabilities, all so that Purchaser pays for all amounts attributable to the
period of time on and after the Closing Date and Seller pays for all amounts
attributable to the period of time prior to the Closing Date. All security and
other deposits made by Seller in connection with any of the Assumed Liabilities
shall be deemed Assets. Except as provided in Section 4.15 below, the parties
also agree that all income earned before the Closing Date shall be credited or
received by Seller, and all income
35
earned or accrued on or after the Closing Date shall be credited and received by
Purchaser; and all expenses and liabilities accrued before the Closing Date
shall be paid by Seller, and all expenses and liabilities accrued on or after
the Closing Date shall be paid by Purchaser. To the extent any adjustment under
this Section cannot be reasonably determined at Closing, the parties hereto
agree to cooperate with each other diligently and in good faith to make any
equitable adjustments as may be appropriate or required under this Section as
soon as reasonably practicable after the Closing Date. This Section 4.14 shall
survive the Closing.
Section 4.15 Cash, Checks and Collections. The Cash Purchase Price
shall be increased to reflect any of Seller's cash on hand that Purchaser
elects, in Purchaser's sole discretion, to buy from Seller at the Closing.
Notwithstanding anything contained in Section 4.14 to the contrary, the
following adjustments shall also be made as soon as reasonably practical on or
after the Closing Date:
(a) Payments on the following checks and ACH collection
activity shall be the sole property of Seller and Seller shall be
entitled to the proceeds thereof (including any nsf and other
collection fees related thereto):
(i) all checks deposited and ACHs initiated by
or on behalf of Seller into the banking
system that clear prior to the Closing Date,
and
(ii) all First Deposit Checks (as defined below)
deposited into the banking system by or on
behalf of Seller prior to the Closing Date
if such First Deposit Checks clear upon
their first deposit into the banking system,
even if such First Deposit Checks do not
finally clear until after the Closing Date.
(b) Payments on the following checks and ACH collection
activity shall be the sole property of Purchaser and Purchaser shall be
entitled to the proceeds thereof (including any nsf and collection fees
related thereto):
(i) except for First Deposit Checks, all checks
deposited and ACHs initiated by or on behalf
of Seller or Purchaser into the banking
system before, on or after the Closing Date
and that clear on or after the Closing Date,
and
(ii) all First Deposit Checks deposited into the
banking system by or on behalf of Seller
prior to the Closing Date that are returned
unpaid in whole or in part at any time on or
after the Closing Date.
As used herein, "First Deposit Checks" shall mean all checks that are deposited
into the banking system by or on behalf of Seller for the first time and have
not at the time of such first deposit ever (x) been returned unpaid for any
reason, or (y) otherwise been deposited for payment in the banking system by
Seller. As described in this Section, checks and ACH initiations include
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checks and/or ACH initiations generated from Seller's payday loan, check cashing
or collections activity and checks and/or ACH initiations payable or granted to
Seller as consideration for any other goods or services provided by Seller. The
parties will cooperate with each other diligently and in good faith after the
Closing Date in order to reconcile the amounts to which each party is entitled
pursuant to this Section as soon as reasonably practical after the Closing Date.
This Section 4.15 shall survive the Closing.
Section 4.16 Final Allocation Agreement. The parties hereto hereby
agree to prepare and execute a Joint Final Purchase Price Allocation Agreement
("Final Allocation Agreement"), in form and substance reasonably satisfactory to
Purchaser and Seller, within 60 days following the Closing Date, with such Final
Allocation Agreement to amend and restate the Preliminary Allocation Agreement
by taking into account all data that may not have been in sufficiently final
form as of the Closing Date, as well as taking into account all post-closing
adjustments and reconciliations made between the parties (including, without
limitation, any adjustments or reconciliations made pursuant to Sections 4.14
and 4.15 above). The parties will cooperate with each other diligently and in
good faith after the Closing Date in order to mutually agree upon the terms of
the Final Allocation Agreement. This Section 4.16 shall survive the Closing.
Section 4.17 Closing after July 31, 2003. If the Closing occurs after
July 31, 2003 for any reason other than a delay caused by Seller's breach of
this Agreement, Purchaser shall pay-off any bank debt that is borrowed by Seller
and actually funded to Seller after July 31, 2003 ("New Debt") to the extent (i)
such New Debt is reasonably necessary to the operation of the Business in its
ordinary course, (ii) such New Debt is borrowed in a manner that is reasonably
consistent with Seller's past borrowing practices, (iii) such New Debt does not
have a Material Adverse Effect, and (iv) the terms of such New Debt are
arms-length terms consistent with general market conditions and provide for
prepayment without any penalty; provided, however, that Seller must (y) maintain
its accounts payable payment practices and its cash levels in a manner
consistent with its established policies and past practices and (z) furnish to
Purchaser a statement of uses for the proceeds of such New Debt; and further
provided, however, that any amounts paid by Purchaser in order to pay-off the
New Debt shall be in addition to the Purchase Price. This Section 4.17 shall
survive the Closing.
Section 4.18 Survival. The terms of this Article IV shall survive any
termination of this Agreement and shall survive the Closing in the manner
described herein, as applicable.
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ARTICLE V
OTHER COVENANTS
Section 5.1 Seller's Negative Covenants. Seller, SFSI, Trust and Schear
covenant and agree that, after the date hereof and until the earlier to occur of
(a) the termination of this Agreement, or (b) the Closing Date, they will not,
and will use their best efforts to cause their respective directors, officers
and trustees and the Key Persons to not solicit, enter into, or entertain any
discussions or negotiations with respect to a Competing Transaction (as defined
below), enter into any binding agreement with respect to any Competing
Transaction, consummate any Competing Transaction, or agree in writing or
otherwise to do any of the foregoing.
Seller shall, within 24 hours of obtaining Knowledge of same, furnish
Purchaser with copies, or if not in writing a written summary, of any inquiries
or proposals with respect to a Competing Transaction. For purposes of Section
5.1(b), "Competing Transaction" means any proposal or offer from any person
(other than Purchaser) relating to any purchase or other acquisition of all or
any material portion of the assets of, or any possible disposition or issuance
of any equity interests in, Seller (or any rights or securities exercisable for
or convertible into such equity interests), or any merger or other business
combination with Seller.
Section 5.2 Conduct of Business. After the date hereof and until the
earlier to occur of (a) the termination of this Agreement, or (b) the Closing
Date, Seller shall, unless Seller receives Purchaser's prior written consent
(which consent, except as expressly provided below, shall not be unreasonably
withheld or delayed):
(a) Use commercially reasonable and diligent efforts to
continue to conduct its business in the ordinary course, consistent
with Seller's past practices and in accordance with the Business Plan;
(b) Make no material change to the Business Plan without the
prior written consent of Purchaser, which consent may be granted or
withheld in Purchaser's sole and absolute discretion. Without limiting
the foregoing, Purchaser acknowledges that the Business Plan is only a
projection and that neither Seller, SFSI nor Schear represent or
guarantee that the results projected in the Business Plan will be
realized;
(c) Not declare, pay or make any dividends or distributions on
its capital stock other than the dividends and distributions described
on Schedule 5.2;
(d) Not enter into any agreement (oral or written) with its
directors, officers or salaried employees except as may be necessary to
help consummate the transaction contemplated hereunder; provided,
however, that Seller shall obtain Purchaser's prior written consent
prior to entering into any such agreement, which consent shall not be
unreasonably withheld or delayed; and provided further, however, that
Purchaser's written consent shall not be required for any such
agreement that is made in the ordinary course of Seller's business
consistent with past practices and that is consistent with the Business
Plan;
38
(e) Not increase the compensation of its directors, officers
or employees;
(f) Not make capital expenditures (or enter into commitments
to make capital expenditures) in excess of $25,000 (either individually
or in the aggregate) unless the same are contemplated in the Business
Plan or unless the same arise in the ordinary course of Seller's
business and are generally covered by the Business Plan; or
(g) Not issue any capital stock or grant options to purchase
its capital stock.
After the Closing, Purchaser shall operate the Business in a manner
that is in substantial accordance with the Business Plan at least until the last
of the Supplemental Payments to be made under Section 1.4 shall have been made,
unless Purchaser and Seller agree in writing to a material deviation from the
Business Plan; provided, however, that Purchaser, in its reasonable discretion,
may modify the portion of the Business Plan covering operations of the Business
in 2004 to take into account capital constraints affecting Purchaser's business.
