EXHIBIT 10.29
CAPITAL STAFFING FUND, INC.
SUBORDINATED NOTE
$500,000.00 Boston Masssachusetts
February 21, 1997
FOR VALUE RECEIVED, CAPITAL STAFFING FUND, INC., a corporation
organized and existing under the laws of the state of Florida (the "Company"),
hereby promises to pay Paul M. Burrell (together with any subsequent holder of
this Note, the "Obligee") the principal sum of Five Hundred Thousand and 00/100
Dollars ($500,000.00), with interest in arrears on the unpaid principal balance
from time to time outstanding from the date hereof until due and payable at the
rate provided in Section 1(a) hereof. Each holder of this Note, by acceptance
hereof, agrees to and shall be bound by the provisions of this Note, including
without limitation, the subordination provisions in Section 2 hereof.
1. TERMS OF NOTE.
(a) INTEREST AND PRINCIPAL. This Note shall bear interest on the
outstanding principal balance hereof at the rate of twenty-one percent (21%) per
annum (computed on the basis of a 365-day year). Principal shall be due and
payable in full on March 21, 2001. Interest at the rate of 21% per annum shall
be payable monthly, in arrears, beginning February 21, 1997. Except as otherwise
set forth in this Agreement, all payments of principal and interest hereunder
shall be made by the Company in lawful money of the United States of America in
immediately available funds on the date such payments due at the address of the
Obligee on the books of the Company or such other place as the holder hereof
shall designate to the Company in writing.
(b) NO PREPAYMENT. This Note shall not be prepaid until the Senior
Indebtedness (as defined below) shall have been paid in full in cash and the
Credit Agreement (as defined below) shall have been irrevocably terminated.
2. SUBORDINATION IN RIGHT OF PAYMENT TO SENIOR INDEBTEDNESS.
(a) SUBORDINATION. The Company agrees, and each holder of this Note
agrees, that the principal and interest on this Note is and shall be
subordinated in right of payment, to the extent and in the manner hereinafter
set forth, to the prior payment in full in cash of all Senior Indebtedness and
that the subordination of this Note pursuant to this Section 2 is for the
benefit of all holders of the Senior Indebtedness.
(b) SENIOR INDEBTEDNESS. "Senior Indebtedness" means all obligations
and undertakings of any kind owed by the Company or any Subsidiary of the
Company to the holders of the Senior Indebtedness from time to time under or
pursuant to any of the Senior Lending
Agreements including, without limitation, whether direct or indirect, absolute
or contingent, secured or unsecured, now existing or hereafter arising, all
loans, advances, liabilities and debt balances, all principal and interest
(including all interest accruing after commencement of any case, Proceeding or
other action relating to the bankruptcy, insolvency or reorganization of the
Company) accruing thereon, all charges, expenses, fees and other sums chargeable
to the Company or any Subsidiary of the Company by the holders of the Senior
Indebtedness, all reimbursement, indemnity or other obligations due and payable
to the holders of the Senior Indebtedness and all covenants and duties at any
time owed by the Company or any Subsidiary of the Company to the holders of the
Senior Indebtedness. Senior Indebtedness shall include any debt, liability or
obligation owing from the Company or any Subsidiary of the Company to others
which the holders of the Senior Indebtedness may have obtained by assignment,
pledge, purchase or otherwise. Senior Indebtedness shall continue to constitute
Senior Indebtedness notwithstanding the fact that such Senior Indebtedness or
any claim for such Senior Indebtedness is subordinated, void in or disallowed
under the federal Bankruptcy Code or other applicable law. Senior Indebtedness
shall also include any indebtedness of the Company or any Subsidiary of the
Company incurred in connection with a refinancing of the Senior Indebtedness
under the Senior Lending Agreements.
(c) LIQUIDATION; DISSOLUTION; BANKRUPTCY. Upon any payment or
distribution of assets of the Company or any kind or character (whether in cash,
securities or other property) to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar Proceeding relating to the Company or its property:
(i) The holders of Senior Indebtedness shall be entitled to
receive payment in full in cash of all Senior Indebtedness
or such payment shall first be duly provided for in cash
or in a manner satisfactory to the holders of Senior
Indebtedness before Obligee shall be entitled to receive
any payment on this Note; and
(ii) Until the Senior Indebtedness is paid in full in cash or
provided for in a manner satisfactory to the holders of
Senior Indebtedness, any payment or distribution to which
the Obligee would be entitled but for this Section shall be
made to the Agent (as defined below) for application to the
payment of the Senior Indebtedness.
