EXHIBIT 1
INTERCREDITOR AGREEMENT
AGREEMENT ("Agreement"), dated as of June 5, 2001, by and among Links
Partners, LP, a Bahamian exempted limited partnership ("Links"), Inland
Partners, LP, a Bahamian exempted limited partnership ("Inland"), CSFB Global
Opportunities Partners, L.P., a Delaware limited partnership ("Global"), and
CSFB Global Opportunities Partners (Bermuda), L.P., a Bermuda exempted limited
partnership ("Global-Bermuda" and, together with Links, Inland and Global, the
"Investors").
W I T N E S S E T H :
WHEREAS, each of the Investors desires to purchase outstanding 5 3/4%
Convertible Subordinated Notes, due July 2004 (the "Notes"), of Personnel Group
of America, Inc., a Delaware corporation (the "Company"); and
WHEREAS, the Investors desire to enter into this Agreement in order to
govern, among other things, the acquisition, disposition and conversion of the
Notes, and the voting of the shares of capital stock of the Company (the
"Capital Stock").
NOW, THEREFORE, in consideration of the above premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Purchase of Notes; Appointment of Purchasing Agent.
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(a) Each Investor, severally but not jointly, agrees, subject to the terms
and conditions of this Agreement, to purchase Notes having an aggregate purchase
price of up to the amount set forth opposite such Investor's name on Schedule I
hereto. All purchases of the Notes shall be effected by a purchasing agent on
behalf of the Investors who shall initially be Special Situations Holdings
Limited - XI (the "Purchasing Agent"). Concurrently with the execution and
delivery of this Agreement, the Investors and the Purchasing Agent will enter
into a letter agreement setting forth the terms of the Purchasing Agent's
engagement, which agreement shall be in the form and on the terms and conditions
set forth on Exhibit A hereto (the "Agency Agreement"). If the Purchasing Agent
resigns, terminates its agency or otherwise becomes unable to perform its duties
under the Agency Agreement, Global shall appoint a successor Purchasing Agent
subject to the approval of Links and Inland which approval will not be
unreasonably withheld.
(b) All Notes purchased by the Purchasing Agent, on behalf of the
Investors, shall be purchased (i) pro rata for the account of each Investor on
the basis of the percentages set forth opposite the Investors' names on Schedule
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I hereto, (ii) at a purchase price not to exceed 50% of the then outstanding
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principal amount of such Notes, and (iii) on the same terms as to each Investor.
The Purchasing Agent shall promptly deliver notice to the Investors of each
purchase of Notes made in accordance with the terms of this
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Agreement and the Agency Agreement. Each Investor shall, within three days of
its receipt of such notice, pay the purchase price for the Notes purchased for
its account by wire transfer of immediately available funds to an account
designated by the Purchasing Agent in such notice.
(c) Notwithstanding any provision in this Agreement or the Agency Agreement
to the contrary, none of the following actions may be taken, directly or
indirectly, without, in each case, the unanimous written consent of the
Investors:
(i) Any acquisition of Notes that would result in the Investors
acquiring, either individually or as a group, beneficial ownership, directly or
indirectly, of five percent (5%) or more of the Capital Stock.
(ii) Any acquisition of Notes that would result in the Investors
acquiring, either individually or as a group, beneficial ownership, directly or
indirectly, of ten percent (10%) or more of the Capital Stock.
(iii) Any acquisition of Notes that would result in the Investors
acquiring, either individually or as a group, beneficial ownership, directly or
indirectly, of fifteen percent (15%) or more of the Capital Stock.
(iv) Any acquisition of Notes in any manner, or any other action,
that would constitute a tender offer for the Capital Stock within the scope of
Section 14(d) of the Exchange Act and Regulation 14D promulgated thereunder.
(v) Conversion of any Notes into Capital Stock.
For purposes of this Agreement, the term "beneficial ownership" or any
derivative thereof shall have the meaning assigned to that term in Rule 13d-3
promulgated under the United States Securities Exchange Act of 1934, as amended.