Section 5.3 Access. From and after the date of this Agreement and until
the Closing Date (or the termination of this Agreement), Seller, SFSI, Trust and
Schear shall afford to Purchaser and to Purchaser's representatives reasonable
access, upon reasonable notice during normal business hours, to all of Seller's
properties, books, contracts, commitments, personnel and records related to the
Assets and shall furnish promptly to Purchaser all information concerning
Seller's business, properties and personnel as may reasonably be requested. All
such information as may be furnished by or on behalf of Seller to Purchaser or
Purchaser's representatives pursuant to this Section 5.3 shall be and remain
confidential. Purchaser will conduct any and all investigations and inspections
of the Assets in a professional and reasonable manner during the regular
business hours of Seller and such investigations and inspections by Purchaser
will be subject to Seller's reasonable direction designed to prevent any
material disruption to the Business prior to the Closing Date. Notwithstanding
anything in this Section 5.3 to the contrary, Purchaser shall not have access to
Seller's employees' medical records, which in the Seller's good faith judgment
could subject the Seller to risk of liability.
Section 5.4 Notification of Certain Matters. Each of Seller and
Purchaser shall promptly advise the other party orally and in writing of (a) any
representation or warranty made by it contained in this Agreement that is
qualified as to materiality being or becoming untrue or inaccurate in any
respect or any such representation or warranty that is not so qualified being or
becoming untrue or inaccurate in any material respect, or (b) the failure by it
to comply with or satisfy in any material respect any covenant, condition or
agreement to be complied with or satisfied by it under this Agreement. Should
any fact or condition require any change to the Schedules after the date hereof,
Seller shall promptly deliver to Purchaser a written supplement to the Schedules
specifying such change. The parties contemplate that between the date hereof and
the Closing Date a party may need to modify certain Schedules attached to this
Agreement, and the parties agree that notwithstanding any other provision of
this Agreement, any such modification to the Schedules by any party shall not
constitute a breach by such party under this Agreement. In this regard, the
parties agree to execute at the Closing, a Supplemental Disclosure
39
Agreement ("Supplemental Disclosure Agreement") in form and substance reasonably
satisfactory to Seller and Purchaser that sets forth the final agreed upon
version of each of the Schedules to this Agreement, as such Schedules may change
between the date hereof and the Closing Date in any manner permitted under this
Agreement, provided, however, that the parties agree to act diligently,
reasonably and in good faith to agree on the terms of the Supplemental
Disclosure Agreement; and provided further, however, that the form and substance
of Schedules 1.0(b), 1.0(c), 1.3, 2.6(a) and 2.30 attached hereto are hereby
deemed to be final and Seller shall have no right to request or require any
changes to the form and substance of Schedules 1.0(b), 1.0(c), 1.3, 2.6(a) or
2.30 attached hereto unless Purchaser, in Purchaser's sole and absolute
discretion, agrees to consider, or consents to, such change or unless Purchaser
requests any such change and Purchaser and Seller subsequently agree upon such
change in the manner described above; and provided further, however, that the
form and substance of Schedule 1.0(b) attached hereto may be changed to add
additional Assets to such Schedule that Seller actually acquires between the
date hereof and the Closing Date and subtract any Assets that Seller disposes of
between the date hereof and the Closing Date (however, unless Purchaser consents
to the same in writing, any addition or subtraction of Assets from the Business
must be done in the ordinary course of Seller's business (except for
subtractions of Assets due to Force Majeure [as defined below]), must be
consistent with Seller's past practices and the Business Plan (except for
subtractions of Assets due to Force Majeure) and may not have a Material Adverse
Effect). As used herein, the term "Force Majeure" means the occurrence of an act
of God or any event that is beyond the reasonable control of a party hereto so
long as such party acted diligently, reasonably and in good faith to prevent or
cure such event.
Section 5.5 Further Instruments of Transfer. Following the Closing, at
the request of either party hereto, the other party hereto shall deliver any
further instruments of transfer and take all reasonable action as may be
necessary or appropriate to vest in Purchaser good and marketable title to the
Assets, with any such instrument or action to be reasonably satisfactory to both
parties hereto.
Section 5.6 Transaction Taxes. Each party shall pay in a timely manner
all of their respective taxes resulting from or payable in connection with the
sale of the Assets pursuant to this Agreement; provided, however, Purchaser
shall pay all sales, use and transfer taxes relating to the transfer of title of
any vehicles that aren't subject to third party leases and that are included in
the Assets.
Section 5.7 Name Change. Immediately following the Closing, Seller
shall amend its articles of incorporation and take all other actions necessary
to change its name from "Cashland, Inc." to another name not similar in any
fashion or manner to such name and Seller will coordinate such change so that
simultaneously Purchaser may obtain the rights to such name in whatever form or
fashion Purchaser deems advisable. The provisions of this Section shall apply to
the corporate entity name of Seller as well as to all assumed name and other
similar filings and reservations referencing the name "Cashland," "Cashland Loan
and Cash Services," "Cashland, Inc." or any variation thereof.
Section 5.8 Material Change. Between the date hereof and the Closing
Date, Seller shall inform Purchaser in writing within a commercially reasonable
period of time following the
40
occurrence of any material adverse change in the condition (financial or
otherwise) of the Business or any of the Assets.
Section 5.9 Mortgages, Liens and Guaranties. Except as described in
Schedule 5.9, from and after the date hereof until the Closing Date, Seller
shall not, without the prior written approval of Purchaser, enter into or assume
any mortgage, pledge, conditional sale or other title retention agreement,
permit any security interest, lien, encumbrance or claim of any kind to attach
to any of the Assets, whether now owned or hereafter acquired, or guarantee or
otherwise become contingently liable for any obligation of another, or make any
capital contribution or investment in any corporation, business or other person.
Notwithstanding the foregoing, the provisions of this Section 5.9 shall not
apply to any matter that would be covered under this Section if such matter
became effective prior to the date hereof and if such matter was disclosed to
Purchaser on or prior to the date hereof. Additionally, the terms of this
Agreement shall not restrict Seller's right, after the date hereof, to open,
close, terminate, create or administer Consumer Loans, Documents and Files in
the ordinary course of Seller's business or open additional locations, so long
as the same is done in accordance with the Business Plan.
Section 5.10 Seller's Principals. Each of SFSI, the Trust and Schear
(collectively, the "Principals") has read the terms and conditions of this
Agreement and has (or will, prior to Closing) read the Transaction Documents and
acknowledges that (1) the execution of this Agreement and the Transaction
Documents and the undertakings of the Principals in this Agreement and the
Transaction Documents are (or will be) in partial consideration for, and a
condition to the consummation by, Purchaser of the transactions contemplated by
this Agreement and the Transaction Documents, and (2) Purchaser would not have
executed (or will not execute) this Agreement or any Transaction Documents
executed (or to be executed) pursuant to this Agreement without the execution of
this Agreement and such undertakings by each of the Principals. Between the date
hereof and the end of the 4th year following the Closing Date, Seller, SFSI and
Schear agree that they will not dissolve, reorganize or make any material
changes to the organizational structure or formation agreements and documents
of, SFSI or Seller; provided, however, that Seller and SFSI may undertake such a
transaction if Purchaser receives an express written assumption of Seller's
and/or SFSI's then surviving rights and obligations under this Agreement and any
Transaction Document, with such assumption being signed by, and binding on, the
party or parties other than Schear succeeding to the interest of Seller or SFSI
and/or the party or parties other than Schear receiving anything more than a de
minimis portion of the proceeds of the transactions contemplated by this
Agreement. This Section 5.10 shall not apply to the purchase by Seller or SFSI
of the outstanding stock purchase warrants issued by Seller.
