Exhibit 10.3
FORBEARANCE AGREEMENT
This Second Forbearance Agreement (the "Agreement") is made and entered
into effective as of the 5th day of October, 2004, by and between Presidion
Solutions, Inc. (formerly known as Affinity Business Services, Inc.) ("PSI"),
and ABS IV, Inc (formerly known as Amfinity Business Solutions, Inc.), Paradyme,
Inc. (formerly known as Amfinity H.R. Solutions, Inc.), and Paradyme National
Insurance Brokers, Inc., (together, the "Paradyme Parties"). Presidion
Corporation ("Presidion"), ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇ (together the "Guarantors", and together with the Paradyme Parties
and Presidion, the "Presidion Parties"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ (together, the "Lenders").
WHEREAS, PSI as the buyer and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇. ▇▇▇, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("the Amcap Parties") as the sellers were parties
to a Stock Purchase Agreement with an Effective Date of January 1, 2002 (the
"SPA");
WHEREAS, the Presidion Parties, Amfinity Capital, L.L.C. ("Amcap") and the
Amcap Parties are parties to Release and Settlement Agreements with Effective
Dates of April 30, 2002, January 15, 2003 and April 15, 2003 (the "R&SAs");
WHEREAS, PSI and the Lenders are parties to a Third Replacement Promissory
Note dated April 15, 2003 (the "Note");
WHEREAS, PSI is in default under the Note for one or more of the reasons set
forth in the default letter dated May 14, 2004, from the Lenders' counsel ▇▇▇▇
▇. ▇▇▇ to PSI and the default letter dated September 28, 2004, from the Lenders'
counsel ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ to PSI and that each allege certain defaults by PSI,
including but not limited to the failure to make monthly principal payments to
an escrow account beginning January 15, 2004 (the "Specified Events of
Default");
WHEREAS, the forbearance under the earlier Forbearance Agreement between the
parties dated June 9th, 2004 ("First Forbearance") has expired;
WHEREAS, subject to the terms and conditions set forth herein, the Lenders
have agreed to the proposal of the Presidion Parties to forbear from collecting
on the Note in strict accordance with the terms set forth herein;
NOW, THEREFORE, the parties agree as follows:
1. Recitals. The facts set forth in the recitals above are hereby
incorporated herein by reference as though such facts were fully set forth in
this Agreement.
2. Acknowledgement of Presidion Parties. The Presidion Parties hereby
acknowledge, represent, warrant, and agree that:
(a) As of October 1, 2004, the amount owed by PSI to the Lenders
("Indebtedness") is Two Million, Six Hundred Seventy-Two Thousand, Six
Hundred Sixty-Two Dollars and
Eighty-Eight ($2,672,662.88) in principal, plus interest accrued thereon from
January 15, 2004 to date.
(b) The rate of interest on the Indebtedness was increased to the Note
default rate of fourteen percent (14%) per annum beginning January 15, 2004
("original Default Rate") and such Original Default Rate was replaced by an
increased rate of eighteen percent (18%) per annum effective July 15, 2004
pursuant to the terms of the First Forbearance ("Forbearance Default Rate"),
which Forbearance Default Rate continues in effect today.
(c) As of October 1, 2004, the accrued interest on the Note is $39,248.22,
and interest will continue to accrue after such date at a per diem of
$1,318.03 per day.
(d) The due date for the Indebtedness has been properly accelerated under
the terms of the Note, and the Indebtedness is entirely due and owing to the
Lenders as of the date hereof.
(d) The Presidion Parties have no defenses to or offset against the
Indebtedness.
(e) The Lenders' demand for payment in full of the Indebtedness is timely
and proper.
(f) In any litigation commenced by the Lenders against PSI or against any
other Presidion Party which is a guarantor of or has provided security for
the Indebtedness, this Agreement will constitute an admission by the
Presidion Parties that the Indebtedness is due and owing and that the
Presidion Parties have no defenses to or offset against the Indebtedness.
(g) There is no material issue of fact as to the matters set forth in this
Agreement and, in the event of litigation, an order of summary judgment
against PSI and the Guarantors in the amount of the Indebtedness would be
appropriate.
(h) The Lenders have no obligation, nor have they made any agreement, to
refinance the Indebtedness, to extend the maturity date of the Note, or to
otherwise forbear from exercising their remedies at law or in equity after
5:00 P.M. Eastern time on October 13, 2004 ("Termination Time").
(i) The Presidion Parties have read and fully understand this Agreement.
