EXHIBIT 10.24
PURCHASE AGREEMENT
This PURCHASE AGREEMENT is made as of the 31st day of July, 1996 by and
among TEMPFUNDS AMERICA, INC., a Florida corporation and TEMPFUNDS AMERICA
FUNDING CORPORATION OF SOUTH CAROLINA, INC., a South Carolina corporation
(collectively "Sellers" or individually "Seller") and CAPITAL FACTORS, INC., a
Florida corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Sellers are engaged in the business of administering and financing
payroll accounts for certain temporary employment and home care agencies.
Sellers and Purchaser have entered into that certain Letter of Intent dated June
7, 1996, regarding Purchaser's interest in purchasing certain assets of Sellers
("Letter of Intent"). Purchaser has concluded its due diligence pursuant to the
Letter of Intent. Accordingly, Purchaser wishes to acquire and Sellers wish to
sell certain assets used in the business of Sellers on the terms and conditions
hereinafter set forth
NOW, THEREFORE, for good and valuable consideration, the parties hereto
agree as follows:
1. PURCHASE AND SALE: The Purchaser shall purchase and acquire from Sellers
and Sellers shall sell, transfer, assign and convey to Purchaser at Closing
(except as set forth in subparagraph (b) below) the following assets used in
connection with Sellers' business (the "Assets"):
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a. ACCRUING ASSETS. All of Sellers' interest in and under all loans,
contracts and contract rights identified in Schedule "All attached hereto and
made a part hereof and all accounts receivables owed to Sellers pursuant to such
loans, contracts and contract rights which are accruing as of the date of
Closing ("Accruing Assets"). Purchaser shall assume all of Sellers' obligations
as set forth in the loan documents and contracts evidencing the Accruing Assets
as of Closing.
b. FIXED ASSETS. Those fixed assets which are essential to the operation of
Sellers' business as deemed by Purchaser in its sole discretion ("Fixed Assets")
Any Fixed Assets not deemed to be essential shall be returned by Purchaser
within 180 days from Closing.
c. INTANGIBLE ASSETS. All of Sellers' trademarks, tradenames, patents,
copyrights, brandmarks, brandnames, service marks, customer lists, invoices,
brochures, letterhead, catalogues and telephone numbers and other similar terms
used in connection with Sellers, business, including all of Sellers' interest in
any business records and client accounting records pertaining to Sellers"
business and the name "TempFunds," together with all registrations and filings
regarding any of the foregoing as set forth in Schedule "B" (collectively, the
"Intangible Assets").
d. PREPAID EXPENSES AND PREPAID INSURANCE. Any prepaid expenses, prepaid
insurance from which Purchaser will realize the benefit of such prepayment in
connection with its acquisition of the Accruing Assets (the "Prepaid Items").
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2. EXCLUDED ASSETS. Notwithstanding the foregoing, the Assets shall not
include any of (i) Sellers' cash and cash equivalents, bank deposits and other
deposits, (ii) any loans, contracts, contract rights, receivables and related
Intangible Assets with respect to the matters identified in Schedule "A"
attached hereto and made a part hereof; (iii) all accounting records of Sellers,
although Purchaser shall be entitled to make copies of any such accounting
records, at its expense, from time to time after the Closing; and (iv) any of
Sellers' rights arising under this Agreement.
3. PURCHASE-PRICE. The purchase price shall be paid by Purchaser to Sellers
as follows:
a. A cash payment at Closing in the amount of NINE HUNDRED THOUSAND
DOLLARS ($900,000.00) in lawful money of the United States, together with an
additional cash payment at Closing in lawful money of the United States in an
amount equal to the net book value of the Accruing Assets at Closing. The net
book value of the Accruing Assets at Closing shall be the value of the Accruing
Assets as set forth on Sellers' internally prepared financial statements and as
mutually determined by Sellers and Purchaser for the date of Closing.
Notwithstanding the foregoing, Purchaser may offset against the actual
amount of cash payments to be made to Sellers at Closing, the outstanding
amounts owed to Purchaser by Sellers under that certain Loan and Security
Agreement dated December 18, 1995 and promissory note of even date therewith in
the original
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principal amount of $3,200,000.00. The outstanding principal balance owed to
Purchaser as Of July 31, 1996 is $3,200,000.00 with $26,936.52 of accrued and
unpaid interest. Such payoff shall be made without any prepayment penalty or
other charge imposed by Purchaser
b. Deferred cash payments shall be made by Purchaser to Sellers in
lawful money of the United States as follows:
(1) The sum of THREE HUNDRED FIFTY THOUSAND DOLLARS ($350,000.00)
plus interest from Closing at Purchaser's Cost of Funds as defined below,
payable on July 31, 1997, provided that there exists at least a ninety percent
(90%) Retention (as hereinafter defined) of Original Clients (as hereinafter
defined) of Sellers;
(2) The sum of THREE HUNDRED FIFTY THOUSAND DOLLARS ($350,000.00)
plus interest from Closing at Purchaser's Cost of Funds as defined below payable
on July 31, 1998, provided that there exists at least an eighty percent (80%)
Retention (as hereinafter defined) of Original Clients (as hereinafter defined)
of Sellers;
(3) The sum of TWO HUNDRED THOUSAND DOLLARS ($200,000.00) plus
interest from Closing at Purchaser's Cost of Funds payable on July 31, 1999,
provided that the annualized gross revenue received by Purchaser during the
three months immediately preceding August 1, 1999 from Factors' Related Clients
(as hereinafter defined), is One Hundred Seventy Two Percent (172%) of
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the annualized gross revenue received by sellers from Accruing Assets for the
three months immediately prior to AUGUST 1, 1996.
