EXHIBIT 10.1
TRANSFER AGREEMENT
THIS TRANSFER AGREEMENT (the "Agreement") is entered into as of September
26, 1997 (the "Effective Date"), by and between ATS Telephone & Data Systems,
Inc., a Tennessee corporation ("ATS"), and TechForce Corporation, a Georgia
corporation ("Seller").
BACKGROUND
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Seller owns or leases certain equipment and assets which are used by Seller
to fulfill its obligations to Federal Express Corporation ("Fed-Ex") under that
certain Services Agreement, dated November 1, 1994, by and between Seller and
Fed-Ex, which obligations involve the service and repair of certain equipment
owned or leased by Fed-Ex (the service and repair activities performed by Seller
are referred to herein as the "Fed-Ex Repair Business").
ATS desires to purchase certain of the assets related to the Fed-Ex Repair
Business from Seller and Seller desires to sell certain assets to ATS as
provided herein.
The parties agree as follows:
1. Transfer. Seller hereby sells, assigns and transfers to ATS all of its
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right, title and interest in and to the following assets used or usable in
connection with the Fed-Ex Repair Business:
(a) Equipment and other Tangible Property. All of the equipment, supplies
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and other tangible personal property owned by Seller being used in the operation
of the Fed-Ex Repair Business listed on Schedule 1(a)(1) under the section
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entitled "To be retained by ATS" (the "Support Equipment").
(b) Personal Property Leases. All leasehold interests in the vehicle
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leased by Seller under that certain Vehicle Lease Service Agreement by and
between Seller and Penske Truck Leasing Co. and the other leasehold interests in
personal property used by Seller in the operation of the Fed-Ex Repair Business
(the "Personal Property Leases") and listed or described on Schedule 1(b).
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2. Transfer Fee.
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(a) Cash Payment. ATS shall pay Seller the sum of Fifteen Thousand One
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Hundred Twenty-Five and No/100 Dollars ($15,125.00) in cash or by bank check in
four equal monthly installments beginning on the Effective Date and continuing
on the first (1st) day of each calendar month after the Effective Date.
(b) Revenue Share Payment. For each month commencing with the month
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immediately following the Effective Date, ATS shall also pay to Seller an amount
(the "Revenue Share Payment") equal to a certain percentage (the "Applicable
Percentage Share") of the gross revenues derived from and attributable to the
Fed-Ex Repair Business and any other services performed by ATS during the term
of this Agreement for third parties referred to ATS by TechForce (the "Gross
Revenue Amount") as computed in accordance with Schedule 2(b). The Applicable
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Percentage Share used to calculate the Revenue Share Payment shall be as set
forth on Schedule 2(b) and the Revenue Share Payment shall be due and payable on
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the fifth (5th) business day of the calendar month immediately following the
month in which the Gross Revenue Amount was earned.
(c) Referral Obligation. In addition to its other obligations hereunder,
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Seller agrees during the term of the Agreement to refer to ATS third parties who
contact Seller desiring to procure services substantially similar to the
services to be performed by ATS for Fed-Ex at the time that this Agreement is
consummated. The foregoing obligation shall only apply if Seller chooses not to
provide the services on behalf of or to such third party itself and instead
elects to refer such third party to an independent service provider. Seller
shall not be liable to ATS if such third party refuses to use ATS or elects to
use another service provider to satisfy such third party's requirements.
3. Assumption of Liabilities and Related Matters.
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(a) Executory Obligations to be Assumed by ATS. In addition to the
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Transfer Fee, ATS agrees to assume and to pay and/or perform, in accordance with
their respective terms and from and after the Effective Date, (a) sales taxes
and period expenses for periods from and after the Effective Date; and (b) the
executory obligations or commitments of Seller (but only to the extent such
obligations or commitments relate to a time after the Effective Date) under the
Personal Property Leases.
(b) Indemnification. ATS and Seller further acknowledge and agree that ATS
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is purchasing the Support Equipment from Seller for its use in providing the
support services described herein to Fed-Ex and certain other customers of
Seller. As a further inducement to Seller, ATS agrees to indemnify Seller with
respect to, and hold Seller harmless from any liability, costs, expenses or
attorneys' fees relating to or arising out of the provision of such support
services to Seller's customers including, but not limited to, tort and contract
claims brought by such customers for services performed by ATS from and after
the Effective Date. Seller agrees to indemnify and hold harmless ATS from any
liability relating to or arising out of the provision of support services to
Seller's customers prior to the Effective Date.
