OPERATING LEASE AGREEMENT
Exhibit 10.1
This Operating Lease Agreement (“Agreement”) is made as of September 30, 2011 (the
“Effective Date”) by and between LPHC Acquisition Partners LLC (“LPHC”), and
Employment Screening Profiles, Inc., a Florida corporation, and Worldwide Information, Inc., a
Delaware corporation (collectively, “Seller”).
WHEREAS, Seller is engaged in the business of providing various types of public and private
data to business and credentialed clients throughout the United States (the “Business”);
WHEREAS, on June 16, 2011, Seller commenced a case under title 11 of the Bankruptcy Code, 11
U.S.C. §§ 101-1330 (the “Bankruptcy Code”), by filing a voluntary petition for relief in
the United States Bankruptcy Court for the District of Massachusetts (the “Bankruptcy
Court”), Case No. 11-15791(JNF);
WHEREAS, Seller has agreed to the terms of (a) a proposed plan (the “Plan”) of
reorganization to be co-sponsored by LPHC and Seller, and (b) a contingent asset purchase agreement
(the “LPHC APA”) with LPHC pursuant to which LPHC would purchase the Included Assets (as
defined in the LPHC APA) of Seller; and
WHEREAS, the Plan contemplates that Seller and LPHC shall enter into an agreement relating to
the operation, maintenance, risk of loss, injury and cost of Seller’s Business.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and in the Plan and
contingent LPHC APA and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions.
For purposes of this Agreement, capitalized terms not otherwise defined herein shall have the
same meanings given to them in the Plan or LPHC APA.
2. Title; Risk of Loss; Revenues.
Seller shall retain title to the Included Assets during the Term (as defined below). Except
as otherwise provided herein, LPHC shall assume the expense and risk of loss and injury that relate
exclusively to the operation by LPHC of the Included Assets and that arise exclusively as a result
of actions or omissions occurring during the Term. LPHC shall be entitled to all accounts
receivable and all income and revenue attributable to the Business and the Included Assets that
arise during Term. If LPHC collects any accounts receivable that arose prior to September 30, 2011,
LPHC shall remit such collected amounts to Seller within thirty (30) days of receipt of such
amounts.
3. Control.
Seller hereby grants LPHC complete control over, and authority to operate and direct, all
aspects of the Business, including the Included Assets and the right to relocate any Included
Assets during the Term. During the Term, unless directed by LPHC, Seller shall cooperate with LPHC
(a) to maintain all tangible and intangible assets used in the operation of the Business as of
immediately prior to the Effective Date and to continue to operate the Business and the Included
Assets at least at the levels of operation of the Business as of immediately prior to the Effective
Date, and (b) to relocate and integrate the Included Assets and the Business to and with existing
LPHC facilities and operations.
4. Term.
Subject to Bankruptcy Court approval, the term of this Agreement shall commence at 12:00 a.m.
Eastern time on September 30, 2011 and end on the earliest of (a) the date on which the Plan has
been confirmed by the Bankruptcy Court and all conditions to its effectiveness have been satisfied
or waived, (b) the termination of this Agreement, (c) the Closing Date (as defined in the LPHC
APA), and (d) January 31, 2012, which date may be extended to February 29, 2012 in accordance with
the LPHC APA (the “Term”).
5. Services.
All actual costs and expenses incurred by Seller at LPHC’s direction and in accordance with
this Agreement that relate to the operation of the Business during the Term, shall be reimbursed by
LPHC.
5.1 Services. During the Term, Seller agrees to provide LPHC use of those services described
on Schedule A hereto (the “Services” and each service listed, a “Service”)
on the terms specified in Schedule A and herein. LPHC may, upon five (5) days written
notice to Seller, terminate the provision of any Service.
5.2 Cooperation. The parties shall cooperate with each other and provide such assistance as
is reasonably required for Seller to provide the Services. Such cooperation shall include, but not
be limited to, the timely provision of any information reasonably required in connection with the
provision of the Services.
6. Use of Premises and Facilities; Operation of the Business.
6.1 Premises. Seller agrees to grant to LPHC the use of (a) a portion of the existing
physical space and facilities used by Seller in connection with the Business (the
“Premises”) within the buildings located on such Premises (the “Building”). LPHC
shall have the right to reasonably identify the specific Premises to be used in the Buildings from
time to time. The parties recognize that the use of certain portions of the Premises are needed by
LPHC to operate the Business and Seller to administer its bankruptcy estate during the Term and
agree to work cooperatively in respect of use of this shared space. Either Seller or LPHC may
terminate its use of any Premises upon five (5) days written notice to the other party.