For purposes hereof, the percent of "Retention" shall be determined by
dividing the average balance of outstanding loans and factored accounts made by
Purchaser to Original Clients for the three months prior to August 1, 1997 and
August 1, 1998, respectively, by the balance of outstanding loans and factored
accounts by Sellers to original Clients as of July 31, 1996. The average balance
of outstanding loans and factored accounts by Purchaser to original Clients for
the referenced three month period prior to the respective August 1, 1997 and
August 1, 1998 dates shall be determined by dividing the sum of the balance of
outstanding loans and factored accounts by Purchaser to Original Clients for
each week during the three month period by the number of calendar weeks during
such three month period.
"Original Clients" shall be defined to include all current clients or
customers of Sellers as of Closing as listed on Schedule "All and the successors
and assigns of such clients or customers, plus those clients or customers listed
on Schedule "A" which constitute potential clients or customers who are being
solicited by Sellers and with whom Sellers are in substantive discussions, but
who are not listed on Schedule "All and the successors and assigns of such
clients or customers less those clients or customers listed in Schedule "A-3"
that as of the date of Closing have informed Sellers that they will not be
continuing their relationship with Sellers.
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"Factors' Related Clients" shall be defined to include (i) those clients or
customers of Sellers listed on Schedule "A"; (ii) Purchaser's clients in the
temporary employment and home healthcare industry during the three months
immediately preceding August 1, 1999; and (iii) any new clients or customers of
Purchaser that exist during the three months immediately preceding August 1,
1999 and in which sellers' former employees are instrumental in either a direct
or supervisory capacity for Purchaser being retained by such new clients.
"Purchaser's Cost of Funds" shall be defined to be equal to Purchaser's
weighted average cost of funds, (including debt and securitized funding, but not
including equity, equity equivalents, preferred stock, obligations convertible
into common stock, or obligations that were sold to investors as a unit with a
common stock equivalent) during the relevant time period, as adjusted below.
Purchaser's Cost of Funds shall be calculated on July 31, 1996 and on October
lst, January 1st, April 1st and July 1st of each calendar year. Purchaser's Cost
of Funds as determined at Closing shall be the effective interest rate through
September 30, 1996 and the effective interest rate shall be adjusted for each
subsequent quarterly period based on the October 1st, January 1st, April 1st and
July 1st calculations through July 31, 1999.
Notwithstanding anything herein to the contrary, the deferred payments to
be made on July 31, 1997 and July 31, 1998, as described above, shall be
adjusted on a prorata basis if the actual Retention percentage is less or
greater than the Retention
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percentages referenced in subparagraphs 3 (b)(1) and (2) above. For example, if
the actual Retention percentage for the deferred payment to be made on July 31,
1997 is eighty percent (80%), the Purchaser shall pay and Sellers shall receive
an amount equal to eight-ninths (8/9) of Three Hundred and Fifty Thousand
Dollars ($350,000.00). Similarly, if the actual Retention percentage is ninety
percent (90%) for the July 31, 1998 payment date, the payment would be equal
to nine-eighths (9/8) of Three Hundred Fifty Thousand Dollars ($350,000.00).
Notwithstanding anything herein to the contrary, the payments to be made on
July 31, 1999 shall be adjusted on a prorata basis if the actual annualized
gross revenues from Factors' Related Clients is less or greater than the minimum
annualized gross revenue percentage referenced in subparagraph 3(b)(3) above.
For example, if the actual annualized gross revenue received from Factors,
Related Clients is one-hundred fifty percent (150%) of the annualized gross
revenue received by Sellers from Accruing Assets for the three months
immediately prior to August 1, 1996, the payment to be made by Purchaser and
received by Seller on July 31, 1999 shall be determined by multiplying a
fraction, the numerator of which is 150 and the denominator of which is 172
times $200,000. If such actual percentage is one hundred eighty percent (180%),
then the payment would be equal to 180/172 times $200,000.00.
Notwithstanding the foregoing adjustments of the deferred payments as set
forth in the two preceding paragraphs, the total principal amount of the
deferred payments to be made on July 31,
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1997, July 31, 1998 and July 31, 1999 shall not exceed $900,000 plus interest as
set forth above.