Section 5.11 Direction of Energies Prior to Closing. Unless or until
this Agreement is terminated under Section 4.6, each party hereto shall use
commercially reasonable and diligent efforts to (a) cause the conditions in
Section 4.2 and Section 4.3 to be satisfied, and (b) take, or cause to be taken,
all actions, and to do, or cause to be done, all things reasonably necessary,
proper or advisable to consummate and make effective the transactions
contemplated hereby, including, without limitation, obtaining all
authorizations, consents, waivers and approvals as may be required in accordance
with this Agreement. In furtherance and not in limitation of the foregoing, each
party hereto agrees to make an appropriate filing of a Notification and Report
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Form pursuant to the HSR Act and any other regulatory law with respect to the
transactions contemplated hereby as promptly as practicable after the date
hereof and to supply as promptly as practicable any additional information and
documentary material that may be requested pursuant to the HSR Act and any other
regulatory law and to take all other actions necessary to cause the expiration
or termination of the applicable waiting periods under the HSR Act as soon as
practicable. Except as may be necessary to fulfill the requirements set forth in
the immediately preceding sentence, neither party will be obligated to pay money
or incur obligations in order to obtain any authorizations, consents, waivers or
approvals as may be required in accordance with this Agreement. Notwithstanding
the foregoing or any other provision of this Agreement, Purchaser may, beginning
on the 5th day following the execution date of this Agreement and subject to
Seller's reasonable directions as to timing and other matters, contact Seller's
suppliers, lenders, lessor and contractors regarding the transactions
contemplated hereby; provided, however, that Seller will use its best efforts to
provide Purchaser with such directions promptly prior to the end of such 5th
business day.
Section 5.12 Customer and Other Business Relationships. After Closing,
Seller will cooperate with Purchaser in its efforts to continue and maintain for
the benefit of Purchaser those business relationships of Seller existing prior
to the Closing and relating to the business to be operated by Purchaser after
the Closing, including relationships with lessors, employees, regulatory
authorities, licensors, customers, suppliers, and others; provided, however,
Seller's obligations under this sentence shall survive the Closing only until
the end of the 6th month following the Closing; and provided further, however,
that Seller will not be obligated to incur any expense in performing its
obligations under this sentence. In addition to the foregoing, Seller will
satisfy any retained Liabilities (that are not Assumed Liabilities) in a manner
that is not detrimental to any of the above-described relationships. Seller will
refer to Purchaser all inquiries relating to said business. Neither Seller nor
any of its officers, employees, agents, or shareholders, shall take any action
which would tend to diminish the value of the Assets after Closing or which
would interfere with the business of Purchaser to be engaged in after the
Closing Date, including, without limitation, disparaging the name or business of
Purchaser.
Section 5.13 Retention of and Access to Records. After the Closing
Date, Purchaser shall retain for a period consistent with Purchaser's record
retention policies and practices in effect as of the date hereof, those records
of Seller delivered to Purchaser. After the Closing, Purchaser shall provide
Seller and its representatives reasonable access thereto, during normal business
hours and on at least three days' prior written notice, to enable Seller to
prepare financial statements or tax returns or deal with tax audits; provided,
however, Purchaser's obligations under this sentence shall survive the Closing
only until the end of the 18th month following the Closing; and provided
further, however, that Purchaser will not be obligated to incur any expense in
performing its obligations under this sentence. After the Closing Date, Seller
shall retain for a period consistent with Seller's record retention policies and
practices in effect as of the date hereof, those records of Seller in Seller's
possession as of the date hereof that are or were applicable to the Business.
After the Closing, Seller shall provide Purchaser and its representatives
reasonable access to records regarding any Excluded Assets and to records
regarding any retained Liabilities (that are not Assumed Liabilities), during
normal business hours and on at least three days' prior written notice, in
connection with claims asserted by third parties against Purchaser specifically
as to any such Excluded Assets or retained Liabilities;
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provided, however, Seller's obligations under this sentence shall survive the
Closing only until the end of the 18th month following the Closing; and provided
further, however, that Seller will not be obligated to incur any expense in
performing its obligations under this sentence.
Section 5.14 Assistance in Proceeding. Seller, SFSI, Trust and Schear
will cooperate with Purchaser in the contest or defense of, and make available,
at Purchaser's sole expense, its personnel and provide any testimony and access
to its books and records in connection with, any proceeding involving or
relating to (a) any transaction contemplated by this Agreement, or (b) any
action, activity, circumstance, condition, conduct, event, fact, failure to act,
incident, occurrence, plan, practice, situation, status, or transaction
involving Seller, the Assets or the Business; provided, however, that except as
otherwise described in Article VI of this Agreement, the obligations of Seller,
SFSI, Trust and Schear under this sentence that accrue after the Closing Date
shall survive the Closing only until the end of the 24th month following the
Closing; and provided further, however, that except as otherwise described in
this Agreement (including, without limitation, Article VI of this Agreement),
Seller will not be obligated to incur any expense in performing its obligations
under this sentence.
Section 5.15 Listing of Shares. Purchaser shall use its best efforts to
cause the Shares to be issued hereunder to be approved for listing on the NYSE,
subject to official notice of issuance, on or prior to the Closing Date.
Section 5.16 Survival. The terms of this Article V shall survive any
termination of this Agreement and shall survive the Closing in the manner
described herein, as applicable.
ARTICLE VI
REMEDIES
Section 6.1 Survival of Representations, Warranties and Covenants. The
representations and warranties of the parties contained in this Agreement, the
Schedules (including any supplements thereto made by Seller), the Transaction
Documents and any other certificate or document delivered pursuant to this
Agreement shall survive the Closing until the second anniversary of the Closing
Date (except the representations and warranties of Seller, SFSI and Schear set
forth in Section 2.15 shall survive until the fifth anniversary of the Closing
Date). The covenants, except those covenants contained in Sections 5.1, 5.2,
5.3, 5.4, 5.8, 5.9 and 5.11, agreements and indemnities contained herein shall
survive the Closing without limitation as to time unless the covenant, agreement
or indemnitee specifies a time limitation, in which case such covenant,
agreement or indemnitee shall survive until the expiration of such specified
term.
Section 6.2 Indemnification by Seller, SFSI and Schear. After the
Closing, Seller, SFSI and Schear, jointly and severally, shall defend, indemnify
and hold harmless Purchaser and Purchaser's affiliates and their respective
subsidiaries, shareholders, affiliates, officers, directors, employees, agents,
successors and assigns (Purchaser and such persons and entities, collectively,
"Purchaser's Indemnified Persons"), and shall reimburse Purchaser's Indemnified
Persons, for, from and against each and every demand, claim, loss, liability,
judgment, damage, lien, fine, penalty, action, cost and expense (including,
without limitation, reasonable fees, disbursements and expenses of attorneys,
accountants and other professional advisors) (collectively, the
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"Losses") imposed on or incurred by Purchaser's Indemnified Persons, directly or
indirectly, relating to, resulting from, or arising out of (i) a breach of, or a
misrepresentation contained in, any representation or warranty made by Seller,
SFSI, Trust or Schear in this Agreement, (ii) a breach of, or a
misrepresentation contained in, any express representation or warranty, if any,
made by Seller, SFSI, Trust or Schear in any Transaction Document (other than
this Agreement), (iii) except for obligations maturing or accruing after the
Closing Date under the Assumed Liabilities, any Liabilities, obligations or
duties of Seller, SFSI, Trust or Schear, whether accrued, absolute, contingent
or otherwise, arising out of, or in any way connected with, Seller's, SFSI's,
Trust's or Schear's activities and/or the operation of the Assets or the
Business prior to the Closing (or, if the same are not Assumed Liabilities,
arising out of, or in any way connected with Seller's SFSI's, Trust's or
Schear's activities from and after the Closing), (iv) except for obligations
maturing or accruing after the Closing Date under the Assumed Liabilities, the
ownership, use, possession or operation of the Assets or the Business at any
time prior to the Closing Date, (v) any breach or nonfulfillment of any
covenant, agreement or other obligation of Seller, SFSI, Trust or Schear under
this Agreement, any Transaction Document or any certificate or other document
delivered or to be delivered pursuant hereto or thereto, or (vi) any tax filing
or return or payment made, or position taken by Seller, which any authority
challenges and which results in assertion of Losses against Purchaser.