(c) No Other Liabilities to be Assumed. Other than as set forth in Section
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3(a), ATS shall not assume, and nothing contained in this Agreement shall be
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construed as an assumption by ATS of, any liabilities, obligations, expenses or
undertakings of Seller of any nature whatsoever, whether fixed or contingent,
known or unknown.
4. Representations and Warranties of Seller.
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Except as set forth in the disclosure letter attached hereto from Seller to
ATS (the "Disclosure Letter"), Seller represents and warrants on the Effective
Date that:
(a) Organization and Standing. Seller is a corporation duly organized,
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validly existing and in good standing under the laws of the State of Georgia,
and has all requisite power and authority to enter into this Agreement and to
consummate the transactions contemplated by this Agreement.
(b) Corporate Authorization and No Conflict. The execution and delivery of
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this Agreement and any other documents contemplated by this Agreement and the
Disclosure Letter furnished in connection herewith by or on behalf of Seller,
and the consummation of the transactions contemplated herein or therein, have
been duly authorized by all necessary corporate action on the part of Seller,
and to the best knowledge of Seller, such execution, delivery and consummation
of the transactions contemplated hereunder and thereunder shall not result in
any violation or breach of any contract, trust, document or instrument to which
Seller is a party or by which any of its property is bound. This Agreement has
been duly executed by Seller and is the valid and legally binding obligation of
Seller enforceable against it in accordance with its respective terms, except as
limited by the exercise of judicial discretion, bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
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generally the enforcement of creditors' rights, and except as the remedy of
specific performance may be unavailable in certain cases.
(c) Approvals. No approval, authorization, order, license or consent of or
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registration, qualification or filing with any governmental authority and no
approval or consent by any other person or entity is required in connection with
the execution, delivery or performance by Seller of this Agreement and the other
agreements contemplated hereby.
(d) No Liens or Encumbrances. Except as set forth in the Disclosure
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Letter, Seller has good and marketable title to all of the Support Equipment,
free from any and all claims, liens, pledges, mortgages, security interests,
charges, options, defaults, restrictions or encumbrances of any nature
whatsoever. Seller has obtained all permissions and consents necessary for the
transfer and assignment of the Support Equipment to ATS, and ATS is not and
shall not become liable for any payment to any third party as a result of any
such transfer and assignment.
(e) Condition of Tangible Support Equipment. All of the tangible Support
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Equipment listed on Schedule 1(a)(1) is currently in good order and repair,
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normal wear and tear excepted. EXCEPT AS SET FORTH HEREIN, SELLER MAKES NO
WARRANTIES OR REPRESENTATIONS AS TO THE SUPPORT EQUIPMENT, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE AND THE SUPPORT EQUIPMENT IS TRANSFERRED TO ATS "AS IS" AND
WHERE IS.
5. Representations and Warranties of ATS.
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ATS hereby represents and warrants to Seller on the Effective Date as
follows:
(a) Organization and Standing. ATS is a corporation duly organized,
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validly existing and in good standing under the laws of the State of Tennessee,
and has all requisite power and authority to enter into this Agreement and to
consummate the transactions contemplated by this Agreement.
(b) Corporate Authorization and No Conflict. The execution and delivery of
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this Agreement on behalf of ATS, and the consummation of the transactions
contemplated hereunder have been duly authorized by all necessary corporate
action on the part of ATS, and, to the best of ATS's knowledge, such execution,
delivery and consummation of the transactions contemplated hereunder and
thereunder will not result in a violation or breach of any document or
instrument to which ATS is a party or by which any of its property is bound.
This Agreement has been duly executed by ATS and is the valid and legally
binding obligation of ATS enforceable against it in accordance with its terms,
except as limited by the exercise of judicial discretion, bankruptcy,
insolvency, reorganization, moratorium or similar law relating to or affecting
generally the enforcement of creditors' rights, and except as the remedy of
specific performance may be unavailable in certain cases.
(c) Approvals. No approval, authorization, order, license or consent of or
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registration, qualification or filing with any governmental authority and no
approval or consent by any other person or entity is required in connection with
the execution, delivery or performance by ATS of this Agreement and the
agreements contemplated hereby.