(iii) Notwithstanding the foregoing provisions of this Section,
if the Company shall make any payment or distribution to
the Obligee on account of this Note at a time when such
payment is prohibited by
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this Section, such payment or distribution shall be held by
the Oblige in trust for the ratable benefit of, and shall
be paid forthwith over and delivered to, the Agent for
application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full in accordance with its terms, after
giving effect to any concurrent payment or distribution to
or for the holders of Senior Indebtedness, and the Obligee
irrevocably authorizes, empowers and directs all receivers,
trustees, liquidators, custodians, conservators and others
having authority in the premises to effect all such
payments and distributions, and the Obligee also
irrevocably authorizes, empowers and directs the Agent to
demand, sue for, collect and receive every such payment or
distribution.
(iv) The Obligee agrees to execute, verify, deliver and file any
proofs of claim in respect of the indebtedness evidenced by
this Note requested by the Agent in connection with any
such Proceeding and hereby irrevocably authorizes, empowers
and appoints the Agent as the Company's agent and
attorney-in-fact to (A) execute, verify, deliver and file
such proofs of claim and (B) vote such claim in any such
Proceeding; provided that the Agency shall have no
obligation to execute, verify, deliver, file and/or vote
any such proof of claim.
(d) DEFAULT ON SENIOR INDEBTEDNESS.
(i) Upon the maturity of the Senior Indebtedness by lapse of
time, acceleration (unless waived in writing by the holders
of Senior Indebtedness) or otherwise, all of the Senior
Indebtedness shall first be paid in full, or such payment
duly provided for, in cash or in a manner satisfactory to
the holders of the Senior Indebtedness, before any payment
is made by the Company on account of this Note and, until
all of the Senior Indebtedness is paid in full, any payment
or other distribution to which the Obligee would be
entitled but for the provisions of this Section shall
(unless otherwise required by this Section 2) be made to
the Agent, for application to the payment of the Senior
Indebtedness.
(ii) During the continuance of any default in the payment of any
of the Senior Indebtedness, the Company shall not make any
payment of interest or
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other amounts owing on this Note until such payment default
has been cured by the Company or waived in writing by the
holders of the Senior Indebtedness. Upon any such cure or
waiver, payments may resume, but no interest on this Note
shall accrue during or be paid with respect to the period
for which there is a payment default on the Senior
Indebtedness.
(iii) During the continuance of any other event of default with
respect to the Senior Indebtedness pursuant to which the
maturity thereof may be accelerated, commencing upon
receipt by the Company of written notice from the Agent
specifying that such notice is a payment blockage notice
delivered pursuant to this Section, the Company may not
make any payment of interest or other amounts owing on this
Note for a period ("Payment Blockage Period") commencing on
the date of receipt of such notice and ending one hundred
and eighty (180) days thereafter (unless such Payment
Blockage Period shall be terminated by written notice to
the Company from the Agent). The aggregate duration of all
Payment Blockage Periods for such nonpayment defaults shall
not exceed one hundred eighty (180) days during any period
of three hundred sixty (360) consecutive days. During any
Payment Blockage Period, interest shall continue to accrue
as otherwise provided herein. Upon the termination of any
Payment Blockage Period, payments of interest and/or
principal shall resume as provided in Section 1; provided
that the outstanding principal balance of this Note shall
be increased by the amount of interest that accrued during
such Payment Blockage Period and no interest shall be paid
with respect to said Payment Blockage Period until the
Senior Indebtedness is paid in full in cash and the Credit
Agreement shall have been irrevocably terminated.
(iv) Notwithstanding the foregoing provisions of this Section,
if the Company shall make any payment or distribution to
the Obliee on account of this Note at a time when such
payment is prohibited by this Section, unless otherwise
required by this Section, such payment or distribution
shall by held by Obligee in trust for the ratable benefit
of, and shall be paid forthwith over and delivered to, the
Agent for application to the payment of all of the Senior
Indebtedness remaining unpaid to the extent necessary to
pay all of the Senior
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Indebtedness in full in accordance with its terms, after
giving effect to any concurrent payment or distribution to
or for the holders of the Senior Indebtedness.