All payments to be made by Purchaser to Sellers hereunder shall be by
same-day wire transfer to an account as directed by Sellers.
The amount of the payments to be made at Closing and on July 31, 1997, July
31, 1998 and July 31, 1999 shall be estimated based on financial information
available as of a date which is five (5) business days prior to the Closing or
the respective deferred payment date. Purchaser and Sellers shall re-calculate
the amount of the actual payments due as of the Closing and on each respective
deferred payment date no later than thirty (30) days from the date of Closing or
the respective deferred payment date. Sellers shall either refund to the
Purchaser any overpayment, or Purchaser shall pay to Sellers any remaining sums
due upon expiration of such thirty (30) day period following date of Closing or
the respective deferred payment date.
At Closing, Sellers and Purchaser shall execute a mutual estoppel statement
setting forth the calculation of Purchaser's Cost of Funds as of Closing, and no
later than thirty (30) days from the date of Closing, a mutual estoppel
statement setting forth the outstanding balance of loans and factored accounts
by Seller to Original Clients as of Closing and the annualized gross revenues
received by Sellers for the three months immediately prior to August 1, 1996.
For purposes of any mutual determination to be made by Sellers and Purchaser,
Sellers hereby agree to elect Xxx
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Xxxxxx as President of each Seller at Closing to oversee that process. In the
event that either Xxx Xxxxxx or Xxxx X. Xxxxxxxxxx are not serving as President
of each Seller and it is necessary to make a calculation under this Agreement
which is to be mutually determined, the determination shall be made by audit
performed by BDO Xxxxxxx or any other certified public accountant designated by
Purchaser, the cost of which shall be paid one-half by Sellers and one-half by
Purchaser.
4. REPRESENTATIONS AND WARRANTIES OF SELLERS. Each of the Sellers hereby
represent and warrant to Purchaser that:
a. TITLE. Sellers have good and marketable title to all of the
Assets. Sellers will convey the Assets to Purchaser free and clear of any
mortgage, pledge, lien, encumbrance or other security interest.
b. AUTHORIZATION. Sellers have by proper corporate proceedings duly
authorized the execution, delivery and performance of this Agreement and have
duly executed and delivered this Agreement. This Agreement is a legal, valid and
binding obligation of Sellers, enforceable against Sellers in accordance with
its terms. The consummation of the transactions contemplated by this Agreement
shall not conflict with any applicable federal, state or local law, rule,
regulation, writ, decree or order to which any Seller is a party and shall not
conflict with or violate any term, provision or covenant of any indenture,
contract, agreement, instrument or judgment applicable to any Seller, except
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for those consents of Sellers, lenders as set forth in Schedule "C".
c. GOVERNMENTAL ORDER. Neither Seller is subject to any order,
judgment or decree, or any other restriction of a material nature which would
prevent or hinder the transactions contemplated by this Agreement.
d. LITIGATION. There are no legal proceedings or governmental
investigations pending before any court or other governmental body or any other
tribunal, or, to the best knowledge of Sellers, threatened against or relating
to the Assets to be transferred to Purchaser hereof, the results of which, if
adversely determined, could materially or adversely affect the transactions
contemplated by this Agreement.
e. CONDUCT OF BUSINESS. Upon the date of execution of this Agreement
through Closing, Sellers will conduct their business in the usual and ordinary
course and will use their best efforts to maintain and preserve its good will
and property. Except with the prior written consent of Purchaser (which shall
not be unreasonably withheld) Sellers will not dispose of any Assets or incur
any liabilities except in the usual and ordinary course of business, nor make
any significant organizational or personnel changes.
f. STATUS OF ACCRUING ASSETS. To the best of Sellers' knowledge, the
underlying loan documents and contracts comprising the Accruing Assets
constitute valid and enforceable obligations of the clients and customers of
Sellers subject to no
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off-sets, defenses or counterclaims and Sellers have a perfected, first priority
security interest in the accounts receivable of such clients Or customers as set
forth in the loan documents and contracts and pursuant to UCC-1 filings made by
Sellers. To the best of Sellers' knowledge, all of the Accruing Assets are in
compliance with all federal, state and local laws and regulations, including all
applicable usury laws, except that Sellers have not qualified to do business in
the States Of New Jersey, Minnesota, or Indiana to the extent that such
qualification may be deemed necessary to institute enforcement proceedings with
respect to any of the Accruing Assets against a client or customer located in
New Jersey, Minnesota or Indiana.
For purposes hereof, the term "to the best of Sellers' knowledge", shall be
based upon the books and records of Sellers and any verbal communications
received by the principal officers of Sellers from any outside third party or
employee of Sellers.
5. PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser hereby
represents and warrants to Sellers that all necessary and appropriate action has
been taken by Purchaser with respect to the execution and delivery of this
Agreement and the performance by Purchaser of its obligations hereunder, that
this Agreement has been duly authorized, executed and delivered by Purchaser and
that this Agreement constitutes the valid and binding obligation of Purchaser in
accordance with its terms and the consummation of the transactions contemplated
by this Agreement shall not conflict with any applicable, federal, state or
local
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law, rule, regulation, writ, decree or order to which any Purchaser is a party
and shall not conflict with or violate any term, provision or covenant of any
indenture, contract, agreement, instrument or judgment applicable to Purchaser.
6. CONDITIONS TO OBLIGATION OF PURCHASER TO CLOSE. The obligations to be
performed by Purchaser under this Agreement prior to and at Closing, and (except
for those obligations set forth in Section 9 below) shall be subject to the
satisfaction at or prior to Closing of the following conditions:
a. REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Sellers shall have been true and correct in all material respects when
made, and shall be true and correct in all material respects at and as of
Closing as though such representations and warranties were made on and as of
such date.
b. PERFORMANCE OF AGREEMENT. All covenants, conditions and other
obligations under this Agreement which are to be performed or complied with by
the Sellers, at or prior to the Closing shall have been fully performed and
complied with.
c. NO ADVERSE PROCEEDINGS. No suit or proceeding shall have been
commenced by any party seeking to enjoin or prohibit the consummation of the
transactions contemplated hereby, which suit or proceeding shall not have been
successfully defended or dismissed with prejudice as of the Closing date.
d. DISSENTERS' RIGHTS. Holders of no more than five percent (5%) of
the validly issued, fully assessed and
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outstanding shares of common stock of Sellers shall have elected to exercise
dissenters, rights with respect to the transaction contemplated by this
Agreement.
e. NO MATERIAL ADVERSE CHANGE. There shall have been no material
adverse changes in the operations or financial condition of Sellers since the
execution of this Agreement, including, without limitation thereto, with respect
to the portfolio comprising Accruing Assets or the appropriate level of reserved
deposits held with respect to such Accruing Assets.
f. DELIVERY OF CERTAIN ITEMS. The Sellers shall have delivered
to Purchaser the following items:
(1) An Assignment and Assumption Agreement in form acceptable to
Purchaser and Sellers;
(2) Delivery of all promissory notes, if any, constituting the
Accruing Assets endorsed to the order of Purchaser without recourse;
(3) UCC-3 Financing Statements assigning Sellers' UCC-1 Financing
Statements in the receivables comprising the Accruing Assets to Purchaser;
(4) originals of each of the contracts and loan documents
underlying the Accruing Assets which shall be delivered to Purchaser's
representative in the State of North Carolina.
(5) A Xxxx of Sale and Assignment conveying Sellers' interests in
the Fixed Assets and Intangible Assets in form acceptable to Purchaser and
Sellers, a separate federal
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assignment regarding the matters set forth in Schedule "B", and a separate
assignment of Sellers' lock-box account at First Union National Bank in
Charlotte, North Carolina.
(6) The mutual estoppel statement described in Section 3(b).
(7) An opinion from Sellers' counsel opining as to the following
matters:
(a) authorization of the Sellers to execute this Agreement and
to complete the transactions contemplated thereunder (the "Transaction");
(b) validity and enforceability of this Agreement and all
other documents to be executed by Sellers in connection with the Transaction;
(c) good standing and qualification of Sellers in the states
of Florida and South Carolina;
(d) reasoned usury opinion regarding the choice of law
provisions set forth in the underlying documents and contracts comprising the
Accruing Assets.
g. MATTERS REGARDING SELLERS' AFFILIATES. The Purchaser shall have
satisfied itself as to matters regarding those affiliates and subsidiaries of
the Sellers who now own or previously owned any of the Accruing Assets,
including, without limitation, TFA Funding, Inc. and Genesis TFA Funding, Inc.
In addition, Purchaser shall have satisfied itself as to the title to those
Accruing Assets now or previously owned by such affiliates or subsidiaries and
any prior or contemplated assignment of any of
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such Accruing Assets and UCC-1 Financing Statements from such affiliates or
subsidiaries of Sellers. If requested by Purchaser, such parties shall be added
as parties to this Agreement by addendum to enable Purchaser to take direct
assignments and transfers of any of such Accruing Assets from such affiliates or
subsidiaries.
7. CONDITIONS TO OBLIGATION OF SELLERS TO CLOSE. The obligations of the
Sellers to be performed under this Agreement prior to and at Closing shall be
subject to satisfaction at or prior to Closing of the following conditions:
a. REPRESENTATIONS AND WARRANTIES. Purchaser's representations
and warranties set forth in this Agreement shall have been true and correct in
all material respects when made, and shall be true and correct in all material
respects at and as of the Closing as though such representations and warranties
were made on and as of such date.
b. PERFORMANCE OF AGREEMENT. All covenants, conditions and other
obligations of this Agreement which are to be performed or complied with by
Purchaser, at or prior to Closing shall have been fully performed and complied
with.
c. DELIVERY OF CERTAIN ITEMS. Purchaser shall deliver to the Sellers
the Purchase Price in accordance with Paragraph 3 of this Agreement, and the
documents reflected in subparagraph 6(f)(1) and (5).