Notwithstanding the foregoing, Purchaser shall not be entitled to assert any
claim for indemnification under this Section 6.2 unless and until such time as
all Losses exceed $500,000 ("Purchaser's Basket") in the aggregate, at which
time any and all claims of Purchaser for indemnification of Losses in excess of
Purchaser's Basket may be asserted; provided, however, that Purchaser's Basket
shall not be applicable to any Losses attributable to (a) non-compliance by
Seller with the bulk transfer provisions of the Uniform Commercial Code (or any
similar law) in connection with the sale and transfer of the Assets to
Purchaser, (b) the failure of Seller to deliver any of the Assets to Purchaser
or to pay or otherwise satisfy any payment obligations of the Assets which are
presently existing and are not expressly assumed by Purchaser, (c) breaches of
the representations and warranties contained in Sections 2.5, 2.12, 2.14, 2.15,
2.16, 2.22, 2.27 and 2.39, or (d) any breach of Seller's, SFSI's Schear's and
Trust's representations or warranties in this Agreement or any Transaction
Document, if any, of which such parties had Knowledge of the breach at any time
on or prior to the date on which such representation or warranty was made, or
(e) any breach by Seller, SFSI, Schear or Trust of any covenant or obligation
set forth in this Agreement or any Transaction Document if such breach is
attributable to the fraud, bad faith or willful misconduct of any of Seller,
SFSI, Schear or Trust.
Section 6.3 Indemnification by Purchaser. Except as otherwise expressly
provided in this Article VI, Purchaser shall defend, indemnify and hold harmless
Seller, SFSI, Trust, Schear, each of their affiliates and all of their
respective subsidiaries, shareholders, affiliates, officers, directors,
employees, agents, successors and assigns (Seller and such persons and entities,
collectively, "Seller's Indemnified Persons"), and shall reimburse Seller's
Indemnified Persons, for, from and against all Losses imposed on or incurred by
Seller's Indemnified Persons, directly or indirectly, relating to, resulting
from or arising out of (i) a breach of, or a misrepresentation contained in, any
representation or warranty made by Purchaser in this Agreement, (ii) a breach
of, or a misrepresentation contained in, any express representation or warranty,
if any, made by Purchaser in any Transaction Document (other than this
Agreement), (iii) any breach or nonfulfillment of any covenant, agreement or
other obligation of Purchaser under this
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Agreement, any Transaction Document or any certificate or other document
delivered or to be delivered pursuant hereto or thereto, (iv) obligations
maturing or accruing after the Closing Date under the Assumed Liabilities, or
(v) the ownership, use, possession or operation of the Assets from and after the
Closing Date. Notwithstanding the foregoing, neither Seller, SFSI, Trust nor
Schear shall be entitled to assert any claim for indemnification under this
Section 6.3 unless and until such time as all claims of such parties for
indemnification hereunder exceed $25,000 ("Seller's Basket") in the aggregate,
at which time any and all claims of Seller, SFSI, Trust and/or Schear for
indemnification in excess of Seller's Basket may be asserted; provided, however,
that Seller's Basket shall not be applicable to any Losses attributable to (a)
any breach of Purchaser's representations or warranties of which Purchaser had
Knowledge of the breach at any time on or prior to the date on which such
representation or warranty was made, (b) any breach by Purchaser of any covenant
or obligation set forth in this Agreement or any Transaction Document if such
breach is attributable to Purchaser's fraud, bad faith or willful misconduct, or
(c) Purchaser's failure to perform any obligation under the Assumed Liabilities
if such obligation arises on or after the Closing Date.
Section 6.4 Indemnification Procedures. If any action, claim or
proceeding shall be brought or asserted by one or more third parties against a
party hereto or any successor or indemnified person related thereto (the
"Indemnified Person") in respect of which indemnity may be sought under this
Article VI from an indemnifying person or any successor thereto (the
"Indemnifying Person"), the Indemnified Person shall give prompt written notice
of such action, claim or proceeding, together with a copy of such claim, process
or other legal pleading, to the Indemnifying Person, who shall assume the
defense thereof, including the employment of counsel approved by the Indemnified
Person (which approval shall not be unreasonably withheld or delayed) and the
payment of all expenses; except that any delay or failure to so notify the
Indemnifying Person shall relieve the Indemnifying Person of its obligations
hereunder only to the extent, if at all, that it is prejudiced by reason of such
delay or failure. The Indemnified Person shall have the right to employ separate
counsel in any of the foregoing actions, claims or proceedings and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of the Indemnified Person unless both the Indemnified
Person and the Indemnifying Person are named as parties and the Indemnified
Person shall in good faith determine that representation by the same counsel is
inappropriate. In the event that the Indemnifying Person, within twenty days
after notice of any such action, claim or proceeding (or, if earlier, by the
10th day preceding the day on which an answer or other pleading must be served
in order to prevent judgment by default in favor of the person asserting such
action, claim or proceeding), fails to assume the defense thereof, the
Indemnified Person shall have the right (upon further notice to the Indemnifying
Person) to undertake the defense, compromise or settlement of such action, claim
or proceeding for the account and at the risk of the Indemnifying Person and at
the Indemnifying Person's expense, subject to the right of the Indemnifying
Person to assume the defense of such action, claim or proceeding with counsel
reasonably satisfactory to the Indemnified Person at any time prior to the
settlement, compromise or final determination thereof. Anything in this Article
VI to the contrary notwithstanding, the Indemnifying Person shall not, without
the Indemnified Person's prior written consent, settle or compromise any action,
claim or proceeding, or consent to the entry of any judgment with respect to any
action, claim or proceeding for anything other than money damages paid by the
Indemnifying Person, and then only if the claimant provides to the Indemnified
Person a release from all liability in
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respect of such action, claim or proceeding. The Indemnifying Person may,
without the Indemnified Person's prior written consent, settle or compromise any
such action, claim or proceeding or consent to entry of any judgment with
respect to any such action, claim or proceeding that requires solely the payment
of money damages by the Indemnifying Person, and that includes as an
unconditional term thereof the release by the claimant or the plaintiff of the
Indemnified Person from all liability in respect of such action, claim or
proceeding. The Indemnified Party and the Indemnifying Party will cooperate with
all reasonable requests of the other. As a condition to asserting any rights
under this Article VI, each Purchaser's Indemnified Person must appoint
Purchaser, and each Seller's Indemnified Person must appoint Lee Schear, as its
sole agent for all matters relating to any claim hereunder.
Section 6.5 Waiver. The right to indemnification, reimbursement, or
other remedy based on the breach of any representations, warranties, covenants
or obligations set forth herein or in the Transaction Documents by the
non-breaching party shall not be affected by any investigation conducted by the
non-breaching party with respect to, or any Knowledge acquired (or capable of
being acquired) by the non-breaching party about, the accuracy or inaccuracy of,
or compliance with, any such representation, warranty, covenant or obligation.
No waiver by any party of any default or breach by another party of any
representation, warranty, covenant or condition contained in this Agreement, any
schedules or exhibits attached hereto or any document, instrument or certificate
contemplated hereby shall be deemed to be a waiver of any subsequent default or
breach by such party of the same or any other representation, warranty, covenant
or condition. No act, delay, omission or course of dealing on the part of any
party in exercising any right, power or remedy under this Agreement or at law or
in equity shall operate as a waiver thereof or otherwise prejudice any of such
party's rights, powers and remedies, except as expressly provided herein to the
contrary. All remedies, whether at law or in equity, shall be cumulative and the
election of any one or more shall not constitute a waiver of the right to pursue
other available remedies.
Section 6.6 Remedies. Except as expressly set forth elsewhere in this
Agreement to the contrary (including, without limitation, the provisions of
Sections 4.7 and 6.8), the remedies provided in this Article VI shall be the
sole and exclusive remedies available to a party hereto for the breach of any
representation, warranty, covenant or obligation hereunder by another party
hereto; provided, however, that, notwithstanding the foregoing: (i) any party
may seek injunctive or similar equitable relief for any breach of this Agreement
by another party, and (ii) any party may seek any damages, rights and remedies
available to such party hereunder or at law or in equity for (x) any breach by a
party hereto of any covenant or obligation of such breaching party set forth in
this Agreement or any Transaction Document if such breach is attributable to the
breaching party's fraud, bad faith or willful misconduct, or (y) any violation
of tax or securities related laws by a party hereto.
Section 6.7 Costs, Expenses and Legal Fees. Whether or not the
transactions contemplated hereby are consummated, each party hereto shall bear
its own costs and expenses (including attorneys' fees), except and as otherwise
specifically provided. Notwithstanding the foregoing, in the event of any
litigation or any arbitration proceeding between the parties arising out of, or
relating to, this Agreement or the Transaction Documents, the prevailing party
shall be entitled to recover from the other party reasonable out-of-pocket costs
and expenses, including
46
reasonable attorneys' fees and disbursements, incurred in connection therewith,
unless the court or arbitrators shall for good cause determine otherwise;
provided, however, the reimbursement of any such costs, expenses, fees and
disbursements by one party to the other under this sentence shall be in addition
to any other relief that may be awarded.
