ASSET PURCHASE AGREEMENT

Exhibit 10.1

 

 

 

ASSET PURCHASE AGREEMENT

7-ELEVEN, INC.,

VCOM FINANCIAL SERVICES, INC.

AND

CARDTRONICS, LP

DATED AS OF JUNE 1, 2007

 

 

TABLE OF CONTENTS

				Page
ARTICLE I		DEFINITIONS			1
1.1		Definitions			1
1.2		Other Definitional Provisions.			6
1.3		Cross Reference of Other Definitions			6
ARTICLE II		PURCHASE AND SALE; ASSUMPTION OF CERTAIN LIABILITIES; CLOSING			8
2.1		Purchase and Sale.			8
2.2		Net Working Capital			10
2.3		Closing.			12
2.4		Closing Transactions			12
2.5		Apportionment			13
ARTICLE III		CONDITIONS TO CLOSING			14
3.1		Conditions to Each Party’s Obligation			14
3.2		Conditions to the Purchaser’s Obligation			14
3.3		Conditions to the Sellers’ Obligation			16
ARTICLE IV		COVENANTS PRIOR TO CLOSING			16
4.1		Mutual Covenants of the Parties.			16
4.2		Covenants of the Sellers.			19
4.3		Covenants of the Purchaser.			23
ARTICLE V		REPRESENTATIONS AND WARRANTIES OF THE SELLERS			24
5.1		Organization and Corporate Power			24
5.2		Authorization of Transactions			24
5.3		Absence of Conflicts			25
5.4		Financial Statements and Related Matters.			25
5.5		Absence of Undisclosed Liabilities			26
5.6		Absence of Certain Developments			26
5.7		Assets.			26
5.8		Taxes			27
5.9		Contracts and Commitments.			28
5.10		Proprietary Rights.			28
5.11		Litigation; Proceedings			29
5.12		Brokerage			29
5.13		Governmental Licenses and Permits			29
5.14		Employee Matters			30

				Page
5.15		Employee Benefit Matters.			30
5.16		Compliance with Laws			30
5.17		Convenience Store Business			31
5.18		Theft			31
ARTICLE VI		REPRESENTATIONS AND WARRANTIES OF THE PURCHASER			31
6.1		Organization and Corporate Power			31
6.2		Authorization of Transaction			31
6.3		Absence of Conflicts			32
6.4		Litigation			32
6.5		Brokerage			32
6.6		Availability of Funds			32
6.7		HSR Act			32
ARTICLE VII		TERMINATION			33
7.1		Termination			33
7.2		Effect of Termination; Specific Performance.			33
7.3		Return of Documentation			34
ARTICLE VIII		INDEMNIFICATION AND RELATED MATTERS			34
8.1		Survival			34
8.2		Indemnification.			34
ARTICLE IX		ADDITIONAL AGREEMENTS			39
9.1		Continuing Assistance			39
9.2		Tax Matters.			39
9.3		Public Announcements			40
9.4		Further Transfers			40
9.5		Expenses			40
9.6		Restrictive Covenants.			40
9.7		Vault Cash and Replacement Vault Cash Facility			41
9.8		Employee Matters			42
9.9		Allocation of Purchase Price			42
9.10		Third Party Consents			42
9.11		Bulk Sales Law			43
ARTICLE X		MISCELLANEOUS			43
10.1		Amendment and Waiver			43
10.2		Notices			43
10.3		Binding Agreement; Assignment			44
10.4		Severability			44
10.5		No Strict Construction			44
10.6		Captions			44

				Page
10.7		Entire Agreement			44
10.8		Counterparts			45
10.9		Governing Law			45
10.10		Parties in Interest			45
10.11		Director and Officer Liability			45
10.12		Disclosure Generally			45

INDEX OF SCHEDULES AND EXHIBITS

Schedules to Asset Purchase Agreement

Permitted Encumbrance Schedule
Acquired Assets Schedule
Acquired Contracts Schedule
Assumed Liabilities Schedule
Required Consent Schedule
Necessary Employees Schedule

Sellers Disclosure Schedules

Sellers Conflicts Schedule
Financial Statements Schedule
Excluded Contracts Schedule
Liabilities Schedule
Proprietary Rights Schedule
Developments Schedule
Assets Schedule
Leases Schedule
Taxes Schedule
Litigation Schedule
Brokerage Schedule
Permits Schedule
Business Employees Schedule
Employee Benefits Schedule
Loss Schedule

Purchaser Disclosure Schedules

Purchaser Conflicts Schedule
Purchaser Financing Schedule

Exhibits

		Exhibit A		Bill of Sale and Assignment and Assumption
		Exhibit B		Network Services Agreement
		Exhibit C		Placement Agreement
		Exhibit D		Indemnity Letter Assignment

ASSET PURCHASE AGREEMENT

     THIS ASSET PURCHASE AGREEMENT is made as of June 1, 2007, by and among 7-Eleven, Inc., a Texas corporation (“ 7-Eleven ”), Vcom Financial Services, Inc., a Texas corporation (“ VFS ” and collectively with 7-Eleven, the “ Sellers ”) and Cardtronics, LP, a Delaware limited partnership (the “ Purchaser ”). The Sellers and the Purchaser are referred to herein collectively as the “ Parties ” and individually as a “ Party .”

     WHEREAS, the Purchaser and the Sellers have determined that it is advisable to consummate the sale and transfer of certain assets and liabilities of the Sellers constituting the Business (as defined herein) to the Purchaser, all on the terms and subject to the conditions set forth in this Agreement;

     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:

ARTICLE I
DEFINITIONS

     1.1 Definitions . For purposes hereof, the following terms, when used herein with initial capital letters, shall have the respective meanings set forth herein:

     “ Acquired Parts and Equipment ” means the spare parts and other personal property, including signage and promotional materials, relating to the ATM Kiosks and the Vcom Kiosks that are described on the Acquired Assets Schedule .

     “ Affiliate ” shall mean, with respect to any Person, any other Person controlling, controlled by or under common control with such first Person. The term “Affiliate” shall not include franchisees or area licensees of the Sellers.

     “ Agreement ” means this Asset Purchase Agreement, including all Exhibits and Schedules hereto, as it may be amended from time to time in accordance with its terms.