2. Forbearance. In consideration of the covenants and agreements contained in
this agreement, provided that no "Forbearance Default" (as such term is defined
below) occurs and the Conditions Precedent set forth in Section 3 below have
been met, the Lenders hereby agree that, until the Termination Time, they will
not exercise any of their remedies at law or in equity (a) to collect the
Indebtedness, or (b) to foreclose upon or otherwise enforce its security
interest, liens or mortgages in any collateral, or (c) to draw upon the
Strategic Bancorp letter of credit that is security for the Indebtedness (the
"LOC") or (d) to enforce their rights against any guarantor of the Indebtedness
(the "Forbearance").
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3. Conditions Precedent. The following are conditions precedent to the
effectiveness of this Agreement:
(a) PSI shall pay the Lenders Five Thousand Dollars ($5,000) as a
non-refundable fee for entering into this Agreement
("Forbearance Fee").
(b) The amount of $80,106.66, which amount shall be applied to
all accrued interest on the Note plus an advance
non-refundable payment of interest through October 31, 2004,
must be paid to the Lenders upon execution of this Agreement.
In the event the Indebtedness is paid off prior to October
21, 2004, any amount paid hereunder in excess of interest due
under the Note shall be treated as an additional Forbearance
Fee.
All of the foregoing conditions must be fulfilled on or before 5:00 P.M. Eastern
time on October 4, 2004, or this Agreement shall be null and void.
4. Best Efforts. From the date hereof until the Termination Time, the
Presidion Parties will use their best efforts to satisfy, in full, the
Indebtedness.
5. Term and Termination of Forbearance. Unless the Note has been paid in full
or otherwise satisfied on or before the Termination Date, the Forbearance shall
end at the Termination Time. Additionally, the Lenders may terminate the
Forbearance immediately, without prior notice to PSI, upon occurrence of any of
the following events (each a "Forbearance Default"):
(a) any Presidion Party makes an assignment for the benefit of creditors,
or a voluntary or involuntary case in bankruptcy, receivership or insolvency
is commenced by or against any Presidion Party; or
(b) A levy, writ of attachment, garnishment, execution or similar process
is issued against or placed upon any Presidion party or any property of any
Presidion Party; or
(c) The Presidion Parties fails to keep the LOC in force and effect in an
amount equal to the unpaid balance of this Note and/or any Amcap Party
receives a notice of termination or nonrenewal of the LOC; or
(d) Any Presidion Party materially violates this Agreement.
6. No Waiver. Nothing in this Agreement shall be construed as a waiver of or
acquiescence to any other Event of Default under the Note, which defaults shall
continue in existence, subject only to the agreement of the Lenders, as set
forth herein, not to enforce the remedies available to the Lenders for a limited
period of time with respect to the Specified Events of Default. Except as
expressly provided herein, the execution and delivery of this Agreement shall
not: (a) constitute an extension, modification, or waiver of any aspect of the
Note or any other documents; (b) extend the terms of the Note or the due date of
any of the obligations thereunder or in any other agreement between any of the
Presidion Parties and any of
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the Amcap parties; (c) give rise to any obligation on the part of the Lenders to
extend, modify or waive any term or condition of the Note or any other agreement
between the Lenders and any of the Presidion Parties; or (d) give rise to any
defenses or counterclaims to the right of the Lenders to compel payment of the
Note or to otherwise enforce its rights and remedies under any other agreement
with any of the Presidion Parties. Except as expressly limited herein, the
Lenders hereby expressly reserves all of their rights and remedies under the
Note and all other agreements with any of the Presidion Parties and under
applicable law with respect to any defaults under the Note (including but not
limited to the Specified Events of Default). From and after the Termination Time
(or any earlier date following a Forbearance Default), the Lenders shall be
entitled to enforce the Note according to the original terms thereof.
7. Further Assurances. The Presidion Parties hereby covenant and agree that,
from and after the execution and delivery of this Agreement, they shall, from
time to time, execute and deliver any and all documents as are reasonably
necessary or requested by lender to carry out the intent of this Agreement,
provided that the execution and delivery of said documents and instruments does
not increase their liability beyond that contemplated by this Agreement.
8. Time of Essence. Time is of the essence in every obligation and duty of
the parties under this Agreement.