(e) SUBROGATION. After all Senior Indebtedness is paid in full and
until this Note is paid in full (but not prior to such time), the Obligee shall
be subrogated to the rights of the holders of Senior Indebtedness to receive
payments and distributions applicable to the Senior Indebtedness to the extent
that payments and distributions otherwise payable to the Obligee have been
applied to the payment of the Senior Indebtedness. A payment or distribution
made under this Section to holders of Senior Indebtedness which otherwise would
have been made to the Obligee is not, as between the Company and the Obligee, a
payment by the Company on Senior Indebtedness, but until such payment is made to
Obligee it is not a payment by the Company to the Obligee.
(f) NO COLLECTION ACTION. Until all of the Senior Indebtedness is paid
in full in cash and all loan commitments under the Credit Agreement have been
irrevocably terminated, the Obligee shall not take any Collection Action with
respect to the indebtedness evidenced by this Note.
(g) RETURN OF PAYMENTS. After all Senior Indebtedness is paid in full,
the provisions of this Section 2 shall be reinstated if at any time any payment
of any of the Senior Indebtedness is rescinded or must otherwise by returned by
any holder of the Senior Indebtedness or any representative of such holder.
(h) NO CHALLENGE TO SENIOR INDEBTEDNESS. The Obligee agrees not to
initiate or prosecute any claim, action or other Proceeding challenging the
enforceability of the Senior Indebtedness or any liens and security interest
securing the Senior Indebtedness, nor will the Obligee file or join in the
filing of an involuntary bankruptcy petition against the Company. The right of
the holders of the Senior Indebtedness to enforce the provisions of this Section
2 shall not be prejudiced or impaired by any or omitted act of the holders of
the Senior Indebtedness or the Company, including without limitation
forbearance, waiver, compromise, amendment, extension, renewal or taking or
release of security in respect of any Senior Indebtedness or noncompliance by
the Company with such provisions, regardless of the actual or imputed
knowledge of the holders of the Senior Indebtedness. In the event that the
Senior Indebtedness is refinanced in full, Obligee agrees at the request of
such refinancing party to enter into a subordination agreement on terms
substantially similar to this Section 2.
(i) MODIFICATIONS TO SENIOR INDEBTEDNESS. The holders of the Senior
Indebtedness may at any time and from time to time without the consent of or
notice to the Obligee, without incurring liability to the Obligee and without
impairing or releasing the
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obligations of the Obligee under this Section 2, change the manner or place of
repayment or extend the time of payment of or renew or alter any Senior
Indebtedness, or amend in any manner any agreement, note, guaranty, security
agreement or other instrument evidencing or securing or otherwise relating to
the Senior Indebtedness.
(j) NO SECURITY FOR NOTE. The Obligee represents that it does not have,
and agrees that it shall not require or obtain, any security interest in the
assets of the Company or any Subsidiary or parent of the Company as security for
the indebtedness evidenced hereby. The Obligee acknowledges that the holders of
the Senior Indebtedness do have a security interest in the assets of the
Company.
(k) NO MODIFICATIONS OF NOTE. Until all of the Senior Indebtedness is
paid in full and all loan commitments under the Credit Agreement have
terminated, without the prior written consent of the Agent, the Obligee shall
not agree to any amendment, modification or supplement to this Note or the
indebtedness evidenced by this Note, including without limitation, any
amendment, modification or supplement the effect of which is to (i) increase the
principal amount hereof or the rate of interest herein, (ii) change the dates
upon which payments of principal or interest hereon are due, (iii) change or add
any event of default, (iv) change the prepayment provisions hereof or (v) alter
the subordination provisions hereof, including without limitation, subordinating
this Note or the indebtedness evidenced hereby to any other debt.
(l) ASSIGNMENT. Until all of the Senior Indebtedness is paid in full
and all loan commitments under the Credit Agreement have terminated, the Obligee
shall not sell, assign, pledge, dispose of or otherwise transfer all or any
portion of this Note or the indebtedness evidenced hereby unless prior to the
consummation of any such action, the transferee thereof shall execute and
deliver to the Agent an agreement providing the continued subordination of this
Note and the indebtedness evidences hereby as provided herein. Notwithstanding
the failure to execute or deliver any such agreement, the subordination effected
hereby shall survive any sale, assignment, pledge, disposition or other transfer
of all or any portion of this Note or the indebtedness evidenced hereby, and the
subordination terms of this Note shall be binding upon the successors and
assigns of the Obligee.