Section 6.8 Limitation of Liability. Notwithstanding anything herein to
the contrary, if the Closing occurs, it is agreed and acknowledged that the
liability of Seller, SFSI, Schear and the Trust shall be limited to a combined
aggregate amount equal to $10,000,000. Furthermore, in determining the amount of
any Loss, such Loss amount will be limited to the actual amount of such Loss,
without reference to any effect of such Loss on the EBITDA of the Seller or the
Purchaser with respect to the Business; provided, however, if GAAP requires, or
would have required, such Loss to be factored into the EBITDA used to calculate
any Supplemental Payment, then the applicable Supplemental Payment will be
equitably adjusted by the parties hereto with each party hereto acting
diligently, in good faith and in a commercially reasonable manner. If Purchaser
and Seller, despite using good faith, diligent and commercially reasonable
efforts to mutually cooperate in calculating and determining the amount of any
particular adjustment to a Supplemental Payment pursuant to this Section, cannot
agree in writing as to the amount of such an adjustment within 30 days after the
date a party hereto sends written notice of the possible need for such an
adjustment to the other party hereto, then such adjustment, if any, shall be
determined using the same process as is to be used by the parties to determine
the amount of a Supplemental Payment pursuant to Section 1.4(f) above. If an
adjustment to a Supplemental Payment is made pursuant to this Section, the
parties will effectuate such adjustment through the payment of cash within 7
business days following the final determination of such adjustment, so that the
party owing money pursuant to this Section shall pay cash in the amount of the
adjustment to the party owed money pursuant to this Section and the Note will
not be affected by such adjustment; provided, however, that in making any such
adjustment the interest payable under the Note will, if appropriate, be a factor
in determining the total amount of such adjustment. Notwithstanding anything
herein to the contrary, no adjustment will be made to any Supplemental Payment
pursuant to this Section unless a party hereto sends written notice to another
party hereto specifying that such an adjustment may be needed and such other
party receives such written notice before the end of the 24th month following
the Closing Date.
Section 6.9 Survival. The terms of this Article VI shall survive any
termination of this Agreement and shall survive the Closing, as applicable.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Confidentiality. For purposes of this Agreement,
"Confidential Information" shall mean any and all information, knowledge and
intelligence of any type whatsoever, whether in writing, oral or electronic,
relating in any manner to the party possessing, owning and disclosing such
information ("Disclosing Party"), including, but not limited to, all of the
Disclosing Party's financial information and all due diligence materials
delivered by the Disclosing Party to the other party ("Receiving Party"),
including all trade secrets, marketing strategies, business strategies,
financial information, procedures, research, lists, methodologies, contracts,
business records, and know-how; provided, however, any information that is
either (i)
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generally known by, or available to, the public through no fault of the
Receiving Party, (ii) was available to the Receiving Party from a source other
than the Disclosing Party who was authorized to disclose such information
without a confidentiality obligation, whether by contract, fiduciary duty or
otherwise, to the Disclosing Party, or (iii) is otherwise independently known
to, or developed by, the Receiving Party, shall not be considered Confidential
Information. The fact that this Agreement exists shall also be deemed
Confidential Information. In order to enable the parties hereto to perform their
pre-Closing due diligence, a Disclosing Party hereto may disclose certain of its
own Confidential Information to a Receiving Party. The Receiving Party
recognizes and acknowledges that the Disclosing Party's Confidential Information
is the exclusive property of the Disclosing Party, is material, is confidential
and greatly affects the goodwill and the personal and business success of the
Disclosing Party. Accordingly, as a material inducement for each party to enter
into this Agreement, each party hereto hereby covenants and agrees that, except
as expressly provided herein, it will not now, or at any time in the future,
directly or indirectly, divulge, reveal or communicate, either orally or in
writing, to any other person or to the public, any of the other party's
Confidential Information or use any of the other party's Confidential
Information for their benefit or for the benefit of others except: (i) with the
prior written consent of the Disclosing Party (which consent may be withheld in
such Disclosing Party's sole discretion); or (ii) as required by law, rule or
regulation. Notwithstanding the foregoing, the Receiving Party may disclose the
Disclosing Party's Confidential Information to the employees, officers,
directors, shareholders, accountants, attorneys, consultants and advisors of
such Receiving Party, but only to the extent such people require such
Confidential Information in order for the Receiving Party to effectively pursue
the consummation of the transaction contemplated by this Agreement; provided,
however, the Receiving Party shall require any of its employees, officers,
directors, shareholders, accountants, attorneys, consultants or advisors who
receive the Disclosing Party's Confidential Information to comply with the
confidentiality provisions of this Agreement and the Receiving Party shall be
liable for any breach of the terms of the confidentiality provisions of this
Agreement by its own employees, officers, directors, shareholders, accountants,
attorneys, consultants or advisors as if the Receiving Party had breached this
Agreement itself.
Section 7.2 Return of Confidential Information; Public Releases. If
this Agreement is terminated for any reason, each Receiving Party will return to
the Disclosing Party all of the Disclosing Party's Confidential Information
without keeping copies of such Confidential Information and shall not use any of
the Disclosing Party's Confidential Information for its benefit or for the
benefit of others. Additionally, at all times after the date hereof until the
Closing, Seller and Purchaser shall not make any public release of information
regarding the matters contemplated herein except (i) that Purchaser and Seller
may each continue such communications with employees, officers, directors,
shareholders, accountants, attorneys, consultants, advisors, suppliers, lenders,
lessors and other particular individuals or groups as may be legally required or
necessary or appropriate and not inconsistent with the best interests of the
other party or the prompt consummation of the transactions contemplated by this
Agreement, and (ii) as required by law; provided, however, that Purchaser may
make public releases regarding this Agreement and the transactions contemplated
hereby to the extent Purchaser reasonably believes the same to be prudent in
connection with its disclosure obligations or its past practices; and provided
further, however, Purchaser will not make any such public release unless it has
first given Seller a reasonable opportunity to review and comment on such
release.
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Section 7.3 Breach of Confidentiality Provisions. In view of the
irreparable harm and damage which would occur to the Disclosing Party as a
result of a breach or a threatened breach by the Receiving Party under Sections
7.1 or 7.2 hereof, and in view of the lack of an adequate remedy at law to
protect the Disclosing Party in connection with such a breach, the Disclosing
Party shall have the right to receive, and the Receiving Party hereby consents
to the issuance of, temporary and permanent injunctions enjoining the Receiving
Party from any violation of Sections 7.1 and 7.2 of this Agreement. The
Receiving Party acknowledges that both temporary and permanent injunctions are
appropriate remedies for such a breach or threatened breach. The foregoing
remedies shall be in addition to, and not in limitation of, any other rights or
remedies to which the Disclosing Party is or may be entitled at law or in
equity, including, without limitation, the right to specific performance and the
right to receive damages. The Receiving Party's obligation to protect the
Disclosing Party's Confidential Information in accordance with this Agreement
shall terminate five (5) years from the date of this Agreement.
Section 7.4 Amendment. This Agreement may be amended, modified or
supplemented only by an instrument in writing executed by all of the parties
hereto.
Section 7.5 Assignment. Neither this Agreement nor any right created
hereby or in any agreement entered into in connection with the transactions
contemplated hereby shall be assignable by any party hereto; provided, however,
Purchaser may assign all of its rights under this Agreement to an affiliate of
Purchaser ("Permitted Assignee"); provided further, however, that Purchaser
shall remain jointly and severally liable with such Permitted Assignee for all
of the obligations and liabilities of the "Purchaser" hereunder. Additionally,
in the event of such an assignment by Purchaser to a Permitted Assignee, (a)
Purchaser and the Permitted Assignee shall each make the representations and
warranties set forth in Article III hereof, as the same may need reasonable
modification to properly reflect the entity type and state of formation of the
Permitted Assignee, (b) Purchaser shall, in addition to remaining primarily,
jointly and severally liable for all of the obligations of the "Purchaser"
hereunder, be responsible for directly performing any of the obligations of the
"Purchaser" hereunder that would be impossible or impractical for the Permitted
Assignee to perform, including, without limitation, the issuance of the Shares
and/or the execution of the Stock Option and Non-Competition Agreements, and (c)
if the Note is required, Purchaser will co-sign the Note on behalf of the
Permitted Assignee.