9. Strict Compliance. The Lenders' failure, at any time or times hereafter,
to require strict performance by Presidion Parties with any provision or term of
this Forbearance shall not waive, affect or diminish any right of the Lenders
thereafter to demand strict compliance and performance therewith. Any suspension
or waiver by the Lenders of a Specified Event of Default or any other Event of
Default shall not, except as may be expressly set forth herein, suspend, waive
or affect any Specified Event of Default or any other Event of Default, whether
the same is prior or subsequent thereto and whether of the same or of a
different kind or character. None of the undertakings, agreements, warranties,
covenants and representations of the Presidion Parties contained in this
Agreement, the Note or any of the other agreements between the parties, and no
Specified Event of Default or other Event of Default shall be deemed to have
been suspended or waived by the Lenders unless such suspension or waiver is in
writing and signed by the Lenders.
10. No Waiver of Specified Events of Default. Each Presidion Party
acknowledges and agrees that no default (including but not limited to Specified
Event of Default) shall be deemed to be waived, cured or eliminated by this
Agreement. Each Presidion Party agrees that, during the term of the Forbearance,
the Lenders shall not be required to issue any notices otherwise required by the
Note with respect to any Specified Event of Default.
11. Parties not Partners. Nothing contained in this Agreement shall
constitute any Presidion Party as a partner with, agent for, or principal of
Lender.
12. Cooperation. Without charge, (except for reimbursement of its reasonable
out of pocket expenses for travel costs incurred as a result of the request of
the Amcap Parties) the Presidion Parties shall fully cooperate, and shall cause
their respective employees to fully cooperate, in the furtherance of the
interests of Amcap and/or the Lenders in recovering any assets related to
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Paradyme Human Resources Corporation (or its subsidiary Paradyme Employer
Resources, Inc.) or ABS IV, Inc., and its subsidiaries, including insurance
receivables due from the Hartford.
13. Reaffirmation of Duties and Obligations. The Presidion Parties hereby
reaffirm all of their duties and obligations under the SPA, the R&SAs and each
and every document entered into in connection therewith, including but not
limited to their obligations under the Note, the Guarantors' obligations under
the Guarantees, and the Paradyme Parties' Obligations under the Security
Agreements, and the Presidion Parties agree that such duties and obligations
remain in full force and effect except to the extent the same may have been
specifically modified in this Agreement (in which case the same remain in full
force and effect as modified).
14. Release. The Presidion Parties, for each of themselves and for their
respective assigns, agents, employees, trustees, receivers, corporations,
successors, attorneys, representatives, heirs, executors, administrators and any
other persons or entities who may claim though them, hereby release and forever
discharge each of the Amcap Parties, Predision Acquisition Co.,LLC, and
▇▇▇▇▇▇▇▇▇ holding Company, Inc., and all of their respective assigns, agents,
employees, trustees, receivers, corporations, parents, affiliates, subsidiaries,
predecessors, successors, shareholders, officers, directors, partners,
attorneys, representatives, heirs, executors, administrators and each of them
(the "Released Parties"), of and from any and all manner of action or actions,
cause or causes of action, in law or in equity, suits, debts, liens, security
interest, claims, demands, damages, losses, costs or expenses of any nature
whatsoever, known or unknown, suspected or unsuspected, fixed or contingent
which any one or more of the Presidion Parties at any time heretofore ever had,
owned or held, or which any one or more of the Presidion Parties now has, owns
or holds, or which any one or more of the Presidion Parties may have ever had,
by reason of any matter, cause, fact, thing, act or omission whatsoever from the
beginning of time to the date of this Agreement including, without limiting the
generality of the foregoing, any and all claims and causes of the action arising
out of, based upon or relating to the SPA or the Note and any claims and causes
of action arising out of, based upon or relating to any proposed acquisition of
stock or assets of any Presidion Party(ies) by the Released Parties.
15. Warranty and Indemnification Regarding Non-Assignment of Claims.Each
Presidion Party hereby represents and warrants that he/it/they is the sole and
rightful owner of all right, title and interest in and to every claim and other
matter which he/it/they releases herein and has not heretofore assigned or
otherwise transferred, and shall not assign or otherwise transfer any interest
in any claim which he/it/they may have against any other party, or any party's
respective parents, affiliates, subsidiaries, predecessors and each other person
or entity released and discharged pursuant to Section 14 of this Agreement,
including, without limitation, any claims or causes of action which may be
alleged by any party. Each Presidion Party agrees to indemnify and hold each
Released Party and each other person or entity released pursuant to the Section
14 hereof, harmless from any liabilities, claims, demands, damages, costs,
expenses and attorney's fees incurred as a result of any person or entity
asserting any claim or cause of action based upon any such assignment or
transfer or purported assignment or transfer, or any such lien, change or
encumbrance.