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6.2 Telecommunications, Internet and Utility Services. Seller shall use commercially
reasonable efforts to provide/continue to provide to each of the Premises, as applicable,
telecommunications services, internet services, electricity, water and heating, ventilating and air
conditioning at the levels provided immediately prior to the Effective Date and at levels
reasonably sufficient to allow LPHC to conduct the Business as the Business was conducted prior to
the Effective Date. Seller shall not, however, be liable for the interruption of any services or
utilities; provided however that Seller shall reasonably cooperate with LPHC to remediate as
promptly as reasonably practicable any such interruption of services. LPHC shall be responsible
for any additional security and/or reserve deposit required by the providers of the services
described in this Section 6.2, provided that Seller shall turn over, or cause to be turned
over, to LPHC any such deposit, net of wire transfer fees and/or any other fees or offsets, if any,
to the extent related to the Services, no later than two (2) Business Days after such deposit is
returned from a provider, as applicable, to Seller. Any such additional security and/or reserve
deposit posted by LPHC shall not constitute property of Seller’s bankruptcy estate but shall be and
at all times shall remain LPHC’s property.
6.3 Use; Compliance with Laws; Rules. LPHC may use the Premises consistent with the operation
of the Business prior to the Effective Date and only for the specific, allowed purposes set forth
in the respective lease agreements governing such Premises. LPHC shall observe and comply with all
laws with respect to LPHC’s use of each of the Premises. LPHC shall not do or permit anything to
be done in, about or with respect to either of the Premises which would (a) injure the Included
Assets, the Premises or the Building or (b) vibrate, shake, overload, or impair the efficient
operation of the Premises or the Building or any of the building systems located therein. LPHC
shall comply with all reasonable rules and regulations promulgated from time to time by Seller,
including, without limitation, rules relating to security and access within the Buildings, as
applicable. With respect to all of the foregoing, Seller shall promptly notify LPHC if its actions
fail to comply in order to permit LPHC to cure or otherwise remedy such failure.
6.4 Insurance. LPHC shall obtain and keep in full force and effect, at LPHC’s sole cost,
insurance substantially similar to insurance which Seller has in place for the Business as of the
date hereof, including, but not limited to commercial general liability policy of insurance
protecting LPHC against claims for bodily injury, personal injury and property damage based upon,
involving or arising out of LPHC’s use or occupancy of each of the Included Assets, Premises and
all areas appurtenant thereto. Such insurance shall be on an occurrence basis providing single
limit coverage in an amount not less than $1,000,000 per occurrence. The policy shall include
coverage for liability assumed under this Agreement as an “insured contract” for the performance of
LPHC’s indemnity obligations under this Agreement, and shall name Seller as an additional insured.
In addition, LPHC shall obtain and keep in full force and effect, at LPHC’s sole cost, a policy of
“all risk” property insurance insuring the Included Assets and all personal property associated
with the operation of the Business in each of the Premises. LPHC shall deliver certificates
evidencing such insurance to Seller upon request. Each such insurance policy shall be in a form
and from an insurance company reasonably acceptable to Seller.
6.5 Hazardous Materials. LPHC shall not, without the prior written consent of Seller, which
consent may be withheld in Seller’s sole discretion, use, store, transport or dispose of any
Hazardous Material in or about the Premises. LPHC, at its sole cost, shall comply with
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all laws relating to its use of Hazardous Materials. If Hazardous Materials stored, used,
disposed of, emitted, or released on or about the Premises by LPHC or its agents, employees or
contractors result in contamination of the Premises or the water or soil thereunder, then LPHC
shall promptly take any and all action necessary to clean up such contamination as required by law.