(m) SCOPE OF SUBORDINATION. The provisions in this Section 2 are solely
to define the relative rights of the Obligee and the holders of the Senior
Indebtedness. Nothing in this Section 2 shall impair, as between the Company and
the Obligee, the unconditional and absolute obligation of the Company to
punctually pay the principal, interest, and any other amounts and obligations
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owing to Obligee under the terms of this Note, subject to the rights of the
holders of the Senior Indebtedness under this Note.
(n) CERTAIN DEFINED TERMS. As used herein,
(i) "Agent" means Bank of Boston Connecticut, in its capacity
as agent for the holders of the Senior Indebtedness, or any
successor agent appointed pursuant to the terms of the
Credit Agreement, provided that the Obligee may rely on a
certificate from any such successor agent to the effect
that such successor is acting as a successor agent under
the Credit Agreement.
(ii) "Collection Action" means (A) to demand, sue for, take or
receive form or on behalf of the Company, by set-off or in
any other manner, the whole or any part of any moneys which
may now or hereafter be owing by the Company under this
Note, (B) to initiate or participate with others in any
lawsuit, action, or Proceeding against the Company to (1)
enforce payment of or to collect the whole or any part of
the indebtedness evidenced by this Note, or (2) commence
judicial enforcement of any of the rights and remedies
under this Note or under applicable law with respect to
this Note, or (C) to accelerate any indebtedness evidenced
by this Note.
(iii) "Credit Agreement" means the Credit Agreement dated as of
February __, 1997, among the Company, the Banks from time
to time parties thereto and Bank of Boston Connecticut, as
Agent, as the same hereafter be amended, modified,
supplemented, restated or extended from time to time.
(iv) "Proceeding" means any voluntary insolvency, bankruptcy,
receivership, custodianship, liquidation, dissolution,
reorganization, assignment for the benefit of creditors,
appointment of a custodian, receiver, trustee or other
officer with similar powers or any other proceeding for the
liquidation, dissolution or other winding up of the
Company.
(v) "Senior Lending Agreements" means collectively the Credit
Agreement, the Senior Subordinated Debt Agreements, and the
other loan documents between the Company or any
Subsidiaries of the Company and the holders of Senior
Indebtedness, including without limitation all notes,
pledge agreements, security agreements and guarantees,
together with
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any and all other instruments, documents and agreements
executed and delivered by the Company or any Subsidiary of
the Company from time to time in connection with the Senior
Indebtedness evidenced by the Credit Agreement and such
notes, as the same may hereafter by amended, modified,
supplemented, restated or extended from time to time.
(vi) "Senior Subordinated Debt Agreements" shall mean that
certain Securities Purchase Agreement, dated as of February
__, 1997, by and among the Company, Triumph - Connecticut
Limited Partnership ("Triumph"), Bachow Investment Partners
III, L.P. ("Bachow") and the other parties named therein
(the "Purchase Agreement"), and those certain Senior
Subordinated Notes, due February __, 2002, in an aggregate
principal amount of $25,000,000, issued to each of Triumph
and Bachow pursuant to the Purchase Agreement, and any "put
note" issued by the Company to either Triumph or Bachow
pursuant to the terms of those certain Common Stock
Warrants to Purchase Common Stock of the Company, dated as
of February __, 1997 issued to Triumph and Bachow pursuant
to the Purchase Agreement, as any of the foregoing may
hereafter be amended, modified, supplemented, restated or
extended from time to time.
(vii) "Subsidiary" shall mean, as to any Person, a corporation,
partnership, limited liability company or other entity of
which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other
ownership interest having such power only by reason of the
happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation,
partnership, limited liability company or other entity are
at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more
intermediaries, or both, by such Person.