     “ Antitrust Laws ” means the HSR Act, the Sherman Act, as amended, the Clayton Act, as amended, the Federal Trade Commission Act, as amended, or any other federal, state or foreign law or regulation or decree designed to prohibit, restrict or regulate actions for the purpose or effect of monopolization or restraint of trade.

     “ ATM Kiosks ” means automated devices that provide traditional automated teller machine functions including cash withdrawals, balance inquiries and account transfers or that additionally provide certain advanced automated teller machine functions and, in either case, that are set forth under the heading “ATM Kiosks” on the Acquired Assets Schedule ; provided , however , that ATM Kiosks shall not include any Vcom Kiosks.

     “ Business ” means the business, as conducted by the Sellers through the Closing Date, of owning, leasing and operating Vcom Kiosks and ATM Kiosks, contracting with third parties to offer their products or services on Vcom Kiosks and ATM Kiosks, and developing, installing, testing, operating and maintaining Vcom Kiosks and ATM Kiosks.

     “ Business Data ” means data in the possession of 7-Eleven related to and necessary for the ongoing operation or the Business. In no event will Business Data be deemed to include (i) any information protected by a legal privilege, (ii) any Customer Data, (iii) any information owned or provided by a third party and subject to confidentiality restrictions, (iv) any e-mail sent or received more than thirty (30) days prior to Closing, or (v) any data, documents or information created prior to August 2004.

     “ Business Day ” means a day other than (a) a Saturday, Sunday or federal holiday or (b) a day on which commercial banks in New York, New York are authorized or required to be closed.

     “ Cash Purchase Agreement ” means that certain Contract Cash Solutions Agreement, dated as of March 8, 2004, by and between 7-Eleven and Wells Fargo Bank.

     “ Claims ” means any and all demands, claims, suits, causes of action, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses), settlements and judgments (including, without limitation, all claim losses), whether arising in equity, at common law or by statute, or under the law of contracts, torts (including, without limitation, negligence and strict liability without regard to fault) or property, of every kind or character, subject in all respects to Section 8.2(f) , Section 8.2(h) and Section 8.2(l) .

     “ Closing Indebtedness Amount ” means the Indebtedness of the Business as of the Calculation Time.

     “ Code ” means the United States Internal Revenue Code of 1986, as amended, and all rules and regulations promulgated thereunder.

     “ Contact Executive ” means that certain individual employed by either the Sellers or the Purchaser, as applicable, who is designated as the contact person responsible for the performance by the Sellers or the Purchaser, as applicable, of this Agreement. The initial Contact Executive for the Sellers is Rick Updyke. The initial Contact Executive for the Purchaser is Thomas E. Upton.

     “ Current Assets ” means the sum of all aggregate outstanding accounts receivable of the Business as conducted by the Sellers (excluding any accounts receivable related to Vault Cash and net of any reserve for bad debts, which bad debts shall be reflected on the Working Capital Statement (as defined below)), cash (including (a) cash that has been deposited into a Vcom Kiosk via the bunch note acceptor, and (b) cash in transit with a courier that has been removed from an ATM Kiosk or Vcom Kiosk, but excluding (y) cash in any bank account set forth on the Excluded Bank Account Schedule and (z) checks in transit for deposit) and any prepaid items or deposits.

     “ Current Liabilities ” means the sum of all aggregate outstanding accounts payable and accrued liabilities of the Business as conducted by the Sellers (excluding Vault Cash and any deferred federal income tax liabilities).

     “ Customer Data ” shall mean data in the possession of 7-Eleven, which is related to an individual, and which was collected, created, or received by 7-Eleven or others as a result of or relating to the individual’s use of an ATM Kiosk or a VCOM Kiosk.

     “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

     “ GAAP ” means, at a given time, generally accepted accounting principles in the United States, consistently applied.

     “ Governmental Entity ” means any governmental department, commission, board, bureau, agency, court or other instrumentality of the United States or any state, county, parish, municipality, jurisdiction, or other political subdivision thereof.

     “ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended.

     “ Indebtedness ” of any Person means, without duplication: (a) indebtedness for borrowed money or for the deferred or installment purchase price of property or services in respect of which such Person is liable (other than trade payables and other current liabilities incurred in the ordinary course of business); (b) any indebtedness evidenced by any note, bond, debenture or other debt security; (c) indebtedness guaranteed in any manner by such Person, including a guarantee in the form of an agreement to repurchase or reimburse; (d) obligations under capital leases in respect of which such Person is liable, contingently or otherwise, as obligor, guarantor or otherwise, or in respect of which obligations such Person assures a creditor against loss; and (e) any accrued interest, prepayment premiums or penalties related to any of the foregoing.

     “ Knowledge ” means, (a) with respect to the Purchaser, the actual knowledge of Thomas E. Upton, Michael E. Keller, John McHenry, Michael Clinard and Jerry Garcia and (b) with respect to the Sellers, the actual knowledge of Rick Updyke, David Clark, David Seltzer, Bill Sass, John Dyer, Mike Pearson and Bennett Robinson, each in their capacities as employees of the Sellers, after due inquiry, which inquiry includes consultation with the officers, employees, consultants and agents who have primary responsibility over the matter with respect to which the term “Knowledge” is used in this Agreement.

     “ Licenses ” means all permits, licenses, franchises, certificates, approvals, consents, filings and other authorizations of Governmental Entities or other similar rights.

     “ Liens ” means any liens, pledges, claims, security interests, restrictions, mortgages, tenancies, and other possessory interests, conditional sale or other title retention agreements, assessments, easements, rights of way, covenants, restrictions on transfer, rights of first refusal, defects in title, encroachments, and other burdens, options or encumbrances of any kind.

     “ Permitted Encumbrances ” means (a) statutory liens for current Taxes not yet due and payable, or being contested in good faith by appropriate proceedings, (b) mechanics’, carriers’, workers’, repairers’, and other similar statutory liens arising or incurred in the ordinary course of business for obligations which are not overdue for a period of more than 90 days or which are being contested in good faith by appropriate proceedings, (c) pledges or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, (d) deposits to secure the performance of bids, contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of

business, and (e) Liens outstanding on the date hereof which secure Indebtedness and which are described in the Permitted Encumbrance Schedule .

     “ Person ” means an individual, a partnership, a corporation, an association, a limited liability company, a joint stock company, a trust, a joint venture, an unincorporated organization, a governmental entity or any department, agency or political subdivision thereof and any other entity.