2. Payment; Retirement; Exercise of Remedies.
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(a) Payment. Any Payment or Distribution (as such terms are hereinafter
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defined) in respect of the Notes shall be paid pro rata among the Investors
based upon the principal amount of the Notes then held by the Investors. In
furtherance of, and not in limitation of, the other provisions of this
Agreement, any reference in this Agreement to "Payment" or "Distribution" in
respect of the Notes shall include, without limitation, any direct or indirect
payment of principal or interest with respect thereto (including, without
limitation, in connection with any mandatory or optional prepayment provisions);
any direct or indirect payment or recovery on any claim as a holder relating to
or arising out of any Note, or any interest therein, in each case by or on
behalf of the Company from any source of any kind or character, by set-off or
otherwise; and any payment on account of mandatory or optional prepayment or
redemption provisions or any payment made in connection with the retirement of
or purchase and sale of any of the Notes by the
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Company from the holder thereof out of any direct or indirect depositing of
funds for the defeasance of any of the Notes, any sinking fund or otherwise.
(b) Ratable Retirement or Acquisition of Notes. Without the prior unanimous
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written consent of the Investors, no Investor shall accept any prepayment,
redemption, or other purchase, retirement or acquisition, directly or
indirectly, of any Note.
(c) Regularly Scheduled Payments. Notwithstanding any provision in Section
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2(b) to the contrary, regularly scheduled payments of principal and interest due
under the Notes and mandatory prepayment and redemption shall be permitted
provided they are made in compliance with Section 2(a) of this Agreement.
(d) Limitation on Remedies. The Investors agree among themselves that,
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without the unanimous written consent of the Investors, none of the Investors
may:
(i) declare, or join in the declaration by any person or entity
("Person") of, any Notes to be due and payable prior to the maturity thereof or
otherwise accelerate the maturity of the principal of any Notes, accrued
interest thereon or other amounts due thereunder or with respect thereto; or
(ii) take any other action against the Company in connection with the
Notes, including, without limitation, commencing any administrative, legal or
equitable action against the Company (including, without limitation, filing and
joining in the filing of any insolvency petition against the Company).
Notwithstanding any provisions contained herein to the contrary, any Investor
may take any action to the extent necessary in order to toll the running of any
applicable statute of limitations that might otherwise prevent such Investor
from making claims in respect of, or to otherwise preserve such Investor's
rights with respect to, the Notes.
(e) Amendments of Notes and Related Documents. Notwithstanding any
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provision in any Note or any document governing the Notes, including, without
limitation, any indenture (collectively, the "Loan Documents"), to the contrary,
no Investor shall agree to any amendment, supplement or modification of or to
any provision in any Loan Document, or any waiver of any such provision or
consent to any departure by any party from the terms of any such provision
without the unanimous written consent of the Investors.
(f) Excess Payments and Distributions Received. Notwithstanding any
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provision in this Agreement to the contrary, no Investor shall be deemed to have
breached its obligations under Section 2 of this Agreement if a Payment or
Distribution is made with respect to any of its Notes held by such Investor,
provided such Payment or Distribution was made other than by reason of the
election or request of such Investor. If an Investor shall have received any
Payment or Distribution of cash, securities or other assets in respect of the
Notes in contravention of the terms of this Agreement or otherwise not on a pro
rata basis as contemplated by Section 2(a) (any such Payment or Distribution,
shall be referred to as an "Excess Payment"), then and in such event such Excess
Payment shall be received and held in trust for and shall be promptly paid over
or delivered to the Investors entitled to such Excess Payment in such amounts
and
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proportions in accordance with and pursuant to the terms of this Agreement. If,
after an Investor (the "Payor Investor") shall have paid any Excess Payment to
another Investor (each such Investor shall be referred to as a "Payee Investor")
pursuant to this Section 2(f), such Excess Payment shall have been rescinded or
must otherwise be returned by the Payor Investor, in whole or in part, because
of the insolvency, bankruptcy or reorganization of the Company or for any
similar reason, then each such Payee Investor shall repay to the Payor Investor
an amount equal to such Payee Investor's pro rata portion of the Excess Payment
that has been so rescinded or must otherwise be returned, together with any
interest due thereon. For purposes of this Section 2(f) the "pro rata portion"
of the Excess Payment that shall be required to be returned by a Payee Investor
shall equal the amount of the Excess Payment that has been so rescinded or must
otherwise be returned multiplied by a fraction, the numerator of which shall be
the amount of the Excess Payment paid by the Payor Investor to such Payee
Investor and the denominator of which is the aggregate amount of the Excess
Payment paid by the Payor Investor to all Payee Investors. The Investors shall
transfer their interests in the Notes, Capital Stock or other instruments, as
applicable, as may be necessary in connection with such payments or repayments.