Section 7.6 Parties In Interest; No Third Party Beneficiaries. Except
as otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and assigns of the parties hereto. Neither this
Agreement nor any other agreement contemplated hereby shall be deemed to confer
upon any person not a party hereto or thereto any rights or remedies hereunder
or thereunder.
Section 7.7 Entire Agreement. This Agreement, the attached Exhibits and
Schedules, and the Transaction Documents constitute the entire agreement of the
parties regarding the subject matter hereof, and supersede all prior agreements
and understandings, both written and oral, among the parties, or any of them,
with respect to the subject matter hereof. If there are any conflicts between
the terms of this Agreement, the Schedules or Exhibits attached hereto or any of
the Transaction Documents, the most restrictive of the conflicting provisions
shall control.
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Section 7.8 Severability. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as part of this Agreement a
provision as similar in its terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
Section 7.9 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS (BUT NOT THE RULES GOVERNING
CONFLICTS OF LAWS) OF THE STATE OF TEXAS.
Section 7.10 Captions. The captions in this Agreement are for
convenience of reference only and shall not limit or otherwise affect any of the
terms or provisions hereof.
Section 7.11 Notice. Any notice or communication hereunder or in any
agreement entered into in connection with the transactions contemplated hereby
must be in writing and given by (a) depositing the same in the United States
mail, postage prepaid and registered or certified with return receipt requested
and addressed to the intended recipient's Notice Address (as defined below), (b)
by sending the same via a nationally recognized overnight courier for next
business day delivery to the intended recipient's Notice Address, (c) by sending
the same via an electronically confirmed telecopy transmission to the telecopy
number listed in the intended recipient's Notice Address, or (d) by delivering
the same in person to the intended recipient's Notice Address. Such notice shall
be deemed received on the earlier to occur of (a) the date of actual receipt of
the notice, (b) the date evidenced on a signed delivery receipt as the date of
delivery or the date delivery was refused, if the notice is delivered in person,
or via certified or registered mail or by an overnight courier for next business
day delivery, or (c) on the date set forth on an electronically generated fax
confirmation sheet if the notice is sent via telecopy. For purposes of notice,
the address for notices ("Notice Address") for each party hereto is as follows:
50
If to Purchaser: Cashland, Inc.
36 West Third Street
Dayton, Ohio 45402
Attention: Lee Schear
Phone: 937.228.5600
Fax: 937.285.4755
e-mail: leemail@schear.net
With a copy to:
Richard A. Broock
Chernesky, Heyman & Kress P.L.L.
10 Courthouse Plaza, S.W., Suite 1100
Dayton, Ohio 45402
Phone: 937.449.2840
Fax: 937.449.2821
e-mail: rab@chklaw.com
If to Seller: Cash America International, Inc.
1600 W. 7th Street
Fort Worth, Texas 76102
Attn: Hugh Simpson
Phone: 817.570.1625
Fax: 817.570.1647
e-mail: hsimpson@casham.com
With a copy to:
Cash America International, Inc.
1600 W. 7th Street
Fort Worth, Texas 76102
Attn: Curtis Linscott
Phone: 817.570.1687
Fax: 817.570.1647
e-mail: clinscott@casham.com
(a) Any party may change its Notice Address for notice by
written notice given to the other parties in accordance with this
Section 7.12 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument. Any signature on this
Agreement or any other Transaction Document may be a
51
facsimile signature and all parties agree that any signature delivered by
facsimile shall be treated as an original signature to any such document.
Section 7.13 Material Adverse Effect. As used in this Agreement, the
term "Material Adverse Effect" means any circumstance or event of whatever
nature (other than any change in economic, regulatory or industry conditions
generally) which (a) would reasonably be expected to have a material adverse
effect on the financial condition of the Business or Seller, (b) would
reasonably be expected to diminish or impair in any material respect, the value
of the Business or the Assets, in each case taken as a whole, or (c) would
reasonably be expected to render it impossible for Seller, SFSI, Trust or Schear
to consummate the transactions contemplated under this Agreement or under any of
the Transaction Documents.
Section 7.14 Trust. Trust makes the following representations and
warranties to Purchaser. Trust is an irrevocable trust and Douglas C. Dotson is
the sole trustee of Trust ("Trustee"). Trust is governed by a valid and existing
trust agreement with all requisite power and authority to own or hold under
lease its properties and assets, to execute and deliver this Agreement and the
other Transaction Documents and to consummate the transactions contemplated
hereby and thereby. Trust and Seller possess true and complete copies of the
trust agreement of Trust and all amendments or supplements thereto
(collectively, the "Trust Agreement") and all of such documents are in full
force and effect on the date hereof. Trust has the absolute and unrestricted
right, power and authority to execute and deliver this Agreement and the
Transaction Documents and to perform its obligations under this Agreement and
the other Transaction Documents, and such action has been duly authorized by all
necessary action by Trust's settlors, trustees and beneficiaries. This Agreement
has been, and the other Transaction Documents will be at the Closing, duly
executed and delivered by Trust and Trustee has full, right, power and authority
to bind the Trust to the terms of this Agreement and all Transaction Documents.
This Agreement constitutes, and the other Transaction Documents at the Closing
will constitute, legal, valid and binding obligations of Trust, enforceable
against Trust in accordance with their respective terms, except as may be
limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or the availability of equitable remedies. Neither
the execution, delivery or performance of this Agreement or the Transaction
Documents nor the consummation of the transactions contemplated hereby or
thereby will (a) conflict with, or result in a violation or breach of the terms,
conditions or provisions of, or constitute a default under, the Trust Agreement
or any agreement, indenture or other instrument under which Trust is bound or to
which any of the Assets are subject, or result in the creation or imposition of
any security interest, lien, charge or encumbrance upon any of the Assets; or
(b) cause any material change in the rights or obligations of any party under
any such agreement, indenture or other instrument; or (c) violate or conflict
with any judgment, decree, order, statute, rule or regulation of any court or
any public, governmental or regulatory agency or body having jurisdiction over
Trust or the Assets.
Section 7.15 Survival. The terms of this Article VII shall survive any
termination of this Agreement and shall survive the Closing, as applicable.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
52
EXECUTED on this the 30th day of June, 2003.
<Table>
<Caption>
PURCHASER: SELLER:
CASH AMERICA INTERNATIONAL, INC., CASHLAND, INC.
a Texas corporation
By: /s/ Daniel R. Feehan By: /s/ Lee Schear
--------------------------- ---------------------------
Daniel R. Feehan, President Lee Schear, President
SFSI:
SCHEAR FINANCIAL SERVICES, INC.,
an Ohio corporation
By: /s/ Lee Schear
---------------------------
Lee Schear, President
TRUST:
MAFRE A. BRUNNER IRREVOCABLE
TRUST DATED MAY 12, 1993
By: /s/ Douglas C. Dotson
---------------------------
Douglas C. Dotson, Trustee
SCHEAR:
/s/ Lee Schear
---------------------------
LEE SCHEAR
</Table>
53
LIST OF EXHIBITS AND SCHEDULES
EXHIBITS:
A. EBITDA Calculation Method F. Non-Competition Agreement
B. Form of Promissory Note G. Escrow Agreement
C. Bill of Sale
D. Global Assignment
E. Loan Assignment
SCHEDULES:
<Table>
1.0(a) List of Locations
1.0(b) List of Assets
1.0(c) List of Excluded Assets
1.3 Assumed Liabilities
1.4 Sample Calculation of Supplemental Payments
2.0 Key Persons
2.1 Seller's Affiliates, Officers and Directors
2.2 Seller's Required Corporate Consents
2.3 Conflicts with Seller's Agreements
2.4 Seller's Required Third Party Consents (government and lenders)
2.5(a) Consumer Loans, Documents and Files - Forms and Procedures
2.5(b) Exceptions to Consumer Loans, Documents and Files - Forms and
Procedures
2.5(c) Customer Receivables
2.6(a) Seller's Audited Financial Statements for the period ended
12/31/02 and Seller's Unaudited Financial Statements for the
period ended 5/31/03; and Seller's Management Letters and Related
Responses
2.6(b) Non-GAAP items in Seller's Financial Statements
2.7 Liabilities
2.8 Liens and Encumbrances
2.9 Commitments (All Material Contractual Arrangements of Seller)
2.10 Intellectual Property
2.12 Compliance with Laws; Permits and Licenses
2.13 Litigation
2.15 Taxes
2.20 Real Estate Matters
2.21 Buildings and Structures
2.22 Other Business Activities
2.24 Change in Business
2.25 Employees
2.26 Employment and Labor Matters
2.27 Employee Benefit Plans
2.30 Business Plan
2.31 Banking Relationships
2.32 Insurance
2.33 Privacy Notices
2.34 Policies and Procedures
4.3 Required Lease/Contract Assignments
</Table>
54
<Table>
5.2 Permitted Dividends and Distributions
5.6 Permitted New Encumbrances
</Table>
55
SUPPLEMENTAL DISCLOSURE AGREEMENT,
PRELIMINARY ALLOCATION AGREEMENT
AND
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS SUPPLEMENTAL DISCLOSURE AGREEMENT, PRELIMINARY ALLOCATION AGREEMENT
AND FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT ("Amendment") is executed
effective as of the date set forth below by and among Cashland, Inc., an Ohio
corporation ("Seller"), Schear Financial Services, Inc., an Ohio corporation
("SFSI"), Lee Schear, a resident of Dayton, Ohio ("Schear"), The Mafre A.