     “ Proprietary Rights ” means intellectual property rights in all of the following in any jurisdiction in the world: (a) patents, patent applications, patent disclosures and inventions, all improvements thereto (whether patentable or unpatentable and whether or not reduced to practice), together with all reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof; (b) trademarks, service marks, trade dress, trade names, slogans, logos, internet domain names and corporate names and registrations and applications for registration thereof, together with all of the translations, adaptations, derivations and combinations thereof including goodwill associated therewith; (c) copyrights (registered or unregistered) and copyrightable works and registrations and applications for registration thereof; (d) mask works and registrations and applications for registration thereof; (e) trade secrets and other confidential information; and (f) computer software (which may include source code, executable code and data).

     “ Purchaser Disclosure Schedule ” means, together, the Purchaser Conflicts Schedule and the Purchaser Financing Schedule.

     “ Purchaser Material Adverse Effect ” means any result, occurrence, condition, fact, violation, event or effect of any of the foregoing that prevents or materially impairs the ability of the Purchaser to consummate the purchase and sale of the Acquired Assets, the assumption of the Assumed Liabilities and each of the other transactions contemplated by this Agreement or any other Transaction Document.

     “ Seller Material Adverse Effect ” means any result, occurrence, condition, fact, violation, event or effect of any of the foregoing that results in a material adverse effect on the business, financial condition, operations, results of operations or assets of the Business, taken as a whole; provided , however , that no result, occurrence, condition, fact, violation, event or effect shall be deemed to constitute, nor shall any of the foregoing be taken into account in determining whether there has been or may be, a Seller Material Adverse Effect to the extent that such result, occurrence, condition, fact, violation, event or effect results from, arises out of, or relates to (a) a general deterioration in the economy; (b) the outbreak or escalation of hostilities involving the United States, the declaration by the United States of a national emergency or war or the occurrence of any other calamity or crisis, including acts of terrorism; (c) the disclosure of the fact that the Purchaser is the prospective acquirer of the Acquired Assets, the Assumed Liabilities or the Business; (d) the announcement or pendency of the transactions contemplated by this Agreement or any other Transaction Document; (e) any change in accounting requirements or principles imposed upon the Business, or the interpretation thereof; (f) the failure of the Sellers to obtain any consent, approval, action, authorization, permit or other License of any Governmental Entity or third party with respect to the transactions contemplated by this Agreement or any other Transaction Document; (g) any actions taken by the Purchaser or

any of its Affiliates; or (h) any compliance with the terms of, or the taking of any action required by, this Agreement or any other Transaction Document or the failure to take any action prohibited by this Agreement or any other Transaction Document.

     “ Sellers Disclosure Schedule ” means, collectively, the Developments Schedule, the Assets Schedule, the Taxes Schedule, the Litigation Schedule, the Liabilities Schedule, the Brokerage Schedule, the Permits Schedule, the Excluded Contracts Schedule, the Proprietary Rights Schedule, the Business Employees Schedule, the Financial Statements Schedule, the Sellers Conflicts Schedule, and the Employee Benefits Schedule.

     “ Subsidiary ” means, with respect to any Person, of which (a) in the case of a corporation, a majority of the total voting power of shares of stock of which is entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof or (b) in the case of a partnership, limited liability company, association or other business entity, a majority of the partnership or other similar ownership interest of which is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes of this definition, a Person is deemed to have a majority ownership interest in a partnership, limited liability company, association or other business entity if such Person is allocated a majority of the gains or losses of such partnership, limited liability company, association or other business entity or is or controls the managing director or general partner of such partnership, limited liability company, association or other business entity.

     “ Tax Returns ” means returns, declarations, reports, claims for refund, information returns or other documents (including any related or supporting schedules, statements or information) filed or required to be filed in connection with the determination, assessment or collection of Taxes of any party or the administration of any laws, regulations or administrative requirements relating to any Taxes.

     “ Taxes ” shall mean all taxes, levies, charges or fees of any kind whatsoever, whether computed on a separate or consolidated, unitary or combined basis or in any other manner, including all income, corporation, gross receipts, transfer, excise, property, sales, use, value-added, license, payroll, pay-as-you-earn, withholding, social security and franchise or other governmental taxes or charges, imposed by the United States or any state, county, local or foreign government, and such term shall include any interest, penalties or additions to tax attributable to the foregoing.

     “ Transaction Documents ” means this Agreement and all other agreements, instruments, certificates and other documents to be entered into or delivered by any Party in connection with the transactions contemplated to be consummated pursuant to this Agreement.

     “ Treasury Regulations ” means the United States Treasury Regulations promulgated pursuant to the Code.

     “ Vcom Kiosks ” means automated devices that provide the following advanced automated teller machine functions: check cashing; money orders; money transfer; bill payment; and

telecommunications products and that are set forth under the heading “Vcom Kiosks” on the Acquired Assets Schedule; provided , that Vcom Kiosks shall not include any ATM Kiosks.

     “ Warehoused ATM Kiosks and Vcom Kiosks ” means those ATM Kiosks and Vcom Kiosks indicated as “Warehoused” on the Acquired Assets Schedule .

     “ Wells Fargo Bank ” means Wells Fargo Bank, National Association.

     “ Working Capital ” means Current Assets minus Current Liabilities.

     1.2 Other Definitional Provisions .

               (a)  Accounting Terms . Accounting terms which are not otherwise defined in this Agreement have the meanings given to them under GAAP. To the extent that the definition of an accounting term that is defined in this Agreement is inconsistent with the meaning of such term under GAAP, the definition set forth in this Agreement will control.

               (b)  “Hereof,” etc. The terms “hereof,” “herein” and “hereunder” and terms of similar import are references to this Agreement as a whole and not to any particular provision of this Agreement. Section, clause, Schedule and Exhibit references contained in this Agreement are references to Sections, clauses, Schedules and Exhibits in or to this Agreement, unless otherwise specified.

               (c)  Successor Laws . Any reference to any particular Code section or any other law or regulation will be interpreted to include any revision of or successor to that section regardless of how it is numbered or classified.