3. Transactions with Company. None of the Investors, their respective
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Affiliates (as defined below), nor any of their respective officers, directors,
employees or agents, shall, without the unanimous written consent of the
Investors, directly or indirectly, effect any transaction whatsoever, or engage
in any discussions or negotiations, with the Company and/or its officers,
directors, employees and agents, other than as specifically provided for in this
Agreement. Without limiting the foregoing, none of the Investors nor their
respective Affiliates shall, directly or indirectly (including through any
officer, director, employee or agent):
(i) purchase or otherwise acquire beneficial ownership of any
Notes, shares of Capital Stock or other debt or equity securities of the Company
except as provided under this Agreement;
(ii) acquire any assets of the Company;
(iii) solicit, initiate or participate in any way in discussions or
negotiations with, or provide any information or assistance to, or enter into
any agreement with the Company;
(iv) sell or transfer any assets to the Company; or
(v) assist or participate in, facilitate or encourage any effort or
attempt by any other Person to do or seek to do any of the foregoing.
For purposes hereof, "Affiliate" shall mean, with respect to an entity, another
Person controlling, controlled by, or under common control with, such entity.
For the avoidance of doubt, none of Credit Suisse Group and its subsidiaries
(collectively, the "CS Entities") are (nor shall any be deemed to be) Affiliates
of Global or Global-Bermuda unless such CS Entity shall have acquired, either
individually or as a group, beneficial ownership, directly or indirectly (other
than solely by reason of it being a limited partner of Global or
Global-Bermuda), of any of the Notes or shares of Capital Stock beneficially
owned, either individually or as a group, by Global or Global-Bermuda.
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4. Voting. The Investors shall vote all shares of Capital Stock, directly or
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indirectly, beneficially owned by them, as unanimously agreed upon by the
Investors.
5. Transfer of Notes and Capital Stock.
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(a) General. No Investor shall sell or otherwise transfer any of its Notes
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or shares of Capital Stock to any Person (other than to another Investor) except
pursuant to the provisions of this Section 5. Any purported sale or other
transfer in violation of this Section 5 shall be null and void ab initio.
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(b) Notice and Offer Related To Proposed Transfer. If at any time any
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Investor (a "Selling Investor") shall desire to sell all or any portion of its
Notes (or all or any portion of its shares of Capital Stock) to an unaffiliated
third party (other than to another Investor), whether in a privately negotiated
transaction or on the open market (the "Proposed Transfer"), the Selling
Investor shall deliver a written offer (the "Offer") to the non-Selling
Investors to sell such Notes or shares of Capital Stock (the "Offered
Securities") to the non-Selling Investors on terms and conditions, including
price, not less favorable to the non-Selling Investors than the terms and
conditions of the Proposed Transfer. The Offer shall disclose the identity of
the proposed transferee (or that the Proposed Transfer is to be effected in an
unsolicited brokers' transaction on the open market), the principal amount
and/or number of Offered Securities proposed to be sold, the terms and
conditions, including price (which, in the case of an open market sale, may
refer to the prevailing price at the time of sale), of the proposed sale, and
any other material facts relating to the proposed sale. The Offer shall further
state that the non-Selling Investors may acquire all, but not less than all, of
the Offered Securities or participate in the sale of the Offered Securities, in
each case pro rata as provided in this Agreement.