LPHC shall indemnify, defend, protect and hold Seller and its officers, directors, employees,
successors and assign harmless from and against, all actual losses, damages, claims, costs and
liabilities, including attorneys’ fees and costs, arising out of LPHC’s use, discharge, disposal,
storage, transport, release or emission of Hazardous Materials on or about the Premises during the
Term in violation of applicable law. Seller shall indemnify, defend, protect and hold LPHC and its
officers, directors, employees, successors and assigns harmless from and against, all actual
losses, damages, claims, costs and liabilities, including attorneys’ fees and costs, arising out of
Seller’s use, discharge, disposal, storage, transport, release or emission of Hazardous Materials
on or about the Premises during the Term in violation of applicable law. “Hazardous Materials”
shall mean any material or substance that is now or hereafter designated by any applicable
governmental authority to be, or regulated by any applicable governmental authority as,
radioactive, toxic, hazardous or otherwise a danger to health, reproduction or the environment.
6.6 Repairs. LPHC accepts each of the Premises in “as is” condition. During its use of the
Premises, LPHC shall maintain each of the Premises in neat, orderly condition and shall repair any
damage to any of the Buildings caused by LPHC or its agents, employees, contractors or invitees;
provided however that LPHC shall not be responsible for the actions of Seller or its agents,
employees, contractors or invitees.
6.7 Alterations. Except as otherwise provided herein, no alterations or improvements shall be
made to any Premises without the prior written consent of Seller, which consent shall not be
unreasonably withheld and which consent shall be subject to the respective lease agreements
governing such Premises.
6.8 Condemnation. If all or any part of any Premises is taken by any Governmental Authority
by the exercise of the power of eminent domain or by a voluntary transfer in lieu thereof (a
“Condemnation”), this Agreement shall terminate as to the part of the applicable Premises
taken. All Condemnation proceeds shall be the property of Seller.
6.9 Seller’s Right to Enter. Provided Seller complies with all of LPHC’s reasonable security
measures, Seller and/or its agents may, upon reasonable advance notice (except in the case of
emergency directly affecting the Premises), enter the Premises at any reasonable time for the
purpose of inspecting the same, supplying any service to be provided by Seller to LPHC, making
necessary alterations or repairs or for any other purpose permitted under this Agreement.
6.10 Confidentiality. The parties hereto acknowledge that the Premises is not separately
demised, and each party shall use commercially reasonable efforts to prevent its agents, employees
or contractors from discovering or otherwise coming into contact with confidential information of
the other party. If, despite such efforts, any such confidential information is discovered by a
party, such party shall immediately inform the other party of such discovery, and shall hold, and
cause its employees, agents, contractors, invitees and LPHC to hold, such information confidential.
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6.11 Vacating Premises. Unless, pursuant to the LPHC APA, LPHC has assumed the lease of any
of the Premises, upon or before expiration of the Term, LPHC shall vacate and surrender the
Premises to Seller in the same condition as received from Seller, excepting ordinary wear and tear,
and all of LPHC’s personal property shall be removed from the Premises in compliance with all
applicable laws. Once all the personal property of LPHC has been removed, Seller will supply a
checklist of any remaining items required to be removed by LPHC hereunder or damages to the
Premises or Included Assets for which LPHC is responsible hereunder within three (3) Business Days,
and LPHC will have three (3) Business Days to contest any item on the list. After this period,
LPHC agrees to make commercially reasonable efforts to remove any such remaining assets or repair
any such damage within fifteen (15) Business Days. If any of the Premises are not so surrendered,
LPHC shall be liable to Seller for all reasonable costs actually incurred by Seller in returning
the Premises to the required condition. If LPHC does not surrender the Premises upon the
expiration of the Term of this Agreement or its earlier termination, as required above, LPHC shall
indemnify, defend, protect and hold harmless Seller from and against all actual and reasonable
costs and/or losses incurred and paid by Seller to the extent resulting from LPHC’s delay in
surrendering the Premises, and pay Seller a holdover fee of $5,000 a month (prorated for any
partial month). LPHC shall not be responsible for any damages caused by Seller, including any of
Seller’s employees or agents hereunder, and shall not be responsible for removing any assets
retained by the Seller estate under the Plan or LPHC APA or otherwise constituting Seller’s
property.
6.12 Operation of the Business; Budget. On or prior to September 30, 2011, LPHC and Seller
shall agree on a budget for the operation of the Business during the Term (the “Budget”),
which Budget shall be in substantially similar form as the budget attached as Exhibit A to the
Final Order Regarding Motion for Authorization of (1) the Interim and Permanent Use of Cash
Collateral, (2) the Granting of Replacement Liens, (3) Entry of Scheduling Order Regarding
Continued Use of Cash Collateral and (4) Additional Relief entered on July 26, 2011 by the United
States Bankruptcy Court for the District of Massachusetts in Case No. 11-15791 [Docket No. 122].