     1.3 Cross Reference of Other Definitions . Each capitalized term listed below is defined in the corresponding Section of this Agreement:

Term		Section
1060 Forms		9.9
7-Eleven		Preface
7-Eleven Acquired Assets		2.1(a)(i)
7-Eleven Assumed Contracts		2.1(c)(i)(A)
7-Eleven Assumed Liabilities		2.1(c)(i)
Acquired Assets		2.1(a)(ii)
Acquisition Transaction		4.2(f)
Allocation		9.9
Applicable Limitation Date		8.1
Assumed Contracts		2.1(c)(ii)(A)
Assumed Liabilities		2.1(c)(ii)
ATM’s		9.7
Audited Financial Statements		4.2(g)
Balance Sheet Date		5.4(a)
Bill of Sale and Assignment		2.4(a)(i)
Business Employees		5.14

Term		Section
Business Intellectual Property		5.10(b)
Cap		8.2(b)(iv)
Cash Portion		2.1(e)(ii)
Closing		2.3(a)
Closing Date		2.3(a)
Closing Transactions		2.4
Confidentiality Agreement		4.2(c)
Cure Period		7.1(b)(i)
Determination		2.2(b)
Disputed Matter		2.2(b)
Economic Effect Time		2.3(b)
Employee		9.6(b)
Excluded Liabilities		2.1(d)
Final Working Capital Statement		2.2(b)
Financial Statements		5.4(a)
Gap Cash		9.7
Indemnified Person		8.2(e)
Indemnifying Party		8.2(e)
Indemnity Letter Assignment		2.4(a)(v)
Known Breaches		3.2(a)
Latest Balance Sheet		5.4(a)
Laws		5.16
Loss Threshold		8.2(b)(ii)
Necessary Employees		3.2(d)
Network Services Agreement		2.4(a)(iii)
Non-Competition Group		9.6(a)
Party		Preface
Placement Agreement		2.4(a)(iv)
Property Taxes		9.2(a)(i)
Purchase Price		2.1(e)
Purchase Price Allocation Schedule		9.9
Purchaser		Preface
Purchaser Parties		8.2(a)
Purchaser’s Dispute Report		2.2(b)
Replacement Vault Cash Facility		9.7
Scheduled Proprietary Rights		5.10(a)
Seller Group		4.2(f)
Sellers		Preface
Sellers Employee Benefit Plan		5.15(a)
Seller Parties		4.2(c)
Supplemental Disclosure Item		4.2(e)(ii)
Supplemental Disclosure Letter		4.2(e)(ii)
Supplemental Working Capital Report		2.2(a)
Termination Date		7.1(b)(iii)

Term		Section
third-party action		8.2(e)
Transferred Employees		9.8
Transition Services Agreement		4.1(d)
Vault Cash		9.7
VFS		Preface
VFS Acquired Assets		2.1(a)(ii)
VFS Assumed Contracts		2.1(c)(ii)(A)
VFS Assumed Liabilities		2.1(c)(ii)
Working Capital Statement		2.2(a)

ARTICLE II
PURCHASE AND SALE; ASSUMPTION OF CERTAIN LIABILITIES; CLOSING

     2.1 Purchase and Sale .

               (a)  Acquired Assets .

               (i) 7-Eleven Assets . Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, 7-Eleven shall sell, convey, assign, transfer and deliver to the Purchaser, and the Purchaser shall purchase and acquire, free and clear of any Liens, other than Permitted Encumbrances, all right, title and interest of 7-Eleven in the assets, rights and interests exclusively or primarily utilized in the operation of the Business that are owned by 7-Eleven or its Affiliates, and that are set forth on the Acquired Assets Schedule , (collectively, the “ 7-Eleven Acquired Assets ”).

               (ii) VFS Assets . Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, VFS shall sell, convey, assign, transfer and deliver to the Purchaser, and the Purchaser shall purchase and acquire, free and clear of any Liens, other than Permitted Encumbrances, all right, title and interest of VFS in the assets, rights and interests exclusively or primarily utilized in the operation of the Business that are owned by VFS or its Affiliates, and that are set forth on the Acquired Assets Schedule (collectively, the “ VFS Acquired Assets ” and, together with the 7-Eleven Acquired Assets, the “ Acquired Assets ”).

               (b)  Excluded Assets . Any assets, rights and interests not expressly set forth on the Acquired Assets Schedule are expressly excluded from the purchase and sale contemplated hereby and, as such, shall not be Acquired Assets.

               (c)  Assumed Liabilities .

               (i) 7-Eleven Assumed Liabilities . Subject to Section 2.1(d) below, as additional consideration for the 7-Eleven Acquired Assets, at the Closing, the Purchaser will assume and agrees to pay, honor, satisfy, perform and discharge when due the following liabilities and obligations of 7-Eleven (the “ 7-Eleven Assumed Liabilities ”):

                    (A) all liabilities and obligations under the agreements, contracts, orders and commitments included within the 7-Eleven Acquired Assets (collectively, the “ 7-Eleven Assumed Contracts ”) and which agreements, contracts, orders and commitments are described on the Acquired Contracts Schedule , but only to the extent arising from the conduct of the Business after the Closing Date;

                    (B) all liabilities and obligations arising from the conduct of the Business after the Closing Date;

                    (C) all liabilities and obligations for Taxes with respect to the 7-Eleven Assets that are the responsibility of the Purchaser under Section 9.2 ; and

                    (D) all liabilities and obligations specifically identified and described on the Assumed Liabilities Schedule .

               (ii) VFS Assumed Liabilities . Subject to Section 2.1(d) below, as additional consideration for the VFS Acquired Assets, at the Closing, the Purchaser will assume and agrees to pay, honor, satisfy, perform and discharge when due the following liabilities and obligations of VFS (the “ VFS Assumed Liabilities ” and together with the 7-Eleven Assumed Liabilities, the “ Assumed Liabilities ”):

                    (A) all liabilities and obligations under the agreements, contracts, orders and commitments included within the VFS Acquired Assets (collectively, the “ VFS Assumed Contracts ” and, together with the 7-Eleven Assumed Contracts, the “ Assumed Contracts ”) and which agreements, contracts, orders and commitments are described on the Acquired Contracts Schedule , but only to the extent arising from the conduct of the Business after the Closing Date;

                    (B) all liabilities and obligations arising from the conduct of the Business after the Closing Date;

                    (C) all liabilities and obligations for Taxes with respect to the Vcom Assets that are the responsibility of the Purchaser under Section 9.2 ; and

                    (D) all liabilities and obligations specifically identified and described on the Assumed Liabilities Schedule.