(c) Right of First Refusal on Dispositions.
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(i) The non-Selling Investors shall have the right, exercisable
within five business days of their receipt of the Offer, to acquire all, but not
less than all, of the Offered Securities, for the price and upon the other terms
and conditions set forth in the Offer. If the Selling Investor is (A) either
Links or Inland, then Global shall have the right to purchase 57 1/3% of the
Offered Securities, Global-Bermuda shall have the right to purchase 9 1/3% of
the Offered Securities and the other non-Selling Investor shall have the right
to purchase 33 1/3% of the Offered Securities, (B) Global, Links shall have the
right to purchase 43.86% of the Offered Securities, Inland shall have the right
to purchase 43.86% of the Offered Securities and Global-Bermuda shall have the
right to purchase 12.28% of the Offered Securities, or (C) Global-Bermuda, Links
shall have the right to purchase 26.88% of the Offered Securities, Inland shall
have the right to purchase 26.88% of the Offered Securities and Global shall
have the right to purchase 46.24% of the Offered Securities, provided that, in
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any case, the non-Selling Investors may allocate the number of Offered
Securities to be purchased by them as they may otherwise agree (it being
understood that the right to purchase Offered Securities pursuant to this
Section 5(c) may be exercised only if one or more of the non-Selling Investors
purchase all, but not less than all, of the Offered Securities).
(ii) Each non-Selling Investor who elects to exercise its right to
purchase Offered Securities shall deliver both a written and a telephonic notice
to the Selling Investor ("Notice of Election")
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and to the other non-Selling Investor within five business days after receipt by
such non-Selling Investor of the Offer (provided, however, that any failure by a
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non-Selling Investor to give telephonic notice shall not render a written Notice
of Election invalid). If the Selling Investor is (A) either Global or
Global-Bermuda, and Global-Bermuda or Global, as the case may be, does not elect
to purchase its portion of the Offered Securities as contemplated in clause (i)
above, then each of Links and Inland shall have the option, exercisable by so
specifying in its Notice of Election, to purchase all, but not less than all, of
the Offered Securities not purchased by Global or Global-Bermuda, as the case
may be, in such proportions as Links and Inland shall agree, or (B) either Links
or Inland, and Inland or Links, as the case may be, does not elect to purchase
its portion of the Offered Securities as contemplated in clause (i) above, then
each of Global and Global-Bermuda shall have the option, exercisable by so
specifying in its Notice of Election, to purchase all, but not less than all, of
the Offered Securities not purchased by Inland or Links, as the case may be, in
such proportions as Global and Global-Bermuda shall agree. The Notice of
Election shall, when taken in conjunction with the Offer, be deemed to
constitute a valid, legally binding and enforceable agreement for the sale and
purchase of the Offered Securities specified in the Notice of Election. Subject
to Section 5(d) below, the sale of such Offered Securities to be sold to the
non-Selling Investors pursuant to this Section 5(c) shall be made within 15 days
following the date of the Notice of Election. If, prior to the date on which the
sale of the Offered Securities to any non-Selling Investor pursuant to this
Section 5(c) shall take place, any of such Offered Securities shall have been
redeemed or otherwise acquired by the Company or any of its Affiliates, then
such non-Selling Investor shall have the right (without limiting any other
rights or remedies that such non-Selling Investor may have) to either (i)
terminate its obligation to purchase such Offered Securities or (ii) pay the
purchase price that such non-Selling Investor was otherwise obligated to pay for
such Offered Securities in exchange for the proceeds that the Selling Investor
receives in connection with such redemption or acquisition.