During the Term, LPHC agrees that it shall conduct the Business in accordance with the Budget (with
such reasonable variances as may be mutually agreed by the parties) and in the ordinary course,
including, but not limited to paying, discharging or satisfying all liabilities of the Business,
including, but not limited to, operating expenses, taxes, insurance, payroll and other
employee-related obligations, and amounts due under this Agreement in the ordinary course of
business or in accordance with the terms of such liabilities. LPHC shall provide a certificate on
the first (1st) of each month certifying the payment of all such amounts to Seller and
shall provide Seller with evidence of the working capital funding required to fund cash
requirements pursuant to the Budget.
6.13 Changes or Amendments to Included Assets; Execution of Documents Related to Included
Assets. LPHC shall not, without the prior written consent of Seller, which consent may be withheld
in Seller’s sole discretion, amend, change or modify the Included Assets. For the avoidance of
doubt, the Included Assets includes Seller’s contracts. LPHC shall not execute any certificate,
report, notice, consent, opinion, statement or other document on behalf of Seller.
6.14 Storage and Delivery of Included Assets. Seller and LPHC agree that during the Term, the
machinery, equipment and other personal property included in the Included Assets and located at the
Premises may, at the sole discretion of LPHC, remain at the Premises, as
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applicable. During the Term, LPHC shall have the right to, at its expense and risk, create,
use, remove and transport the Included Assets or any property or goods developed, manufactured or
created with the aid of any of the Included Assets without damage to Seller’s property, provided
that Seller shall reasonably cooperate with LPHC in effecting such use and process and that LPHC
will provide reasonable notice of the removal or transportation of the Included Assets. Upon
termination of this Agreement, other than due to the occurrence of the Closing pursuant to the LPHC
APA, LPHC shall deliver the Included Assets to Seller at the Premises at the sole cost and expense
of LPHC. All Included Assets shall be delivered in the same condition as on the date hereof,
reasonable wear and tear excepted.
7. Breach. In the event of a breach by either party of any of its obligations hereunder,
the breaching party shall cure such, if curable, breach within fifteen (15) days after written
notice thereof by the non-breaching party. Upon the failure by LPHC to cure any such breach as
provided herein, upon any termination of the LPHC APA or upon any event that would have a Material
Adverse Effect (as defined in the LPHC APA), Seller may immediately terminate this Agreement and
the LPHC APA.
8. Fees.
8.1 Scheduled Services and Fees. In consideration of the provision of the Services hereunder,
from after September 30, 2011, LPHC shall pay Seller a monthly fee of $2,100 (“Fees”).
LPHC shall pay to Seller all Fees with respect to each thirty (30) day period included in the Term
on the first Business Day of such thirty (30) day period. In addition, LPHC shall pay Seller an
administrative fee in the amount of $15,000 (“Administrative Fee”), which shall be payable
to Seller on September 30, 2011.
8.2 Additional Services and Fees. LPHC may request additional services not contemplated by
Schedule A. In such event, the parties hereto shall cooperate in good faith to determine
the anticipated actual cost to Seller of providing such additional service (which actual cost
shall, in any event, be reasonable and customary), shall calculate a monthly fee with respect to
any such additional service based on such anticipated actual cost, and shall, by mutual agreement,
amend Schedule A hereto to reflect such additional service and fee. Upon such amendment to
Schedule A, such additional service shall be deemed a “Service” for all purposes hereunder,
and such additional fee shall be deemed a “Fee” for all purposes hereunder, including Section 9.
9. Personnel; Standard of Performance.
(a) Each Service to be provided hereunder shall be performed by the personnel set forth on
Schedule A, as such schedule may be updated from time to time pursuant to the mutual
agreement of the parties hereto, under the listing for such Service (each such individual, a
“Seller Agent” and, collectively, the “Seller Agents”), unless otherwise mutually
agreed by the parties. Seller shall remain responsible, in accordance with the terms of this
Agreement, for the performance of the Services and all other obligations of Seller hereunder.
(b) Seller shall not be liable for any failure of, or delay in the performance of, any
Services under this Agreement for the period that such failure or delay is due to acts of God,
civil
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war, strikes or labor disputes, or any other cause beyond Seller’s reasonable control. Seller shall
notify LPHC promptly of the occurrence of any such cause and shall resume full performance of such
Services as promptly as practicable after such cause is terminated.