               (d)  Excluded Liabilities . Except as expressly set forth in Section 2.1(c) above, the Purchaser shall not assume or become liable for, and shall not be deemed to have assumed or have become liable for, any of the Sellers’ liabilities or obligations, whether accrued, absolute or contingent, whether known or unknown, whether disclosed or undisclosed, whether

due or to become due, and regardless of when asserted (collectively, the “ Excluded Liabilities ”). The Sellers hereby acknowledge that they are retaining the Excluded Liabilities and, as between the Sellers, on the one hand, and the Purchaser and its Affiliates, on the other hand, the Sellers shall have the responsibility to pay, discharge and perform all such liabilities and obligations promptly when due.

               (e)  Purchase Price for Acquired Assets . The aggregate purchase price (the “ Purchase Price ”) for the Acquired Assets shall consist of the following:

               (i) The assumption by the Purchaser of the Assumed Liabilities; and

               (ii) The payment of an amount (the “ Cash Portion ”) to the Seller equal to One Hundred Thirty-Five Million Dollars ($135,000,000), as such amount may be adjusted pursuant to the terms hereof.

     2.2 Net Working Capital . The Parties have agreed that the Purchaser shall acquire the Business on a neutral working capital basis. The foregoing provisions are intended to accomplish the foregoing.

               (a) On the third Business Day prior to the Closing Date, the Sellers shall deliver to the Purchaser a statement setting forth the Sellers’ good faith estimate of the Working Capital as of the Closing Date (the “ Working Capital Statement ”). The Working Capital Statement shall be prepared by the Sellers in accordance with GAAP, consistently applied, using the historical accounting policies, principles and procedures that have been applied by the Sellers in preparation of their year-end audited financial statements for the fiscal year ended December 31, 2006. At Closing, (i) the Purchase Price shall be reduced by an amount equal to the excess, if any, of (x) the aggregate amount of Current Liabilities reflected on the Working Capital Statement over (y) the aggregate amount of Current Assets reflected on the Working Capital Statement, or (ii) the Purchase Price shall be increased by an amount equal to the excess, if any, of (x) the aggregate amount of Current Assets reflected on the Working Capital Statement, over (y) the aggregate amount of Current Liabilities reflected on the Working Capital Statement, as applicable. Within thirty (30) Business Days after the Closing Date, the Sellers shall prepare and deliver to the Purchaser a written report (the “ Supplemental Working Capital Report ”) setting forth the Sellers’ good faith estimate of the amount of Working Capital of the Business as of the Closing Date. The Working Capital Statement and the Supplemental Working Capital Report shall (i) not include any changes in accounting practices or accounting principles from those applied in preparing the Sellers’ year-end audited financial statements for the fiscal year ended December 31, 2006, and (ii) not include any purchase accounting adjustments or other adjustments outside the ordinary course of business of the Sellers. For purposes of the preceding sentence, “changes in accounting practices” shall include all changes in accounting practices, policies, principles, procedures or methodologies with respect to financial statements, their classification or presentation, as well as all changes in practices, methods, conventions or assumptions utilized in making accounting estimates.

               (b) The Sellers shall allow the Purchaser and its representatives access at reasonable times after the Closing Date to the books and records of the Sellers related to the Business and to the Sellers’ financial employees and accountants involved in the preparation of

the Working Capital Statement and the Supplemental Working Capital Report in order to allow the Purchaser to examine and determine the accuracy of the Supplemental Working Capital Report. Within forty-five (45) Business Days of the Closing Date, the Purchaser shall complete its examination thereof and may deliver to the Sellers a written report setting forth any proposed adjustments to the Supplemental Working Capital Report (“ Purchaser’s Dispute Report ”). If the Purchaser notifies the Sellers of its acceptance of the Supplemental Working Capital Report, or if the Purchaser fails to deliver a report of proposed adjustments to the Supplemental Working Capital Report within the forty-five (45) Business Day period specified in the preceding sentence, the Supplemental Working Capital Report shall be conclusive and binding on the Parties as of the last day of such forty-five (45) Business Day period. The Purchaser and the Sellers shall use good faith efforts to resolve any dispute as to the Supplemental Working Capital Report (each a “ Disputed Matter ”), and any resolution between them as to a Disputed Matter shall be final, binding and conclusive on the parties hereto. If, after thirty (30) days following the receipt by the Sellers of the Purchaser’s Dispute Report, the Purchaser and the Sellers are unable to resolve any Disputed Matter, the Disputed Matter shall be submitted to 7-Eleven’s Chief Financial Officer or his/her designee and the Purchaser’s Chief Financial Officer or equivalent for resolution, who shall then use reasonable good faith efforts to resolve the Disputed Matter within thirty (30) days. If such individuals cannot resolve the Disputed Matter within thirty (30) days, such Disputed Matter shall promptly be referred to Ernst & Young LLP or another mutually agreeable independent accounting firm for resolution. The Sellers and the Purchaser shall promptly execute and deliver any engagement letter reasonably requested in connection with the engagement of the independent accounting firm. The independent accounting firm shall be instructed to conduct a review of the Supplemental Working Capital Report and to use every reasonable effort to make its determination with respect to such Disputed Matter (the “ Determination ”) within sixty (60) days of the submission to the independent accounting firm of such Disputed Matter. Each of the Sellers and the Purchaser shall give the independent accounting firm access at all reasonable times to the books, records, accounts and work papers used to prepare the Supplemental Working Capital Report and to the Sellers’ and the Purchaser’s respective financial employees and accountants involved in the preparation and verification of the Supplemental Working Capital Report. After completing the Determination, the independent accounting firm shall deliver notice of the Determination to the Purchaser and the Sellers and upon receipt thereof, the Determination shall be final, binding and conclusive on the parties hereto with respect to such Disputed Matter. The final determination of the Working Capital of the Business as of the Closing Date shall be as set forth in the Supplemental Working Capital Report as adjusted by any disputes resolved by the Parties and by the independent accounting firm’s Determination, if any, and such final adjusted amounts will be set forth in a final working capital statement (the “ Final Working Capital Statement ”). The “Final Working Capital” shall be the difference between the aggregate amount of Current Assets reflected on the Final Working Capital Statement, and the aggregate amount of Current Liabilities reflected on the Working Capital Statement. The costs of hiring such independent accounting firm will be borne equally by the Sellers and the Purchaser.

