AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
Cash America International,
Inc.,
the Subsidiaries of The Check
Giant, LLC set forth on the signature pages hereto
the Members of The Check Giant,
LLC
AMENDMENT NO. 1 TO
ASSET PURCHASE AGREEMENT
This Amendment
No. 1 to Asset Purchase Agreement (the “
Amendment ”) is made as of September 15, 2006, by
and among Cash America International, Inc., a Texas corporation
(the “ Purchaser ”), The Check Giant, LLC, a
Delaware limited liability company (“ TCG ”),
each of the subsidiaries of TCG set forth on the signature pages to
this Amendment (each, a “ Subsidiary ” and,
together with TCG, the “ Sellers ”), and the
members of TCG set forth on the signature pages to this Amendment
(collectively, the “ Members ”).
The parties hereto
have entered into the Asset Purchase Agreement, dated as of
July 9, 2006 (the “ Purchase Agreement ”),
by and among the Purchaser and the Sellers and the
Members.
The parties hereto
desire to amend the Purchase Agreement to provide for the sale of
all of the membership and other equity interests of CashNetUSA CO,
LLC, The Check Giant NM, LLC and CashNetUSA OR, LLC (the “
Transferred Subsidiaries ”) and to make certain
representations and warranties in connection therewith and to amend
and restate Exhibit B — EBITDA Calculation
Method.
NOW, THEREFORE,
intending to be legally bound and in consideration of the mutual
provisions set forth in this Amendment and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
Section 1 . Definitions; Interpretation .
Capitalized terms used but not defined in this Amendment shall have
the meaning set forth in the Purchase Agreement. This Amendment
shall be construed and interpreted according to the rules of
construction and interpretation set forth in the Purchase
Agreement. All references in the Purchase Agreement to “the
Agreement” shall be deemed to be references to the Purchase
Agreement as amended hereby.
Section 2 . Amendment . The Purchase Agreement
is hereby amended as follows:
Section 2.1 . Section 2.1 of the Purchase
Agreement is hereby amended by deleting the word “and”
at the end of Section 2.1(k) and by deleting the period at the
end of Section 2.1(l) and inserting in lieu thereof a
semi-colon. Section 2.1 of the Purchase Agreement is hereby
further amended by adding the following
Section 2.1(m):
(m) all membership
and other equity interests in CashNetUSA CO, LLC, The Check Giant
NM, LLC and CashNetUSA OR, LLC (the “ Transferred
Subsidiaries ”) and all rights and obligations under the
certificate of formation and operating agreement of each such
Transferred Subsidiary, provided that all Excluded Assets and
Excluded Liabilities held by such Transferred Subsidiaries shall be
transferred to, and retained by, TCG as of the Closing without any
further action or deed.
Section 2.2 . Section 2.2(a) of the Purchase
Agreement is hereby amended and restated in its entirety to read as
follows:
(a) originals of
the corporate or company seals, certificate of incorporation,
certificate of formation, operating agreement, bylaws or other
governing documents, minute books, stock or membership interest
records, tax returns and similar company records having to do with
the organization of the Sellers other than the Transferred
Subsidiaries;
Section 2.3 . Section 2.2(b) of the Purchase
Agreement is hereby amended and restated in its entirety to read as
follows:
(b) all shares of
the capital stock or other ownership interests of any Seller other
than the Transferred Subsidiaries;
Section 2.4 . Section 2.9(a)(ii) of the Purchase
Agreement is hereby amended and restated in its entirety to read as
follows:
(ii) one or more
bills of sale in the form of Exhibit D (the “
Bills of Sale ”) executed by the Sellers and the
assignments of membership interests in the form of
Exhibit D-1 (the “ Membership Interest
Assignments ”) executed by TCG and any of the applicable
Sellers with respect to the membership interests of the Transferred
Subsidiaries.”
Section 2.5 . Section 2.9(b)(iii) of the Purchase
Agreement is hereby amended and restated in its entirety to read as
follows:
(iii) the Bill(s)
of Sale, the Membership Interest Assignments, the Assignment and
Assumption Agreement(s) and the other assignments, if any, under
Section 2.9(a)(iv) and (v) that call for a signature by the
Purchaser; and
Section 2.6 . The Purchase Agreement is hereby amended
to add an Exhibit D-1 in the form set forth on
Exhibit D-1 attached hereto.
Section 2.7 . Exhibit B of the Purchase Agreement
is hereby amended and restated in its entirety to read as set forth
on Exhibit B attached hereto.
Section 2.8 . Section 2.5(c) is hereby amended to
add the words “6:00, p.m., Central time of” after the
words “on or before” and before the words “the
Closing Date” in the first sentence thereof.
Section 2.9 . Section 2.8 is hereby amended to add
the following sentence at the end thereof: “The effective
time for the transfer of the business of the Sellers shall be 6:00
p.m., Central time, on the Closing Date.”
Section 3 . Representations and Warranties of the
Sellers . The Sellers jointly and severally represent and
warrant to the Purchaser that except as set forth in the Sellers
Supplemental Disclosure Schedule:
(a) Each Seller
has all requisite power and authority to execute and deliver this
Amendment and to perform such Seller’s obligations under this
Amendment. The execution, delivery and performance of this
Amendment have been duly authorized by all necessary action on the
part of each Seller. This Amendment has been duly executed and
delivered by each Seller and constitutes the legal, valid and
binding obligation of such Seller, enforceable against such Seller
in accordance with its terms, except as enforceability may be
limited by insolvency, moratorium, bankruptcy or other s
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