(iii) Subject to Section 5(d) below, if one or more of the non-Selling
Investors do not give such Notice of Election to purchase all of the Offered
Securities within such five business day period, the Selling Investor may sell
all, but not less than all, of the Offered Securities at any time within 45 days
after the date the Offer was made. Subject to Section 5(d) below, any such sale
shall be to the transferee specified in the Offer or made in the open market,
and at not less than the price, and upon other terms and conditions not more
favorable to the acquiror than those, specified in the Offer. If such sale is
not consummated within such 45-day period, the Offered Securities will not be
sold unless they are re-offered to the non-Selling Investors in accordance with
the provisions of this Section 5.
(d) Right of Co-sale.
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In the event that the Selling Investor shall sell Offered Securities
subject to the Offer to a Person (other than a non-Selling Investor) as
contemplated by Section 5(c), each of the non-Selling Investors shall have been
afforded the right (the "Co-Sale Right") (and no such sale shall be made unless
and until each such non-Selling Investor has been afforded such right),
exercisable upon both a written and a telephonic notice to the Selling Investor
within five business days after receipt of the Offer (provided, however, that
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any failure by a non-Selling Investor to give telephonic notice shall not render
any such written notice invalid), to participate in the sale of the Offered
Securities at the same time and on the same terms and
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conditions under which the Selling Investor will sell the Offered Securities. In
connection therewith, each such non-Selling Investor may sell all or any part of
that (i) principal amount of Notes held by such non-Selling Investor equal to
the product obtained by multiplying (x) the aggregate principal amount of Notes
proposed to be sold by the Selling Investor pursuant to the Offer by (y) a
fraction the numerator of which is the aggregate principal amount of Notes at
the time owned by such non-Selling Investor and the denominator of which is the
aggregate principal amount of Notes then owned by all Investors and (ii) number
of shares of Capital Stock equal to the product obtained by multiplying (x) the
aggregate number of shares of Capital Stock proposed to be sold by the Selling
Investor pursuant to the Offer by (y) a fraction the numerator of which is the
aggregate number of shares of Capital Stock at the time owned by such
non-Selling Investor and the denominator of which is the number of shares of
Capital Stock then owned by all Investors. To the extent that any non-Selling
Investor participates in the subject sale of Offered Securities hereunder, the
Selling Investor shall be required to reduce the portion of its Notes and/or
shares of Capital Stock included in the Offered Securities. In exercising its
Co-Sale Right hereunder, each non-Selling Investor must sell the same class or
series of securities proposed to be sold by the Selling Investor. If the sale to
a Person (other than a non-Selling Investor) of Offered Securities subject to
the Offer is not consummated within the 45-day period contemplated in Section
5(c), the Offered Securities will not be sold unless they are re-offered to the
non-Selling Investors in accordance with the provisions of this Section 5.
(e) Failure to Purchase/Participate. In the event that the Selling
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Investor shall have complied with its obligations under this Section 5, and any
non-Selling Investor defaults in its obligations to consummate the acquisition
or sale of the Offered Securities as provided in this Section 5 after giving
notice thereof, without limiting any other rights the Selling Investor may have
against such non-Selling Investor, the Selling Investor shall thereafter no
longer be obligated to comply with the provisions of this Section 5 with respect
to any sale or transfer of such Offered Securities.