Brunner Irrevocable Trust dated May 12, 1993 ("Trust"), and Cash America
International, Inc., a Texas corporation ("Purchaser").
WITNESSETH:
WHEREAS, Seller, SFSI, Schear, Trust and Purchaser entered into an
Asset Purchase Agreement ("Agreement") dated June 30, 2003, whereby Purchaser
would acquire the Assets and Business of Seller; and
WHEREAS, the parties hereto desire to amend the Agreement, to amend and
restate the Schedules attached to the Agreement and to agree upon a preliminary
allocation of the Purchase Price among the Assets.
NOW THEREFORE, for the sum of TEN DOLLARS ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used but not defined in this
Amendment shall have the meanings given such terms in the Agreement.
2. Conflicts. If there are any conflicts or inconsistencies between the
terms of this Amendment and the terms of the Agreement, the terms of this
Amendment shall control.
3. Ratification. Except as expressly modified by this Amendment, the
terms and conditions of the Agreement are hereby ratified and shall remain in
full force and effect as written.
4. Amendments. The following provisions shall amend the Agreement.
a. 5-31-03 EBITDA Statement. The 5-31-03 EBITDA Statement described
in Section 1.4(g) of the Agreement is attached to this Amendment
as Exhibit "A" and is incorporated herein for all purposes. The
parties hereto agree and acknowledge that the 5-31-03 EBITDA
Statement attached hereto is the final 5-31-03 EBITDA Statement
for all purposes under the Agreement.
b. Representations of Seller, SFSI and Schear. The following
representations and warranties are added to Article II of the
Agreement:
i. Section 2.40. Finova/Sirrom. All indebtedness previously
owed by Seller and/or SFSI to Sirrom Capital Corporation
and/or Finova Mezzanine Capital, Inc. (collectively,
"Finova") has been paid in full and prior to the Closing
Date Seller's assets were released from all liens held by
Finova. Seller, at Seller's cost, shall file Financing
Statement Terminations in each State or County jurisdiction
in which Finova has, prior to the Closing Date, filed
Financing Statements that purport to cover any of the
Assets and such Financing Statement Terminations shall
specifically terminate each of such Financing Statements
previously filed of record by or on behalf of Finova.
Seller, at Seller's expense, shall deliver appropriately
file-stamped copies of all such Financing Statement
Terminations as soon as reasonably practical after the
Closing Date with Seller acting diligently and in good
faith, but in no event shall such file-stamped Financing
Statement Terminations be delivered to Purchaser any later
than 90 days following the Closing Date. Seller and
Purchaser shall reasonably cooperate with each other as may
be reasonably necessary to carry out the intent of this
paragraph.
ii. Section 2.41. Worker's Compensation Insurance. Seller's
Ohio Bureau of Worker's Compensation ("OBWC") coverage and
Seller's Kentucky Employer's Mutual Insurance policy shall
be cancelled by Seller promptly after the Closing. Any and
all premiums or other outstanding amounts applicable to any
of Seller's worker's compensation coverages for all periods
prior to the Closing Date owed to either the OBWC or to any
such insurance underwriter have been, or will promptly
after the Closing be, paid by Seller. Within thirty (30)
days following the Closing Date, Seller shall provide
Purchaser with reasonable written evidence indicating that
Seller has terminated such coverages. Seller shall also
provide Purchaser with reasonable evidence that Seller has
fully paid for such coverages promptly after any amounts
therefore first become due and payable.
iii. Section 2.42. Sky Bank. All indebtedness previously owed
by Seller, Cashland of Kentucky, LLC, Schear and/or SFSI to
Sky Bank has been paid in full. Seller, at Seller's
expense, shall work diligently and in good faith with Sky
Bank and the Commonwealth of Kentucky to cause Sky Bank to
terminate, and release of record, as soon as reasonably
practical after the Closing Date, but in no event later
than ninety (90) days following the Closing Date, all
Financing Statements covering any of the Assets and
previously filed of record in any State or County
jurisdiction by or on behalf of Sky Bank. Seller, at
Seller's expense, shall provide Purchaser with
appropriately file-stamped copies of all such Sky Bank
2
Financing Statement Terminations as soon as they become
available. Seller and Purchaser shall reasonably cooperate
with each other as may be reasonably necessary to carry out
the intent of this paragraph.
iv. Section 2.43. Tax Liens. The taxes, fees, penalties and
interests evidenced by the tax liens described on Schedule
2.8 shall be fully paid by Seller, and all such tax liens
shall be released of record by Seller, at Seller's expense,
as soon as reasonably practical after the Closing Date with
Seller acting diligently and in good faith, but in no event
shall such tax liens be paid in full and released of record
any later than ninety (90) days after the Closing Date.
Seller, at Seller's expense, shall provide Purchaser with
appropriately file-stamped copies of all such tax lien
releases as soon as they become available. Seller and
Purchaser shall reasonably cooperate with each other as may
be reasonably necessary to carry out the intent of this
paragraph.
v. Section 2.44. Pitney Bowes. All outstanding amounts due for
equipment leased by Seller from Pitney Bowes pursuant to
the documents referenced on Schedule 2.9 shall be paid in
full by Seller in such a manner so that Seller shall cause
title to all such equipment to vest in Purchaser free and
clear of all security or leasehold interests therein within
45 days following the Closing Date. Seller, at Seller's
expense, shall cause all Financing Statements covering any
of such equipment that are filed by or on behalf of Pitney
Bowes (or any of its agents, affiliates or designees) in
any State or County jurisdiction to be released of record
as soon as reasonably practical after the Closing Date with
Seller acting diligently and in good faith, but in any
event all such security or leasehold interests shall be
fully released of record no later than forty-five (45) days
following the Closing Date. Seller and Purchaser shall
reasonably cooperate with each other as may be reasonably
necessary to carry out the intent of this paragraph.
vi. Section 2.45. Technology Integration. Seller, at Seller's
expense, shall cause all Financing Statements covering any
of the Assets that are filed by or on behalf of Technology
Integration Financial Services, Inc. (or any of its agents,
affiliates or designees) to be released of record as soon
as reasonably practical after the Closing Date with Seller
acting diligently and in good faith, but in any event such
releases shall be fully released of record no later than
ninety (90) days following the Closing Date. Seller and
Purchaser shall reasonably cooperate with each other as may
be reasonably necessary to carry out the intent of this
paragraph.
