AMENDMENT NO. 3 TO
ASSET PURCHASE AGREEMENT
Cash America Net Holdings, LLC
and its Subsidiaries set forth on the signature pages hereto
(successors in interest to 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. 3 TO
ASSET PURCHASE AGREEMENT
This Amendment
No. 3 to Asset Purchase Agreement (the “ Third
Amendment ”) is made as of October 31, 2008, by and among
Cash America International, Inc., a Texas corporation (“
CAI ”), Cash America Net Holdings, LLC, a Delaware
limited liability company (“ CANH ”), each of
the subsidiaries of CANH set forth on the signature pages to this
Amendment (the “ CANH Subs ” and together with
CANH, collectively, “ 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 Third 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 ”).
Purchaser (as
successor in interest to CAI), Sellers and Members are parties to
the Asset Purchase Agreement, dated as of July 9, 2006,
Amendment Number 1 thereto dated as of September 15, 2006 and
Amendment Number 2 thereto dated as of May 4, 2007
(collectively, the “ Purchase Agreement ”), and
CAI is jointly and severally liable for the obligations of
Purchaser under the Purchase Agreement.
The parties hereto
desire to further amend the Purchase Agreement as more particularly
set forth below.
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 Third Amendment shall have the meaning set
forth in the Purchase Agreement. This Third 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:
(a)
Section 1.1 .
Section 1.1 of the Purchase
Agreement is hereby amended by adding the following
definition:
“Third Amendment” means Amendment No. 3 to
the Agreement.
(b)
Section 1.2 .
Section 1.2 of the Purchase
Agreement is hereby amended by adding the following Additional
Defined Terms to the table set forth therein:
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Defined
Term
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Section
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2.6(e)(i)(A)
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2.6(e)(i)(A)
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(b)
Section 2.6 .
Section 2.6(e)(i) of the
Purchase Agreement is hereby amended so that it reads as
follows:
(e) (i) The
fifth supplemental earn-out payment (the “ Fifth
Supplemental Payment ”) will be $69,492,771.00, which is
the amount equal to (i)(x) the LTM EBITDA, calculated using the
“EBITDA Calculation Method” described on Exhibit B
of the Agreement, for the twelve-month period ending on the last
day of the twenty-fourth full calendar month following the Closing
Date (the “ Fifth Measurement
Date ”), multiplied by (y) 5.0, and
(ii) minus the sum of the Initial Consideration (as may be
adjusted pursuant to Section 2.5(b) and (c)), the First
Supplemental Payment, the Second Supplemental Payment, the Third
Supplemental Payment and the Fourth Supplemental Payment. The
Purchaser shall pay the Fifth Supplemental Payment to the Sellers
as follows:
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A.
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One
half of the Fifth Supplemental Payment (the “ First
Installment ”) shall be paid in cash as soon as
practicable after the effectiveness of the Third Amendment;
and
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B.
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One
half of the Fifth Supplemental Payment (the “ Second
Installment ”), plus the Deferral Fee (as described
below), shall be payable on the following terms:
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(a) The
Second Installment, including any then accrued but unpaid Deferral
Fee, shall be due and payable on March 31, 2009; the Deferral
Fee being calculated on the unpaid portion of the Second
Installment each day such unpaid portion is outstanding beginning
on the date the First Installment is paid and all payments made
shall be credited first, to the discharge of the Deferral Fee then
accrued hereunder, and second, to the reduction of the unpaid
portion of the Second Installment.
(b) The
portion of the Deferral Fee accruing through December 31, 2008
shall be payable on or before December 31, 2008, if such
portion is not otherwise paid in accordance with Subsection 4,
below.
(c) The
Second Installment and any Deferral Fee shall be payable in
cash.
2.
Deferral Fee . The deferral fee
(“Deferral Fee”) shall be a fee equal to the interest
accrued on any unpaid portion of the Second Installment beginning
on the date the First Installment is paid and ending on the date
all then outstanding portions of the Second Installment and any
Deferral Fees have been fully paid. The Deferral Fee shall be
calculated at a fixed rate of fifteen percent (15%) per annum and
shall be determined on the basis of a 365 day year.
3.
Default Rate . The unpaid portion of the
Second Installment or Deferral Fee shall bear interest from and
after the specified payment due date therefore, as applicable,
until such amount is fully paid, at the rate of thirty-six percent
(36%) per annum.
4.
Early Payment . Purchaser reserves the
right to pay all or any part of the unpaid portion of the Second
Installment, including any then-accrued Deferral Fee, without
penalty (a) during the period beginning December 15, 2008
through ending December 31, 2008 and (b) at any time upon
and after the introduction of legislation, or the proposal or
introduction of rules, interpretation or guidance, or other event
that could, if adopted, in the judgment of Purchaser, give rise to
Purchaser’s indemnification obligations under
Section 9.2(d) of this Agreement. Any early payments shall be
applied first to any accrued and unpaid Deferral Fee and second to
the unpaid portion of the Second Installment. Purchaser may not
otherwise make an early payment of the Second
Installment.
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(a) It
is expressly provided that upon default in the payment of the
Second Installment or Deferral Fee, as each shall become due and
payable, the Sellers may, at their option, without further notice
or demand, pursue the collection of the unpaid portion thereof,
together with the interest accrued thereon pursuant to Subsection
3, above.
(b) Upon
default in the payment of the portion of the Deferral Fee payable
on or before December 31, 2008 pursuant to subsection 1(b) of
this Section 2.6(e)(1)(B), Sellers may, at their option,
without further notice or demand, declare the unpaid portion of the
Second Installment, together with the accrued and unpaid portion of
the Deferral fee, immediately due and payable.
(c) In
the event default is made under subsections 5(a) or (b) of
this Section 2.6(e)(1)(B), and the same is placed in the hands
of an attorney for collection, or suit is brought on same, or the
same is collected through probate, bankruptcy or other judicial
proceedings, then the Purchaser agrees and promises to pay all
costs of collection, including reasonable attorneys’
fees.
6.
No Usury Intended; Usury Savings Clause
. In no event shall the Deferral Fee contracted for,
charged or received pursuant to this S
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