(c) Within ten (10) days after the determination of the Final Working Capital in accordance with Section 2.2(c) , the Sellers or the Purchaser, as applicable, shall make a cash true-up payment to the other so that, after giving effect to such payment, the Sellers and the Purchaser are in the same position they would have been had such final amounts been known at the Closing and had the payment made under Section 2.2(b) been made based on the Final

Working Capital amounts rather than an estimated amount. Any payment due to a party pursuant to this Section 2.2(d) shall be made by wire transfer of immediately available funds to an account designated by the party entitled to such payment, and the party entitled to such payment shall provide written wire instructions to the paying party for such account at least three (3) Business Days prior to the date of payment. Payments made hereunder shall also bear interest from the date of initial calculation through the date of final determination, calculated at the federal funds rate in effect at the time of payment.

     2.3 Closing .

               (a) The closing of the transactions contemplated by this Agreement (the “ Closing ”) shall take place at the offices of Vinson & Elkins L.L.P., 2001 Ross Avenue, Dallas, Texas 75201. The parties shall establish a target Closing Date of June 30, 2007. In any event, Closing shall occur commencing at 10:00 a.m. on the fifth Business Day following the satisfaction or waiver of all conditions to the obligations of the Parties to consummate the transactions contemplated hereby (other than conditions with respect to actions the respective Parties will take at the Closing itself), or at such other place or on such other date as may be mutually agreeable to the Purchaser and the Sellers. The date and time of the Closing are herein referred to as the “ Closing Date .”

               (b) Notwithstanding anything contained in this Agreement to the contrary, revenues and expenses generated by the Acquired Assets shall be apportioned as provided for as of the Economic Effect Time. The term “ Economic Effect Time ” shall mean (i) with respect to revenues and expenses with respect to ATM Kiosks and Vcom Kiosks, the business day cutover time on the day immediately preceding the Closing Date as specified by each processor and/or electronic funds transfer network, and (ii) with respect to all other revenues and expenses to be apportioned hereunder, 11:59 p.m. (Central Standard Time) on the day prior to the Closing Date.

     2.4 Closing Transactions . Subject to the conditions set forth in this Agreement, the Parties shall consummate the following transactions (the “ Closing Transactions ”) on the Closing Date:

               (a)  Sellers Delivery Obligations . At the Closing, the Sellers, as applicable, shall deliver to the Purchaser the following:

               (i) Bill of Sale and Assignment . A duly executed counterpart of the Bill of Sale and Assignment and Assumption substantially in the form attached hereto as Exhibit A (the “ Bill of Sale and Assignment ”);

               (ii) Transition Services Agreement . A duly executed counterpart of the Transition Services Agreement;

               (iii) Network Services Agreement . A duly executed counterpart of the Network Services Agreement substantially in the form attached hereto as Exhibit B (the “ Network Services Agreement ”);

               (iv) Placement Agreement . A duly executed counterpart of the Placement Agreement substantially in the form attached hereto as Exhibit C (the “ Placement Agreement ”); and

               (v) Indemnity Letter Assignment . A duly executed counterpart of the THL Indemnity Letter Assignment and Assumption in the form attached hereto as Exhibit D (the “ Indemnity Letter Assignment ”)

               (vi) Certificate and Resolutions . The certificates described in Section 3.2(c) ; and

               (vii) Consents . An executed copy of each consent, if any, listed on the Required Consent Schedule .

               (b)  Purchaser Delivery Obligations . At the Closing, the Purchaser shall deliver to the Sellers the following:

               (i) Cash Portion . An amount equal to the Cash Portion, by wire transfer of immediately available funds, to an account designated by the Sellers prior to the Closing;

               (ii) Bill of Sale and Assignment . A duly executed counterpart of the Bill of Sale and Assignment;

               (iii) Transition Services Agreement . A duly executed counterpart of the Transition Services Agreement;

               (iv) Network Services Agreement . A duly executed counterpart of the Network Services Agreement;

               (v) Placement Agreement . A duly executed counterpart of the Placement Agreement; and

               (vi) Certificates and Resolutions . The certificates described in Section 3.3(b) .

     2.5 Apportionment . Unless otherwise provided in this Agreement or as taken into account in the Working Capital Statement or the Supplemental Working Capital Report, all License expenses pertaining to the Business, if any, and any other expenses pertaining to the Business, shall be apportioned between the Sellers, as applicable, and the Purchaser as of the date of Closing, regardless of the date assessed or payable. Such apportionments shall be based on the respective number of days elapsed during the pre-Closing and post-Closing periods (with the Closing Date being included in the post-Closing period), except that to the extent a statement or bill is based on transaction volume or another measure which is calculated on a daily basis, such apportionment shall be based on the respective transaction volume or other applicable measure during the pre-Closing and post-Closing periods. Either party shall have the right, for a period of one (1) year after Closing, to audit (at its own expense) the books and records of the other Party which pertain to expenses to be apportioned hereunder. In respect to any payments

to third parties scheduled to be made after the Closing, the Sellers, as applicable, shall make a remittance to the Purchaser equal to the portion of such post-Closing payment allocable to the Sellers and the Purchaser will in turn make the full payment to the third party when due.

ARTICLE III
CONDITIONS TO CLOSING

     3.1 Conditions to Each Party’s Obligation . The respective obligations of the Sellers and the Purchaser to effect the transactions contemplated hereby are subject to the satisfaction on or prior to the Closing Date of the following conditions:

               (a)  Governmental Consents and Approvals . All authorizations, consents, orders or approvals of, or declarations or filings with, or expirations of waiting periods imposed by, any Governmental Entity necessary for the consummation of the transactions contemplated by the Transaction Documents shall have been obtained, occurred or been filed, including those arising under all applicable Antitrust Laws, and any applicable waiting period under the HSR Act shall have expired or terminated.

               (b)  No Injunctions or Restraints . No temporary restraining order, preliminary or permanent injunction or other order issued by any Governmental Entity or any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the transactions contemplated hereby shall be in effect.

               (c)  No Action . No action shall have been taken nor any statute, rule or regulation shall have been enacted by any Governmental Entity that makes the consummation of the transactions contemplated hereby illegal.