3
c. Seller's Closing Documents. The following provisions are added to
Section 4.4 of the Agreement:
i. Section 4.4(u). Original copies of a Human Resources
Agreement ("Human Resources Agreement"), in form and
substance reasonably satisfactory to Purchaser and Seller,
signed by Seller, SFSI and Schear.
d. Section 4.4(s). The reference to "(as defined in Section 1.2(d)"
is hereby deleted in its entirety from the end of Section 4.4(s)
of the Agreement and is replaced with the reference "(as
described in Section 1.2(c))".
e. Purchaser's Closing Documents. Section 4.5(f) of the Agreement is
hereby deleted from the Agreement in its entirety and is replaced
with the following:
i. Section 4.5(f). Original copies of the Bill of Sale, Global
Assignment, Loan Assignment, Lease/Contract Assignments,
Intellectual Property Assignments, Non-Competition
Agreement, Escrow Agreement, Supplemental Disclosure
Agreement, Telephone Transfer Agreements, Closing
Statement, Human Resources Agreement, and, subject to the
terms of Section 4.16 of the Agreement, the Preliminary
Allocation Agreement, each executed by Purchaser.
f. Section 4.14. Section 4.14 of the Agreement is hereby deleted
from the Agreement in its entirety and is replaced with the
following:
i. "Section 4.14 Prepaid Amounts; Income and Expense
Prorations. At the Closing, appropriate adjustments will be
made to the Cash Purchase Price to equitably prorate (a)
all prepaid rents, real estate taxes, personal property
taxes, casualty insurance (to the extent Seller is
reimbursing a landlord therefore), and common area
maintenance charges, to the extent the same have been paid
or are payable under the Assumed Liabilities, and (b) all
other prepaid or delinquent amounts assumed by Purchaser as
a part of the Assumed Liabilities, all so that Purchaser
pays for all amounts attributable to the period of time
after the Closing Date and Seller pays for all amounts
attributable to the period of time on or prior to the
Closing Date. All security and other deposits made by
Seller in connection with any of the Assumed Liabilities
shall be deemed Assets. Except as provided in Section 4.15
of this Agreement, the parties also agree that all income
earned on or before the Closing Date shall be credited or
received by Seller, and all income earned or accrued after
the Closing Date shall be credited and received by
Purchaser; and all expenses and liabilities accrued on or
before the Closing Date shall be paid by Seller, and all
expenses and liabilities accrued after the Closing Date
shall be paid by Purchaser. To the extent any adjustment
under this Section cannot be reasonably determined at
Closing, the parties hereto
4
agree to cooperate with each other diligently and in good
faith to make any equitable adjustments as may be
appropriate or required under this Section as soon as
reasonably practicable after the Closing Date. This
Section 4.14 shall survive the Closing."
g. Section 4.15(b). Section 4.15(b) of the Agreement is hereby
deleted from the Agreement in its entirety and is replaced with
the following:
i. "4.15(b) - Payments on the following checks and ACH
collection activity shall be the sole property of Purchaser
and Purchaser shall be entitled to the proceeds thereof
(including any nsf and collection fees related thereto):
(i) except for First Deposit Checks, all checks
deposited and ACHs initiated by or on behalf
of Seller or Purchaser into the banking
system before, on or after the Closing Date
and that clear after the Closing Date, and
(ii) all First Deposit Checks deposited into the
banking system by or on behalf of Seller
prior to the Closing Date that are returned
unpaid in whole or in part at any time after
the Closing Date."
h. Section 6.2(c). The reference to "Sections 2.5, 2.12, 2.14, 2.15,
2.16, 2.22, 2.27 and 2.39," is hereby deleted in its entirety
from Section 6.2(c) of the Agreement and is replaced with the
reference "Sections 2.5, 2.12, 2.14, 2.15, 2.16, 2.22, 2.27,
2.39, 2.40, 2.41, 2.42, 2.43, 2.44 and 2.45,".
i. Seller's Ongoing Litigation. The following provision is added to
the Agreement:
i. Section 6.10 Seller's Ongoing Litigation. Seller, SFSI and
Schear agree and acknowledge that (1) Purchaser is not
assuming any of the rights, obligations or liabilities of
Seller, SFSI or Schear that relate to or arise from any of
the litigation matters described on Schedule 2.13 or,
except as expressly described in the immediately following
sentence, any litigation matters that involve Seller, SFSI
or Schear that were commenced prior to the Closing Date and
are not identified on Schedule 2.13, (2) Seller, SFSI and
Schear will remain solely responsible for all such rights,
obligations or liabilities and for pursuing all such
litigation to its final completion as Seller, SFSI and
Schear shall determine in their sole discretion, and (3)
Seller, SFSI and Schear shall be solely responsible and
liable for all damages, liabilities, obligations,
responsibilities, judgments, actions, liens, fines,
penalties, fees, costs or expenses (including all
attorneys' fees, costs of investigation, court costs and
all related costs and expenses) related to, or arising
from, any of such litigation. Notwithstanding the
foregoing, Seller, SFSI and Schear shall
5
assign to, and Purchaser shall assume, Seller's rights in
any litigation not specifically identified by case name on
Schedule 2.13 that was brought, or instituted, by Seller
as the plaintiff against its customers in Seller's ordinary
course of business in connection with collecting amounts
due from such customers to Seller (including collection
suits, garnishments against customers and customer
bankruptcy proceedings) (the "Assigned Litigation"),
except to the extent any such customers assert defenses or
counterclaims against Seller related to the actions of
Seller prior to the Closing in the Assigned Litigation, in
which event, Purchaser shall assign to, and Seller, SFSI
and Schear shall assume, Purchaser's rights in the Assigned
Litigation and Seller will remain solely responsible for
all such rights, obligations or liabilities and for
pursuing the Assigned Litigation to its final completion
in accordance with the immediately preceding sentence.
5. Preliminary Allocation Agreement. The preliminary allocation of the
Purchase Price to the Assets, as described in Section 4.4(s) of the Agreement,
is set forth on Exhibit "B" attached to this Amendment and is incorporated
herein for all purposes. The parties hereto agree that this Amendment, together
with Exhibit "B" attached hereto constitutes the Preliminary Allocation
Agreement described in the Agreement.
6. Supplemental Disclosure Agreement. The Schedules to the Agreement
are hereby deleted in their entirety from the Agreement and are replaced with
the Schedules attached to this Amendment. The parties hereto agree that this
Amendment, together with the Schedules attached hereto, constitutes the
Supplemental Disclosure Agreement described in the Agreement. It is hereby
acknowledged and agreed by the parties hereto that the Trust is not making any
representations, warranties or covenants other than as specifically set forth in
the Agreement.
7. Quitclaim by SFSI, Schear, Trust and Cashland of Kentucky, L.L.C. To
the extent SFSI, Schear, Trust or Cashland of Kentucky, LLC ("CKL") own any
rights, titles or interests, if any, in the Assets or the Business, SFSI,
Schear, Trust and CKL, for and in consideration of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, hereby RELEASE, SELL,
TRANSFER, CONVEY, GRANT, DELIVER, DEMISE AND QUITCLAIM unto Seller all of their
respective rights, titles and interests, if any, in and to the Business and the
Assets, except for any Excluded Assets.
8. Schedules 1.0(b) and 2.25. The parties hereto agree to amend and
restate Schedule 1.0(b) and Schedule 2.25 to the Agreement within thirty (30)
days following the Closing Date, with such amended and restated Schedules to be
reflected in a written agreement signed by all parties hereto. The parties
hereto agree that such Schedules shall be amended and restated so that such
Schedules represent the actual Assets and Seller's Employees, respectively, in
existence as of the Closing Date.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
6
THIS AMENDMENT IS EXECUTED to be effective as of the 31st day of July, 2003.
<Table>
<Caption>
PURCHASER: SELLER:
CASH AMERICA INTERNATIONAL, INC., CASHLAND, INC., an Ohio corporation
a Texas corporation
By: /s/ Daniel R. Feehan By: /s/ Lee Schear
--------------------------- ---------------------------
Daniel R. Feehan, President Lee Schear, President
CKL: SFSI:
Cashland of Kentucky, LLC is executing this SCHEAR FINANCIAL SERVICES, INC.,
Amendment below solely for the purposes of an Ohio corporation
agreeing to the terms and conditions of
Section 7 of this Amendment By: /s/ Lee Schear
---------------------------
CASHLAND OF KENTUCKY, LLC, Lee Schear, President
an Ohio limited liability company
TRUST:
By: /s/ Lee Schear
--------------------------- MAFRE A. BRUNNER IRREVOCABLE
Lee Schear, its managing member TRUST DATED MAY 12, 1993
By: /s/ Douglas C. Dotson
---------------------------
Douglas C. Dotson, Trustee
SCHEAR:
/s/ Lee Schear
---------------------------
LEE SCHEAR
</Table>
7