(c) Nothing in this Agreement shall grant, suggest or imply any right, agreement or authority
for Seller to use the name, trademarks, service marks, trade names or domain names of LPHC for any
purpose whatsoever. Nothing in this Agreement shall be deemed to grant to Seller any right,
agreement or assignment of any intellectual property of LPHC.
10. Indemnity.
10.1 Indemnity by LPHC. Subject to Section 10.2 hereof, LPHC will defend, indemnify, and hold
harmless Seller and its affiliates, and each of their respective officers, directors, employees,
customers, agents, successors and assigns (collectively, “Seller Indemnified Parties”),
from and against any and all costs, losses, liabilities and expenses (including reasonable
attorneys fees) arising out of or directly relating to: (i) third party claims related to LPHC’s
use of the Services under this Agreement; (ii) any dispute between LPHC and LPHC’s customers or
suppliers during the Term; (iii) any services or transactions performed by LPHC using the Services,
including without limitation, any and all claims, actions, suits, or proceedings alleging fraud,
breach of security, noncompliance with laws, breach of contract, infringement, misappropriation or
negligence arising from conduct during the Term; and (iv) breach of LPHC’s obligations under this
Agreement.
10.2 Indemnity by Seller. Seller will defend, indemnify, and hold harmless LPHC and its
affiliates, and each of their respective officers, directors, employees, customers, agents,
successors and assigns, from and against any and all costs, losses, liabilities and expenses
(including reasonable attorneys fees) arising out of or relating to the bad faith, willful or
wanton misconduct, negligence or gross negligence of a Seller Indemnified Party. LPHC ACKNOWLEDGES
THAT, OTHER THAN AS EXPRESSLY PROVIDED HEREIN, SELLER PROVIDES THE SERVICES WITHOUT REPRESENTATION
OR WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NONINFRINGEMENT,
TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, SELLER
MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES DO NOT INFRINGE ANY PATENT, COPYRIGHT OR
TRADE SECRET OF ANY THIRD PARTY, AND ACCEPTS NO RESPONSIBILITY FOR ANY EXPENSES, LOSSES OR ACTION
INCURRED OR UNDERTAKEN BY LPHC OR ANY OF ITS AFFILIATES, CONTRACTORS OR AGENTS AS A RESULT OF
LPHC’S RECEIPT OR USE OF SERVICES OTHER THAN THOSE EXPENSES, LOSSES OR ACTIONS RESULTING FROM OR
ARISING OUT OF A SELLER INDEMNIFIED PARTY’S ACTS OF BAD FAITH, WILLFUL OR WANTON MISCONDUCT,
NEGLIGENCE OR GROSS NEGLIGENCE.
10.3 Limitations on Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, MULTIPLE OR PUNITIVE DAMAGES
ARISING OUT OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS)
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REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, ARISING UNDER STATUTE
OR OTHERWISE.
11. Notices.
All notices, requests, demands and other communications shall be given in accordance with the
provisions contained in the contingent LPHC APA.
12. General Provisions.
12.1 Independent Contractor Status. The status of Seller shall be that of independent
contractor and nothing set forth herein shall be deemed to constitute any partnership, joint
venture, fiduciary relationship, agency, or similar relationship between the parties hereto.
Neither party hereto shall represent to any third party that any such partnership, joint venture,
fiduciary relationship or agency exists in respect of this Agreement, or that Seller is acting on
behalf of LPHC pursuant to this Agreement in any capacity other than that of independent
contractor. Nothing in this Agreement confers authority upon either party to enter into any
commitment or agreement binding on the other.
12.2 Entire Agreement. This Agreement sets forth the entire agreement and understanding of
the parties hereto in respect of the subject matter hereof and supersedes all prior agreements,
promises, covenants, arrangements, representations or warranties, whether oral or written, by any
party hereto or any officer, director, employee or representative of any party hereto. No
modification or waiver of any provision of this Agreement will be valid unless it is in writing and
signed by the party to be charged therewith.
12.3 Severability. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision hereof.
12.4 Assignability. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. Neither Seller nor LPHC may assign
this Agreement or any interest herein without the prior written consent of the other party hereto,
provided that LPHC may, in its sole discretion, assign all or any portion of its rights and
obligations hereunder to one or more affiliates of LPHC. To the extent LPHC assigns all or any
portion of its rights and obligations hereunder to one of its affiliates, LPHC shall guarantee such
affiliate’s obligations hereunder.