6. Additional Covenants.
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(a) Prorations. All personal property taxes on the Support Equipment, all
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payments in lieu of taxes on the Support Equipment and other taxes applicable
thereto, if any, and payments under leases
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and licenses included in the Support Equipment and all utility and other period
charges shall be pro rated between Seller and ATS as of the Effective Date.
(b) Request for Consent to Assignments. Seller agrees to request that the
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parties to the Personal Property Leases consent to the assignment of the right,
title and interest of Seller under such agreements to ATS. ATS agrees that the
receipt of such consents is not a condition to its obligations under this
Agreement, that the failure to obtain such consents is not a breach of any
representation, warranty or obligation of Seller under this Agreement and that
ATS may have to negotiate new agreements with any such parties at the discretion
of such parties.
(c) Employees of the Fed-Ex Repair Business. ATS shall offer employment to
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certain current employees of Seller set forth on Schedule 6(c) on terms and
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conditions as are comparable to ATS's general employment and hiring policies and
procedures. Seller shall remain solely responsible for all salaries, wages,
benefits, severance arrangements and all other terms of employment for each such
person who may become an employee of ATS accruing prior to the Effective Date.
(d) Accounts Receivable. ATS shall promptly remit to Seller any and all
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accounts receivables which may be received by ATS from Fed-Ex after the
Effective Date which had accrued on or prior to the Effective Date.
7. Term. The term of this Agreement shall commence on the Effective Date
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and shall terminate on the last day of the eighteenth (18th) calendar month
after the Effective Date.
8. Arbitration. The parties hereto agree that all disputes, claims or
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causes of action arising out of or relating to this Agreement, or the validity,
interpretation, breach, violation, or termination thereof shall be finally and
solely determined and settled by arbitration to be conducted in Memphis,
Tennessee in accordance with the Commercial Arbitration Rules of the American
Arbitration Association ("AAA") in effect on the Effective Date. Arbitration
may not be demanded after the date on which the institution of legal or
equitable proceedings based on the controversy or claim would be barred by the
applicable statute of limitation. If the terms and conditions of this Agreement
are inconsistent with the Commercial Arbitration Rules of the AAA, the terms and
conditions of this Agreement shall control. The prevailing party in any
arbitration arising out of this Agreement shall be reimbursed for all reasonable
costs and expenses incurred in such proceeding, including reasonable attorneys'
fees.
9. Miscellaneous.
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(a) Binding Effect. This Agreement shall be binding upon and inure to the
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benefit of and be enforceable against the parties hereto and their respective
successors and permitted assigns.
(b) Notices. All notices shall be in writing and shall be deemed validly
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given, made and served when delivered or faxed as follows:
If to Seller: Xxxxxx X. Xxx
TechForce Corporation
00000 Xxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
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If to ATS: ATS Telephone & Data Systems, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 0
Xxxxxxx, XX 00000
Attn.: Xxxxx Xxxxxxx, President
Fax No.: (000) 000-0000
(c) Entire Agreement. This Agreement constitutes the entire agreement
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between the parties relating to the purchase and sale of the Support Equipment
and supersedes in all respects any and all prior oral or written agreements or
understandings. This Agreement shall be amended or modified only by written
instrument signed by both parties.
(d) Expenses. Except to the extent otherwise provided in this Agreement,
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each party shall pay for its own legal, accounting and other similar expenses
incurred in connection with the transactions contemplated by this Agreement,
whether or not such transactions are consummated.
(e) Publicity. The timing and content of all public announcements relating
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to the execution of this Agreement shall be approved by both ATS and Seller
prior to the release of such public announcement, and each party agrees to
cooperate with the other party as appropriate to comply with all applicable
laws.
(f) Assignment. This Agreement may not be assigned by either party hereto
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without the prior written consent of the other party other than to any
successors, subsidiary parent corporation of a party; provided, however, that
the assignor shall remain bound under all of its obligations under this
Agreement. The rights, privileges and obligations of each party hereto shall
inure to the benefit of and be binding on the permitted assigns of such party.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized representatives as of the date set forth in
the first paragraph.
ATS TELEPHONE & DATA SYSTEMS, INC.
By: Original Signed
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Title:
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TECHFORCE CORPORATION
By: Original Signed
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Title:
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Schedules 1,2, and 6
Available Upon Request