     3.2 Conditions to the Purchaser’s Obligation . The obligation of the Purchaser to consummate the transactions contemplated by this Agreement is subject to the satisfaction of the following conditions as of the Closing Date:

               (a)  Compliance with Representations and Covenants . Each of the representations and warranties of the Sellers set forth in Article V hereof shall be true and correct in all material respects at and as of the Closing Date as though then made (except for any representation or warranty that expressly relates to an earlier date, in which case such representation or warranty shall have been true and correct only as of such earlier date) except, with respect to such representations and warranties, to the extent that any inaccuracies in such representations and warranties that have not been waived by the Purchaser, individually or in the aggregate, would not be reasonably expected to result in a Seller Material Adverse Effect, and the Sellers shall have performed and complied in all material respects with all of their respective covenants and agreements hereunder through the Closing. For purposes of determining whether the condition set forth in this Section 3.2(a) has been fulfilled with respect to the Sellers’ representations and warranties set forth in Article V or establishing a Known Breach (as defined below), each such representation and warranty shall be read without regard to materiality (including a Seller Material Adverse Effect) qualifications that may be contained therein. In the event that the Parties are aware of any inaccuracies in the representations and warranties of Sellers as of the Closing that, individually or in the aggregate, would not be reasonably expected

to result in a Seller Material Adverse Effect and that would otherwise be indemnifiable by the Sellers pursuant to Section 8.2 (other than Section 8.2(b)(ii) ) (each, only if set forth in the written notice described in this sentence and delivered by the Purchaser to the Sellers prior to the Closing, a “ Known Breach ”), the condition to the Purchaser’s obligation under this Section 3.2(a) shall be deemed satisfied; provided , however , that so long as the Purchaser delivers a written notice of any such Known Breaches (along with the Purchaser’s reasonable non-binding estimate of the damages attributable to each such Known Breach) to Sellers prior to Closing, the Purchaser shall be entitled to indemnification with respect to any such Known Breach set forth in such notice pursuant to the terms and conditions of Article VIII , but without regard to any limitations set forth in Section 8.2(b)(ii) .

               (b)  Required Consents . The Purchaser shall have been furnished with evidence reasonably satisfactory to it of the consent or approval of each Person that is a counterparty to the contracts identified on the Required Consent Schedule , if any.

               (c)  Financial Statements . The Purchaser shall have received the Audited Financial Statements.

               (d)  Employment Agreements . The Purchaser shall have negotiated a mutually acceptable employment agreement with each of the employees of the Sellers set forth on the Necessary Employees Schedule (the “ Necessary Employees ”).

               (e)  Store Locations . The Sellers shall at such time maintain and operate ATM Kiosks or Vcom Kiosks in no fewer than 5,500 stores.

               (f)  Material Adverse Change . There shall have been no event, change or circumstance that has caused, or would be reasonably expected to cause, a Seller Material Adverse Effect.

               (g)  Officer’s Certificate . On or prior to the Closing Date, the Sellers shall have delivered to the Purchaser each of the following:

               (i) a certificate from the Sellers in a form reasonably satisfactory to the Purchaser, dated as of the Closing Date, stating that the conditions specified in Section 3.2(a) have been satisfied; and

               (ii) a certificate from the Secretary of the Sellers certifying that the Sellers’ boards of directors have each approved the transactions contemplated by this Agreement.

               (h)  Closing Documents . All documents, instruments, certificates and other items required to be delivered by the Sellers pursuant to Section 2.4(a) shall have been delivered.

Any condition specified in this Section 3.2 may be waived by the Purchaser; provided , that no such waiver shall be effective against the Purchaser unless it is set forth in a writing executed by an authorized officer of the Purchaser.

     3.3 Conditions to the Sellers’ Obligation . The obligation of the Sellers to consummate the transactions contemplated by this Agreement is subject to the satisfaction of the following conditions as of the Closing Date:

               (a)  Compliance with Representations and Covenants . Each of the representations and warranties of the Purchaser set forth in Article VI shall be true and correct in all material respects at and as of the Closing Date as though then made (except for any representation or warranty that expressly relates to an earlier date, in which case such representation or warranty shall have been true and correct only as of such earlier date) except, with respect to such representations and warranties, to the extent that any inaccuracies in such representations and warranties that have not been waived by the Sellers, individually or in the aggregate, would not be reasonably expected to result in a Purchaser Material Adverse Effect, and the Purchaser shall have performed and complied in all material respects with all of its covenants and agreements hereunder through the Closing.

               (b)  Officer’s Certificate . On or prior to the Closing Date, the Purchaser shall have delivered to the Sellers each of the following:

               (i) a certificate from the Purchaser in a form reasonably satisfactory to the Sellers, dated the Closing Date, stating that the conditions specified in Section 3.3(a) have been satisfied; and

               (ii) a certificate from the Secretary of the Purchaser certifying that the Purchaser’s board of directors has approved the transactions contemplated by this Agreement.

               (c)  Vault Cash Agreement . The Purchaser shall have entered into the Replacement Vault Cash Facility.

               (d)  Closing Documents . All documents, instruments, certificates and other items required to be delivered by the Purchaser pursuant to Section 2.4(b) shall have been delivered.

Any condition specified in this Section 3.3 may be waived by the Sellers; provided , that no such waiver shall be effective against the Sellers unless it is set forth in a writing executed by an authorized officer of each of the Sellers.

ARTICLE IV
COVENANTS PRIOR TO CLOSING

     4.1 Mutual Covenants of the Parties .

               (a)  Governmental Filings . Promptly following the execution of this Agreement, the Parties shall proceed promptly to prepare and file, or cause to be prepared and filed by their respective “ultimate parent entities,” with the appropriate Governmental Entities such requests, reports or notifications as may be required in connection with this Agreement or the other Transaction Documents and shall diligently and expeditiously prosecute, and shall cooperate fully with each other in the prosecution of, such matters. Without limiting the