3. EVENTS OF DEFAULTS AND ACCELERATION.
If for any of the following events shall occur and be continuing for
any reason whatsoever (and whether such occurrence shall be voluntary or
involuntary or come about to be effected by operation of law or otherwise):
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(a) the Company defaults in the payment of the principal of or any
interest on this Note and such default continues for a period of thirty (30)
business days after the date such payment was due; or
(b) the Company shall:
(i) have commenced a voluntary case under Title 11 of the
United States Code as from time to time in effect, or have
authorized, by appropriate proceedings of its board of
directors or other governing body, the commencement of such
a voluntary case;
(ii) have filed an answer or other pleading admitting or failing
to deny the material allegations of a petition filed
against it commencing an involuntary case under said Title
11, or seeking, consenting to or acquiescing in the relief
therein provided, or have failed to controvert timely the
material allegations of any such petition;
(iii) be subject to the entry of an order for relief against it
in any involuntary case commenced under said Title 11 which
remains undischarged or unstayed for more than sixty (60)
days;
(iv) have sought relief as a debtor under any applicable law,
other than said Title 11, of any jurisdiction relating to
the insolvency, liquidation or reorganization of debtors or
to the modification or alteration of the rights of
creditors, or have consented to a aquiesced in such relief;
(v) be subject to the entry of an order by a court of competent
jurisdiction (A) finding it to be bankruptcy or insolvent
or (B) ordering or approving its liquidation,
reorganization or any or any modification or alteration of
the rights of its creditors which remains undischarged or
unstayed for more than sixty (60) days;
(vi) be subject to the entry of an order by a court of competent
jurisdiction assuming custody of, or appointing a receiver
or other custodian for, all or a substantial part of its
property which remains undischarged or unstayed for more
than sixty (60) days; or
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(vii) have entered into a composition with its creditors or have
appointed or consented to the appointment of a receiver of
other custodian for all or a substantial part of its
property.
then the Obligee may, subject to the provisions of Section 2, by providing (10)
days written notice to the Company, declare the Company to be in default
hereunder (an "Event of Default") and may exercise any right, power or remedy
permitted to such holder or holders by law, including, without limitation:
(y) the right to declare the entire principal amount of this
Note and accrued interest thereon, if any, due and
payable; and
(z) the right to commence any proceeding against the Company in
furtherance of the foregoing.
4. COMPLIANCE WITH USURY LAWS.
All agreements between the Company and the Obligee are hereby
expressly limited so that in no contingency or event whatsoever, whether by
reason of acceleration of maturity of the Indebtedness evidenced hereby or
otherwise, shall the amount paid or agreed to be paid to the Obligee for the
use, forbearance or detention of the Indebtedness evidenced hereby exceed the
maximum permissible under the applicable law. As used herein, the term
"applicable law" shall mean the law in effect as of the date hereof, provided,
however, that in the event there is a change in the law which results in a
higher permissible rate of interest, then this Note shall by governed by such
new law as of its effective date. If, from any circumstances whatsoever,
fulfillment of any provision hereof at the time performance of such provision
shall be due, shall involve transcending the limit of validity prescribed by
law, then the obligation to be fulfilled shall automatically be reduced to the
limit of such validity, and if from any circumstances the Obligee should ever
receive as interest an amount which would exceed the highest lawful rate, such
amount which would be excessive interest shall be applied to the reduction of
the principal balance evidenced hereby and not to the payment of interest. This
provision shall control every other provision of all agreements between the
Company and the Obligee.
5. NOTICES.
All notices, requests, demands and other communications hereunder shall
be in writing, shall be deemed to have been duly given when delivered at or
telecopied to the address specified below and shall be delivered by overnight
delivery service or hand delivered, addressed or telecopied as follows:
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If to Obligee:
c/o OutSource International, Inc.
1144 East Newport Center Drive
Deerfield Beach, Florida 33487
Telecopier No.: (954) 418-3365
If to Company:
c/o OutSource International, Inc.
Attention: CEO
1144 East Newport Center Drive
Deerfield Beach, Florida 33487
Telecopier No.: (954) 418-3365
6. GOVERNING LAW.
This Note shall have the effect of an instrument executed under seal
and shall be governed by and construed in accordance with the laws of the State
of Florida. The sole venue for any action arising hereunder shall be Broward
County, Florida.
7. WAIVER OF TRIAL BY JURY.
THE COMPANY AND OBLIGEE HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT EITHER MAY HAVE TO A TRAIL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE COMPANY OR OBLIGEE.
8. ATTORNEY'S FEES AND COSTS.
The Company agrees to pay all reasonable expenses and costs,
including, without limitation, attorney's fees and costs of collection, which
may be incurred by the Obligee in connection with the enforcement of any
obligations hereunder or in connection with representation with respect to
bankruptcy or insolvency Proceedings.
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IN WITNESS WHEREOF, the Company has caused this Note to be executed
under seal by its duly authorized officer as of the date set forth above.
CAPITAL STAFFING FUND, INC.
By: /s/ PAUL BURRELL
-----------------
Name: Paul Burrell
Title: President
AGREED AND ACCEPTED:
OBLIGEE
By: /s/ PAUL M. BURRELL
--------------------
Paul M. Burrell
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