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d. LENDER CONSENTS AND ESTOPPELS. Consents and estoppels from
Sellers, lenders identified in schedule "C" in form satisfactory to Sellers and
Purchaser.
e. OPINION OF COUNSEL. Opinion of Purchaser's counsel opining as to
the following matters:
(1) authorization of the Purchaser to execute this Agreement and
to complete the Transaction contemplated hereunder;
(2) validity and enforceability of this Agreement and all of the
documents to be executed by Sellers in connection with the Transaction;
(3) good standing and qualification of Purchaser.
8. CLOSING. The closing of the transactions contemplated by this
Agreement ("Closing") shall occur at such place and time as the parties may
agree, provided, however, that the Closing shall have occurred by 5:00 p.m.
eastern daylight time, on August 9, 1996. The term "Closing" as used in this
Agreement shall also refer to the date of Closing. TIME IS OF THE ESSENCE TO
THIS AGREEMENT. Each party shall bear his own expenses in connection with the
transaction contemplated by this agreement, provided that purchaser shall bear
the cost of recording or filing any document to be delivered by sellers to
purchaser at closing.
9. CONFIDENTIALITY. All information furnished by Sellers to Purchaser
under this Agreement shall be treated as confidential and Purchaser shall take
normal and reasonable
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precautions to preserve the confidentiality of such information until the
Closing of this Agreement and, if this Agreement is terminated, Purchaser shall
return to Sellers all documents and other materials containing, reflecting or
referring to such information. Purchaser's obligation hereunder shall not apply
to any information which (i) was already in its possession prior to the
disclosure thereof by Sellers, (ii) was already in its possession prior to the
disclosure thereof by Sellers and as may hereafter be disclosed and required by
Purchaser to be disclosed in connection with that certain Loan and Security
Agreement entered into between Sellers and Purchaser dated December 18, 1995 as
same may be modified, extended or amended from time to time and that certain
Loan and Security Agreement entered into between TFA Funding, Inc. and Purchaser
dated December 18, 1995 as same may be modified, extended or amended from time
to time including any other loan documentation and guaranties executed in
connection with either of said loans, (iii) was then generally known to the
public (iv) became known to the public through no fault of Purchaser or any of
its agents or representatives, (v) was disclosed to Purchaser by a third party
unaffiliated with Purchaser who was not bound by an obligation of
confidentiality to Sellers. Notwithstanding the foregoing, Purchaser may
disclose such information as Purchaser, its underwriters and/or its outside
counsel may deem appropriate or necessary to disclose in connection with
applicable law including Purchaser's Registration Statement filed with the
Securities and Exchange commission as same may be
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amended, from time to time and any notice or application to any regulatory
authority which Purchaser may make regarding the acquisition, subject to advance
notification to Sellers. The terms and provisions of paragraph 2 of that certain
letter dated April 24, 1996 by and between Sellers and Purchaser shall continue
in full force and effect in the event the Closing does not occur.
10. BROKERAGE. Sellers and Purchaser hereby represent and warrant to each
other that there are no brokerage commissions, finders fees or other like
payments due any party in connection with the transaction contemplated by this
Agreement, as a result of any action taken by Sellers or by Purchaser, except
that Sellers have engaged Westwood Capital, LLC ("Westwood") to act as Sellers
exclusive financial advisor and exclusive agent in connection with the
transaction contemplated by this Agreement, and Sellers shall hold Purchaser
harmless from and against any claim, fee, or expense asserted by Westwood
against Purchaser in connection with the consummation of the transaction
contemplated by this Agreement.
11. EMPLOYEES OF SELLERS. Purchaser shall be free to determine which, if
any, personnel of Sellers it would desire to retain and which key personnel it
would elect to offer employment contracts to, and Sellers shall cooperate with
Purchaser in implementing Purchaser's decisions regarding such retention and
hiring. Notwithstanding the foregoing, it is understood and agreed that
Purchaser's and Sellers, obligations to consummate the transactions contemplated
under this Agreement are expressly
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conditioned upon Purchaser reaching a satisfactory written employment agreement
with Xxxxxx Xxxxxxxxxxxx. Effective as of the Closing, Xxxxxx Xxxxxxxxxxxx
shall resign as President of each Seller.