12.5 Counterparts. This Agreement may be executed in multiple counterparts (including those
transmitted by facsimile or other electronic format), each of which shall be deemed in original but
all of which together shall constitute one and the same instrument.
12.6 Effect of Headings. The titles of section headings herein contained has been provided
for convenience of reference only and shall not affect the meaning of construction of any of the
provisions hereof.
12.7 Waivers. Compliance with any condition or covenant set forth herein may not be waived
except by writing duly executed by the party or parties to be bound. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a waiver
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thereto, and any waiver on the part of any party of any such right, power or privilege, or any
single or partial exercise thereof shall not preclude any further exercise thereof or the exercise
of any other such right, power or privilege.
12.8 Governing Law. This Agreement shall be governed by and construed in accordance with
federal bankruptcy law, to the extent applicable, and, where state law is implicated, the internal
laws of the Commonwealth of Massachusetts, without giving effect to any principles of conflicts of
law.
12.9 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM, ACTION OR PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE)
RELATING TO THIS AGREEMENT OR ANY AGREEMENTS CONTEMPLATED HEREIN OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
12.10 Construction. The words “include,” “includes,” and “including” will be deemed to be
followed by “without limitation.” Pronouns in masculine, feminine, or neuter genders will be
construed to include any other gender, and words in the singular form will be construed to include
the plural and vice versa, unless the context otherwise requires. References to “this Agreement”
shall include all Exhibits, Schedules and other agreements, instruments or other documents attached
hereto. The words “herein,” “hereof,” “hereby,” “hereunder,” and words of similar import refer to
this Agreement as a whole and not to any particular subdivision unless expressly so limited.
References in this Agreement to Articles, sections, Schedules or Exhibits are to Articles or
sections of, Schedules or Exhibits to, this Agreement, except to the extent otherwise specified
herein. References to the consent or approval of any party hereto mean the written consent or
approval of such party, which may be withheld, conditioned or delayed in such party’s sole and
absolute discretion, except to the extent otherwise specified herein. All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein. Any agreement, instrument or statute
defined or referred to herein means such agreement, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of agreements or instruments) by waiver
or consent and (in the case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated therein. The headings of the
sections, paragraphs and subsections of this Agreement are inserted for convenience only and are
not part of this Agreement and do not in any way limit or modify the provisions of this Agreement
and shall not affect the interpretation hereof. Unless otherwise specified herein, payments that
are required to be made under this Agreement shall be paid by wire transfer of immediately
available funds to an account designated in advance by the party entitled to receive such payment.
All references to “dollars” or “$” or “US$” in this Agreement means U.S. dollars.
12.11 Time Periods. Any action required hereunder to be taken within a certain number of days
shall be taken within that number of calendar days; provided, however, that if the last day for
taking action falls on a weekend or a legal holiday in the State of Massachusetts,
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the period during which such action may be taken shall be automatically extended to the next
Business Day.
12.12 No Strict Construction. The language used in this Agreement will be deemed to be the
language chosen by the parties hereto to express their mutual intent, and no rule of strict
construction will be applied against either party.
12.13 Specific Performance. The parties hereto agree that if any of the provisions of this
Agreement were not performed in accordance with their specific terms or were otherwise breached,
irreparable damage would occur, no adequate remedy at law would exist and damages would be
difficult to determine, and that the parties hereto shall be entitled to specific performance of
the terms hereof (without the posting of any bond), in addition to any other remedy at law or
equity.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in multiple
counterparts as of the date set forth above by their duly authorized representatives.
| LPHC ACQUISITION PARTNERS LLC | ||||||
| By: | ||||||
| Name | ||||||
| Title: | ||||||
| EMPLOYMENT SCREENING PROFILES, INC., | ||||||
| a Florida corporation | ||||||
| By: | ||||||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, solely in his capacity as Chapter 11 Trustee | |||||
| Title: | Chapter 11 Trustee | |||||
| WORLDWIDE INFORMATION, INC., | ||||||
| a Delaware corporation | ||||||
| By: | ||||||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, solely in his capacity as Chapter 11 Trustee | |||||
| Title: | Chapter 11 Trustee | |||||
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