16. Covenant not to ▇▇▇. The Presidion Parties covenant and agree not to
bring any claim, action, suit or proceeding against the other party hereto
regarding the matters settled, released
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and dismissed hereby, including, but not limited to, any claim, action, suit or
proceeding raised or that could have been raised, and each party covenants and
agrees not to bring any claim, action, suit, or proceeding against any other
party hereto regarding the matters settled and released hereby, including, but
not limited to, any claim, action, suit or proceeding raised or that could have
been raised in a lawsuit, and each party further covenants and agrees that this
Agreement is a bar to any such claim, action, suit or proceeding. Suit may be
brought by any party to enforce the provisions of this Agreement.
17. Attorneys' Fees. In the event the Lenders commence any action to enforce
this Agreement, or any Released party is made a party to any litigation or
bankruptcy proceeding as a result of this Agreement, the Presidion Parties,
jointly and severally, shall be responsible for all attorneys' fees and other
costs and expenses incurred by the Lenders and/or the applicable Released
Party(ies).
18. Representation by Counsel. The parties hereto acknowledge that they have
been represented, or have had the opportunity to be represented by counsel.
19. No Third Party Beneficiaries. Unless expressly provided otherwise herein,
this Agreement is made and entered into for the sole protection and benefit of
the parties hereto and the Released Parties, and no other person, persons, or
entities shall have any right of action hereon, right to claim any right or
benefit from the terms contained herein, or be deemed a third party beneficiary
hereunder.
20. Governing Law. This Agreement is executed and delivered within the State
of Florida, and the rights and obligations of the parties hereunder shall be
construed and enforced in accordance with, and governed by, the laws of the
State of Florida. Each of the Parties consents to the non-exclusive jurisdiction
of the state and federal courts with general jurisdiction over Palm Beach
County, Florida, for any legal action, suit, or proceeding arising out of or in
connection with this Agreement (including but not limited to any action for
collection of the Note), and agrees that any such action, suit, or proceeding
may be brought only in such courts. Each of the Parties further waives any
objection to the laying of venue for any such suit, action, or proceeding in
such courts. Each party agrees to accept and acknowledge service of any and all
process that may be served in any suit, action, or proceeding.
21. Further Representation and Warranties. Each party hereto represents and
warrants to each other party hereto and agrees with each other party hereto, as
follows:
(a) He/it/they have authority to execute this Agreement and bind the
person or entity on whose behalf he/it/they purport to execute it.
(b) This Agreement is the result of arms length negotiations between the
parties.
(c) He/it/they intend this Agreement to be final and binding between and
among the parties hereto, including their heirs, successors and assigns.
He/it/they relies upon the finality of this Agreement as a material factor
inducing him/it/they to execute this Agreement.
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(d) He/it/they will not take any action which would interfere with the
performance of this Agreement by any other party hereto or which adversely
affects the benefits to be received hereunder.
22. Integration. This Agreement constitutes a single integrated written
agreement expressing the entire agreement and understanding between the parties
hereto concerning the subject matter hereof and supersedes and replaces all
prior negotiations and/or proposed agreements, written or oral.
23. No Representations or Warranties other then Those in this Agreement. Each
of the parties to this Agreement acknowledges that no other party, nor any agent
or attorney of any other party has made any promise, representation or warranty
whatsoever, express or implied, not contained herein concerning the subject
matter hereof, to induce him or it to execute this Agreement, and acknowledges
that he or it has not executed this instrument in reliance on any such promise,
representation or warranty not contained herein, and further acknowledges that
there have been and are no other agreements or understandings between the
parties relating to the settled disputes.
24. WAIVER OF TRIAL BY JURY. THE LENDERS AND THE PRESIDION PARTIES
IRREVOCABLY AND UNCONDITIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDINGS BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS AGREEMENT
OR ANY DOCUMENT OR INSTRUMENT TO BE EXECUTED AND DELIVERED PURSUANT TO THIS
AGREEMENT. THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY THE
LENDERS AND THE PRESIDION PARTIES AND THE LENDERS AND THE PRESIDION PARTIES
ACKNOWLEDGE THAT NEITHER THE LENDERS AND THE PRESIDION PARTIES NOR ANY PERSON
ACTING ON BEHALF OF ANY PARTY HERETO HAS MADE ANY REPRESENTATIONS OF FACT TO
INDUCE THIS WAIVER OF TRIAL BY JURY IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT.