foregoing, promptly following the execution of this Agreement, but in any event within ten (10) Business Days following the date of this Agreement, the Parties or their respective “ultimate parent entities” shall file with the Department of Justice and the Federal Trade Commission the notifications and other information, if any, required to be filed under the HSR Act with respect to the transactions contemplated hereby and by the other Transaction Documents and shall use their respective commercially reasonable efforts to cause all applicable waiting periods under the HSR Act to expire or be terminated as of the earliest possible date. The Purchaser and the Sellers will bear equally all applicable filing fees due under the HSR Act. Each of the Sellers and the Purchaser shall, as promptly as practicable, comply with any request for additional information and documents pursuant to the HSR Act. Each of the Sellers and the Purchaser shall inform the other promptly of any communication made by or on behalf of such Party to (including permitting the other Party to review such communication in advance), or received from, the Federal Trade Commission or the Department of Justice and shall furnish to the other such information and assistance as the other may reasonably request in connection with its preparation of any filing, submission or other act that is necessary or advisable under the HSR Act. Each of the Sellers and the Purchaser shall keep each other timely apprised of the status of any communications with, and any inquiries or requests for additional information from, the Federal Trade Commission or the Department of Justice and shall comply promptly with any such inquiry or request. No Party shall agree to participate in any meeting with any Governmental Entity in respect of any filings, investigation or other inquiry unless it consults with the other Parties in advance, and to the extent permitted by such Governmental Entity, and gives the other Parties the opportunity to attend and participate thereat. The Purchaser and the Sellers agree to utilize commercially reasonably efforts to avoid or eliminate any impediment under any Antitrust Law that may be asserted by any U.S. federal, state, or local antitrust or competition authority so as to enable the Parties to expeditiously close the transactions contemplated by this Agreement and the other Transaction Documents. In addition, without limiting the generality of the foregoing regarding Governmental Entities, the Purchaser and the Sellers agree to utilize commercially reasonable efforts to attempt to vacate or lift any order or other restraint relating to Antitrust Laws that would have the effect of making the transactions contemplated by this Agreement and the other Transaction Documents illegal or otherwise prohibiting their consummation. Nothing in this Agreement shall (i) require the Purchaser to divest of any assets currently owned by it or (ii) require the Sellers to retain any portion of the Acquired Assets, in either case, in connection with obtaining the termination or early expiration of the waiting period under the HSR Act.

               (b)  Additional Agreements . Subject to the terms and conditions of this Agreement, each of the Parties will use its respective commercially reasonable efforts to take or do, or cause to be taken or done, all things necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement. If at any time after the Closing Date, any further action is necessary to carry out the purposes of this Agreement and the other Transaction Documents, the Parties shall take all such action as is commercially reasonable.

               (c)  Investigation; No Other Representations or Warranties .

               (i) The Purchaser acknowledges and agrees that it has made its own inquiry and investigation into, and, based thereon, has formed an independent judgment concerning, the Business, the Acquired Assets and the Assumed Liabilities, and the

Purchaser has been furnished with or given full access to such information about the Business, the Acquired Assets and the Assumed Liabilities as it has reasonably requested.

               (ii) In connection with the Purchaser’s investigation of the Business, the Acquired Assets and the Assumed Liabilities, the Purchaser and its representatives have received from the Sellers or their representatives certain projections and other forecasts for the Business and certain estimates, plans and budget information. The Purchaser acknowledges and agrees that (A) there are uncertainties inherent in attempting to make such projections, forecasts, estimates, plans and budgets, (B) the Purchaser is familiar with such uncertainties, (C) the Purchaser is taking full responsibility for making its own evaluations of the adequacy and accuracy of all estimates, projections, forecasts, plans and budgets so furnished to it or its representatives and (D) the Purchaser will not (and will cause each of its Subsidiaries, other Affiliates and all other Persons acting on their behalf to not) assert any claim or cause of action against the Sellers, their Subsidiaries or any of their direct or indirect directors, officers, employees, agents, stockholders, Affiliates, consultants, counsel, accountants, investment bankers or representatives with respect thereto, or hold any such other Person liable with respect thereto.

               (iii) The Purchaser agrees that, except for the representations and warranties made by the Sellers that are expressly set forth in Article V of this Agreement, neither the Sellers nor any of their respective Affiliates or representatives have made and shall not be deemed to have made to the Purchaser or to any of its representatives or Affiliates any representation or warranty of any kind. Without limiting the generality of the foregoing, and notwithstanding any otherwise express representations and warranties made by the Sellers in Article V , the Purchaser agrees that neither the Sellers nor any of their Affiliates makes or has made any representation or warranty to the Purchaser or to any of its representatives or Affiliates with respect to, nor is the Purchaser relying upon:

                    (A) any projections, forecasts, estimates, plans or budgets of future revenues, expenses or expenditures, future results of operations (or any component thereof), future cash flows (or any component thereof) or future financial condition (or any component thereof) of the Business or the future operations or affairs of the Business heretofore or hereafter delivered to or made available to the Purchaser or its counsel, accountants, advisors, lenders, representatives or Affiliates; or

                    (B) any other information, statements or documents heretofore or hereafter delivered to or made available to the Purchaser or its counsel, accountants, consultants, advisors, lenders, representatives or Affiliates with respect to the Business or the operations or affairs of the Business, except to the extent and as expressly covered by a representation and warranty made by the Sellers and contained in Article V .

               (iv) The Sellers acknowledge and agree that, except for the representations and warranties made by the Purchaser expressly contained in Article VI , neither the Purchaser nor any of its Affiliates or their respective representatives have made or shall not be construed as having made to the Sellers or any representative thereof any representation or warranty of any kind.

               (d) Additional Agreements . Each of the Sellers and the Purchaser shall, subsequent to the date of this Agreement and prior to the Closing Date, negotiate in good faith and enter into at the Closing a transition services agreement relating to certain post-Closing services to be performed by the Sellers on the terms and conditions set forth therein (the “ Transition Services Agreement ”).

     4.2 Covenants of the Sellers .

               (a)  Conduct of the Business . Prior to the Closing, unless the Purchaser otherwise consents in writing (which consent shall not be unreasonably withheld or delayed) or except as expressly contemplated by this Agreement, the Sellers shall:

               (i) use their commercially reasonable efforts to carry on the Business in the ordinary course in the same manner as presently conducted and to keep the operations supporting the Business intact, including preserving the Sellers’ present relationships with licensors, suppliers, customers and others having business relations with the Business;

               (ii) use their commercially reasonable efforts to maintain the material Scheduled Proprietary Rights relating or pertaining to the Business;

               (iii) use their commercially reasonable efforts to cause their current insurance (or reinsurance) policies not to be canceled or terminated or any of the coverage thereunder to lapse;

               (iv) maintain the material assets of the Business in good repair, order and condition (normal wear and tear excepted) consistent with current needs;

               (v) maintain the books, accounts and records of the Business in accordance with past custom and practice as used in the preparation of the Financial Statements;

       &nb