12. INDEMNIFICATION REGARDING EXCLUDED ASSETS:
a. OBLIGATION TO INDEMNIFY. The Sellers hereby jointly and severally
indemnify and hold harmless the Purchaser, and its officers and directors from
and against any and all losses, damages, deficiencies, settlements, assessments,
charges, costs and expenses (including without limitation, reasonable attorneys'
fees, paralegals' fees, investigation expenses, court costs, interest and
penalties) arising out of or in connection with, or caused by, directly or
indirectly, any litigation, pending or threatened, regarding any of the Excluded
Assets (the "Proceeding").
b. DEFENSE OF ACTIONS. The Sellers shall be solely responsible, at
its expense, for litigating, defending or otherwise attempting to resolve any
Proceeding against which the Purchaser is indemnified under this provision,
except that: (i) the Purchaser shall have the right to participate in the
defense of any such Proceeding at the Purchaser's expense and through counsel of
the Purchaser's choice; and (ii) the Sellers shall not agree to any settlement
without the Purchaser's express prior written consent which shall not be
unreasonably withheld.
c. NOTICES AND PAYMENTS. With respect to each separate matter or
series of matters against which the Purchaser is indemnified hereunder:
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(1) Upon the Purchaser's receipt of written documents pertaining
to the Proceeding underlying such matter or series of matters, or, if such
matter or series of matters does not involve a third party demand claim, after
the Purchaser's first learning of such matter or series of matters and the
amount demanded or claimed in connection therewith, the Purchaser shall give
notice to the Sellers of such documents and information as it shall have so
received.
(2) After a final agreement is reached or a final judgment is
rendered with respect to such matter or series of matters or the amount owing by
the Sellers pursuant to this provision as a result of such matter or series of
matters, is otherwise determinable in whole or in part, the Purchaser shall give
notice to the Sellers of the amount owing by the Sellers ("Indemnification
Amount") with respect to such matter or series of matters ("Indemnification
Payment Notice") and the Sellers shall make payment of the indemnification
Amount within five (5) days of the receipt of the Indemnification Payment
Notice.
d. OTHER RIGHTS AND REMEDIES NOT AFFECTED. The indemnification
rights of the Purchaser under this provision are independent of and in addition
to such rights and remedies as the Purchaser may have at law or in equity or
otherwise for any misrepresentations, breach of warranty or failure to fulfill
any agreement or covenant hereunder on the part of any party hereto.
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13. MISCELLANEOUS PROVISIONS.
a. NOTICES. All notices, requests, demands and other communications
required or permitted under this Agreement shall be deemed to have been duly
given and made if in writing and served either by personal delivery or to the
party for whom it is intended or by being deposited, postage prepaid, certified
or registered mail, return receipt requested (or such form of mail as may be
substituted therefore by postal authorities), in the United States mail, bearing
the address shown in this Agreement for, or such other address as may be
designated in writing hereafter by such party:
If to any Seller:
TempFunds America, Inc.
TempFunds America Funding Corporation of South Carolina, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxxxx
With Copy to:
Xxxxx X. Xxxx, Esquire
Xxxxx & Xxxxxxxxx
000 Xxxxx Xxxxxx Xxxxxx
SunTrust Center, Ste. 2300
Xxxxxxx, Xxxxxxx 00000
If to Purchaser:
Capital Factors, Inc.
Capital Square Building
0000 Xxxx Xxxxxxx Xxxx Xxxx.
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
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With Copy to:
Xxxxxxx X. Xxxxxx, Esq.
Sr. Vice President
Capital Square Building
0000 Xxxx Xxxxxxx Xxxx Xxxx.
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Each party shall immediately notify the other party of any change of address.
b. ENTIRE AGREEMENT. This Agreement and the exhibits and schedules
referred to herein embody the entire agreement and understanding of the parties
hereto with respect to the subject matter hereof, and supersede all prior and
contemporaneous agreements and understanding with respect thereto, including the
Letter of Intent.
c. BINDING EFFECT; ASSIGNMENT. This Agreement and the various rights
and obligations arising hereunder shall inure to the benefit of and be binding
upon Purchaser, its legal representatives, successors and permitted assign, and
each Seller, its respective legal representative, successor and permitted
assigns. Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be transferred or assigned (by operation of law or otherwise) by
any of the parties hereto without the prior written consent of other party or
parties (which consent shall not be unreasonably withheld or delayed) except
that Purchaser may assign this Agreement and any of the rights, interests or
obligations hereunder to a subsidiary of the Purchaser or subsidiary of
Purchaser's parent or affiliate so long as Purchaser continues to be primarily
obligated for the obligations
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of the purchaser under this Agreement, including those obligations which survive
Closing.
d. NO THIRD PARTY BENEFICIARY. Subject to the preceding paragraph,
nothing herein, express or implied, is intended or shall be construed to confer
upon or give to any person, firm, corporation or legal entity, other than the
parties hereto, any rights, remedies or other benefits under or by reason of
this Agreement.
e. COUNTERPARTS. This Agreement may be executed simultaneously in
identical counterparts, each of which shall be deemed an original but all of
which taken together shall constitute one and the same instrument.
f. CAPTIONS. The section headings and other captions in this
Agreement and the exhibits hereto are inserted for convenience only and shall
not constitute a part of this Agreement in construing or interpreting any
provision hereof.