25. Captions. The captions or headings at the beginning of each section,
paragraph or subparagraph of this Agreement are for the convenience of the
parties only and are not to be construed as defining, limiting or expanding, in
any way, the scope or intent of the provisions of this Agreement.
26. Amendment. This Agreement can be waived, changed, discharged,
terminated or modified only by an instrument in writing signed by the party
against whom enforcement of any such waiver, change, discharge, termination or
modification is sought. The Lenders anticipate that discussions addressing the
Indebtedness may take place in the future. During the course of such
discussions, the Lenders and any of the Presidion Parties may touch upon and
possibly reach a preliminary understanding on one or more issues prior to
concluding negotiations. Notwithstanding this fact and absent an express written
waiver by the lenders, the Lenders will not be bound by an agreement on
individual issues unless and until an agreement is reached on all issues and
such agreement is reduced to writing and signed by Presidion Parties and
Lenders.
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30. Invalidity of Provision. If any provision of this Agreement is by law
unenforceable or void, such unenforceability or voidness shall not affect the
other provisions of this Agreement, all of which shall remain in full force and
effect.
31. Gender and Number. In this Agreement (unless the context requires
otherwise) the masculine, feminine and neuter genders and the singular and
plural shall be deemed and considered to include one another, as appropriate.
32. Counterparts. This Agreement can be executed in two or more counterparts,
each of which shall be considered an original and all of which shall together
constitute one and the same instrument.
33. Binding Agreement. This Agreement shall be binding upon and inure to the
benefit of the heirs, permitted assigns and successors in interest of the
parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the date and year first written above.
THE PRESIDION PARTIES:
PRESIDION SOLUTIONS, INC.,
PRESIDION CORPORATION
ABS IV, INC.,
PARADYME, INC., and
PARADYME NATIONAL INSURANCE BROKERS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Their: President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually as Guarantor of PSI
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
-----------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇, individually as Guarantor of PSI
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, individually as Guarantor of PSI
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THE LENDERS:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
----------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, individually
By ▇▇▇▇▇ ▇. ▇▇▇ under power of attorney
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, individually
By ▇▇▇▇▇▇ ▇. Story under power of attorney
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STATE OF MICHIGAN)
)
COUNTY OF OAKLAND)
Before me, the undersigned, in and for said county and state, personally
appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, whose name as President of Presidion Solutions,
Inc., a Florida corporation, Presidion Corporation, a Florida Corporation, ABS
IV, Inc., a Delaware corporation, Paradyme, Inc., a Florida corporation and
Paradyme National Insurance Brokers, Inc., a Georgia corporation, signed the
foregoing RELEASE AND SETTLEMENT AGREEMENT, and who is known to me, acknowledged
before me that he, as such officer and with full authority, executed the same
voluntarily for and as the official act of said corporations.
Sworn to and subscribed before me this the 5th day of October, 2004.
/s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------
Notary Public
(SEAL) My commission expires: 8-25-2008
---------
STATE OF MICHIGAN)
)
COUNTY OF OAKLAND)
I, the undersigned, in and for said county and state, hereby certify that
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, whose name is signed to the foregoing instrument, and who
is known to me, acknowledged before me that he/she, being informed of the
contents of said instrument, executed the same voluntarily, sworn to and
subscribed before me this 5th day of October, 2004.
/s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------
Notary Public
(SEAL) My commission expires: 8-25-2008
---------
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STATE OF MICHIGAN)
)
COUNTY OF OAKLAND)
I, the undersigned, in and for said county and state, hereby certify that
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, whose name is signed to the foregoing instrument, and who is
known to me, acknowledged before me that he/she, being informed of the contents
of said instrument, executed the same voluntarily, sworn to and subscribed
before me this 5th day of October, 2004.
/s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------
Notary Public
(SEAL) My commission expires: 8-25-2008
---------
STATE OF MICHIGAN)
)
COUNTY OF OAKLAND)
I, the undersigned, in and for said county and state, hereby certify that
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇, whose name is signed to the foregoing instrument, and who
is known to me, acknowledged before me that he/she, being informed of the
contents of said instrument, executed the same voluntarily, sworn to and
subscribed before me this 5th day of October, 2004.
/s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------
Notary Public
(SEAL) My commission expires: 8-25-2008
---------
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