g. WAIVER; CONSENT. This Agreement may not be changed, amended,
terminated, augmented, rescinded or discharged (other than in accordance with
its terms), in whole or in part, except by writing executed by the parties
hereto, and no waiver of any of the provisions or conditions of this Agreement
or any of the rights of a party hereto shall be effective or binding unless such
waiver shall be in writing and signed by the party claiming to have given or
consented thereto. Except to the extent that a party hereto may otherwise agree
in writing, no waiver by that party of any condition of this Agreement, or
breach by the other party of
23
any of his or its obligations or representations hereunder shall be deemed to be
a waiver of any other condition or subsequent breach of the same or any other
obligation or representation by the other party or parties, nor shall any
forbearance by the first party or parties to seek a remedy for any noncompliance
or breach by the other party be deemed to be a waiver by the first party or
parties of his, its or their rights and remedies with respect to such
noncompliance or breach.
h. OTHER AND FURTHER COVENANTS. The parties shall, in good faith,
execute such other and further instruments, assignments or documents as may be
necessary for the consummation of the transactions contemplated by this
Agreement. Without limiting the generality of the foregoing, each party hereto
shall assist and cooperate with each and every other party in connection with
these activities. During the period from the date of this Agreement to the
Closing, Sellers shall afford Purchaser's representatives free access to
Sellers, offices, records, files and books of account, and shall allow the
Purchaser and its representatives to make copies of the same at Purchaser's
expense, provided that Purchaser's review and use of any such items shall not
unreasonably interfere with Sellers' normal operations. In addition, the
officers and employees of Sellers shall be available to meet with' the Purchaser
and its representatives during such period, and to provide information to
Purchaser and its representatives.
24
i. GOVERNING LAW. This Agreement shall in all respects be construed
in accordance with and governed by the laws of the State of Florida.
j. ATTORNEY'S FEES. In the event of any litigation arising out of the
transactions contemplated herein, the cost of litigation and reasonable
attorney's fees or paralegals fees of the prevailing party (whether or not suit
be brought, incurred at or before trial, on appeal or in bankruptcy) shall be
paid by the losing party.
k. SURVIVAL. The representations and warranties of Sellers and
Purchaser shall survive the Closing for a period of three (3) years.
1. SCHEDULES "A" THROUGH "A-3". Schedule "A" has been prepared on an
unaudited basis as of July 26, 1996. Schedules "A-1" through "A-3" have been
prepared as of July 31, 1996 and shall be updated through Closing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
Signed, sealed and delivered TEMPFUNDS AMERICA, INC.
in the presence of:
/s/ XXXXXX XXXXXXX BY: /s/ D. XXXXXX XXXXXXXXXXXX
---------------------------- ---------------------------
/s/ XXXXX XXXXXXX Title: President
---------------------------- ------------------------
00
XXXXXXXXX XXXXXXX XXXXXXX
XXXXXXXXXXX XX XXXXX XXXXXXXX, INC.
/s/ XXXXXX XXXXXXX By: /s/ XXXXXX XXXXXXXXXXXX
--------------------------- ----------------------------
/s/ XXXX XXXXXXXXX Title: President
--------------------------- -------------------------
CAPITAL FACTORS, INC.
/s/ XXXXXXX XXXXXX BY: /s/ XXXX X. XXXXXX
-------------------------- ----------------------------
/s/ XXXXXX X. XXXXXX Title: President
-------------------------- ------------------------
26
ADDENDUM TO PURCHASE AGREEMENT
This Addendum to Purchase Agreement is entered into as of this 31st day of
July, 1996, by and among TEMPFUNDS AMERICA, INC., a Florida corporation and
TEMPFUNDS AMERICA FUNDING CORPORATION OF SOUTH CAROLINA, INC., a South Carolina
corporation ("Sellers") and CAPITAL FACTORS, INC., a Florida corporation
("Purchaser").
WITNESSETH:
WHEREAS, Sellers and Purchaser entered into that certain Purchase Agreement
(the "Agreement") dated July 31, 1996; and
WHEREAS, Sellers and Purchaser desire to add this addendum to the
Agreement.
NOW, THEREFORE, Sellers and Purchaser, for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by all parties, do
hereby agree to amend and modify the Agreement as set forth herein.
1. A paragraph 14 is added to the Agreement as follows:
14. ALLOCATION OF LITIGATION, COSTS, DAMAGES OR OFFSETS/PURCHASER RIGHT OF
OFFSET.
(a) Sellers and Purchaser hereby agree that in the event that Purchaser
initiates a collection or enforcement action against a customer or client with
respect to the Accruing Assets ("Purchaser Action") and the customer or client
raises a counterclaim or defense to the Purchaser Action, or in the event that a
customer or client with respect to such Accruing Assets initiates an action
against Purchaser or Purchaser and Sellers seeking damages or seeking to limit
such client or customer's liability with respect to the Accruing Assets, or
challenges the enforceability or collectibility of such Accruing Assets
("Customer Action"), the parties shall allocate the legal fees, costs and any
damages or offsets thereof as follows:
(1) In the event that a court of competent jurisdiction renders a
final non-appealable judgment ("Final Ruling"), pursuant to which such court
has determined that Sellers and Purchaser have no liability with respect to such
Customer Action, or such customer has no right of offset by virtue of such
defense or counterclaim in connection with a Purchaser Action, then Sellers and
Purchaser shall each bear their respective costs and attorneys' fees.
1
(2) In the event that the court determines that one-hundred percent
(100%) of the damages or offset as set forth in the Final Ruling is allocated
against either Sellers or Purchaser, the responsible party shall bear all costs
and attorneys' fees of both Sellers and Purchaser in connection with the
prosecution of the Purchaser Action or the defense of such counterclaim or
defense raised by such customer or client.
(3) In the event that the court allocates responsibility between
Sellers and Purchaser for the damages or offset set forth in the Final Ruling,
the total attorneys' fees and costs of Sellers and Purchaser and the amount of
such damages or offset shall be allocated in accordance with such allocation
determined by the court. For example, if the court determines that Sellers are
forty percent (40%) responsible for such damages or offset and Purchaser is
sixty percent (60%) responsible for such liability or offset, and the total
attorneys' fees of Sellers and Purchaser are $100,000.00, evidencing the sum of
Sellers' attorneys' fees of $25,000.00 and Purchaser's attorneys' fees of
$75,000.00, Sellers shall pay to Purchaser $15,000.00 in reimbursement of
Purchaser's attorneys, fees and costs.
(4) Reference to customer or client with respect to any Accruing
Asset shall be deemed to include any guarantor of the obligations of such client
or customer.
(b) For purposes of implementing the foregoing allocations and to secure
Sellers, performance of its obligations hereunder, the parties further agree as
follows:
(1) Sellers agree to submit to jurisdiction in any court, federal or
state, in which the Purchaser Action is commenced or the Customer Action is
commenced.
(2) The parties shall seek to obtain the court's determination of
allocation of responsibility for damages or offset set forth in the Final Ruling
within the Purchaser Action or Customer Action and not by separate judicial
proceeding. If the court will not render a determination regarding allocation of
responsibility, Purchaser and Sellers shall submit the allocation of
responsibility for damages or offset as set forth in the Final Ruling to
arbitration in accordance with the American Arbitration Association Rules, such
arbitration to be held in Broward County, State of Florida or Mecklenburg
County, State of North Carolina, as determined by Purchaser.
(3) Purchaser shall have the right to offset any sums due and owing
to it from Sellers for attorneys' fees and costs hereunder, as well as the
amount of any damages or offset set forth
2
in the Final Ruling to the extent of the allocation of Sellers' responsibility
determined by the court or pursuant to the proceeding against the
sums due and owing to Sellers under subparagraphs 3(b)(1)(2) or (3) of the
Agreement.
(4) Sellers and Purchaser agree to seek to impose upon the customer
or client in any Purchaser Action or Customer Action an award of the attorneys,
fees of Sellers and Purchaser incurred in connection therewith and any such sums
recovered by Sellers or Purchaser shall reduce the aggregate legal fees and
costs of Sellers and Purchaser to be allocated between Sellers and Purchaser as
set forth in subparagraph, (a)(3), above.
(5) The right of offset referenced in subparagraph (b)(3) above
shall be independent of and in addition to any other rights and remedies that
Purchaser may have at law or in equity under the Agreement; provided, however,
that any sums recoverable by Purchaser pursuant to any such additional right or
remedy shall be reduced by the amount of any offset by Purchaser under this
paragraph 14.
2. Except as modified hereby, the Agreement shall remain in full
force and effect.
3. This Addendum may be executed in any one or more counterparts,
each of which shall be deemed to constitute an original of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Addendum to Purchase
Agreement as of the day and year first above written.
Signed, sealed and delivered TEMPFUNDS AMERICA, INC.
in the presence of:
/s/ XXXXXX XXXXXXX BY: /s/ D. XXXXXX XXXXXXXXXXXX
------------------------------- --------------------------
/s/ XXXX XXXXXXXXX Title: President
------------------------------- ----------------------
TEMPFUNDS AMERICA FUNDING
CORPORATION OF SOUTH CAROLINA,
INC.
/s/ XXXXXXX XXXXXX By: /s/ XXXX X. XXXXXX
------------------------------ -------------------------
/s/ XXXXXX X. XXXXXX Title: President
------------------------------ -----------------------
3
CAPITAL FACTORS, INC.
/s/ XXXXXX XXXX BY: /s/ XXXXXX X. XXXXXXXXX
----------------------------- --------------------------
/s/ XXXXXXXXX XXXXXXXX Title: Senior Vice President
----------------------------- ----------------------
4