6. Confidentiality. The parties agree that all information shared in connection
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with this Agreement and the purchase of Notes, and any other information of
which any party may become aware in connection herewith, shall be kept
confidential by each of the parties hereto and shall not be disclosed by any
party except that each Investor shall be permitted to disclose information (i)
to such of its Affiliates, officers, directors, employees, advisors, agents and
representatives as may need to know such information in connection with the
transactions contemplated hereby (provided that such Affiliates, officers,
directors, employees, advisors, agents and representatives are bound by terms of
confidentiality substantially the same as set forth herein); (ii) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, or requested by any regulatory or governmental authority or examiner;
(iii) to the extent such information (A) is or becomes publicly available other
than as a result of a breach of this Agreement or (B) is or becomes available to
such Investor on a non-confidential basis from a Person other than the other
parties hereto, which Person is not, to the recipient's knowledge, in breach of
an obligation of confidentiality with respect thereto; (iv) to any Person in
connection with any legal proceeding to which such Investor is a party; or (v)
to each of the other Investors. Each party shall be entitled to equitable
relief, including injunctive relief, for any breach of this Section 6. The
obligations of this Section 6 shall survive any termination of this Agreement
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7. Representations and Warranties. Each of the Investors represents, severally
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and not jointly, as to itself and not as to any other Investor as follows:
(i) The execution, delivery and performance by such Investor of this
Agreement are within such party's corporate or partnership (as the case may be)
powers and does not contravene any material contractual restriction, law or
governmental regulation or court decree or order binding on or affecting such
party.
(ii) This Agreement constitutes a legal, valid and binding obligation
of each Investor, enforceable in accordance with its terms (subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing).
(iii) On the date hereof, neither it nor any of its Affiliates,
directly or indirectly, beneficially owns any Notes, shares of Capital Stock or
other debt or equity securities of the Company.
8. Obligations Hereunder Not Affected. All rights and interests of the Investors
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under this Agreement, and all agreements and obligations of the Investors
hereunder, shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any document evidencing or
relating to the Notes or the shares of Capital Stock;
(b) any change in the time, manner or place of payment of, or any other term
of, all or any of the Notes, or any other amendment or waiver of or any consent
to departure from any of the documents evidencing or relating to the Notes or
the shares of Capital Stock (whether or not effected in accordance with the
provisions of this Agreement);
(c) any failure of any Investor to assert any claim or to enforce any right
or remedy against any other party hereto under the provisions of this Agreement
or any other document evidencing or relating to the Notes or the shares of
Capital Stock;
(d) any conversion of the Notes into Capital Stock; and
(e) any reduction, limitation, impairment or termination of the Notes for any
reason (other than the payment in full of all of the Notes), including, without
limitation, any claim of waiver, release, surrender, alteration or compromise,
and shall not be subject to any defense (other than the defense of payment in
full of the Notes) or set off, counterclaim, recoupment or termination
whatsoever by reason of invalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of, or any other event or occurrence affecting, any
Notes or shares of Capital Stock.
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9. Termination. This Agreement shall terminate on the earlier of (i) the mutual
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agreement of the Investors and (ii) July 1, 2005.
10. Notices. All notices, demands and other communications provided for or
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permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopier (with receipt
confirmed), courier service or personal delivery:
(a) if to Links:
Links Partners, LP
00 Xxxxxx Xxxxxx, 0/xx/ Xxxxx
Xxxxxxxx XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
Xxxxxxxx Xxxxx
with a copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile (000) 000-0000
Attention: Xxxxx Xxxxx, Esq.
(b) if to Inland:
Inland Partners, LP
00 Xxxxxx Xxxxxx, 0/xx/ Xxxxx
Xxxxxxxx XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
Xxxxxxxx Xxxxx
with a copy to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile (000) 000-0000
Attention: Xxxxx Xxxxx, Esq.
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(c) if to Global or Global-Bermuda:
CSFB Global Opportunities Partners, L.P.
or CSFB Global Opportunities Partners (Bermuda), L.P.
c/o Hemisphere Global Opportunities Partners, Ltd.
Xxxxxxxxxx Xxxxx
Xxxx Xxxxxx Xxxxxx
X.X. Xxx XX 000
Hamilton HM11
Hamilton, Bermuda
Facsimile (000) 000-0000
Attention: Xxxxx Xxxxxx
with a copy to:
CSFB Global Opportunities Advisers, LLC
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
and a copy to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; when
delivered by courier, if delivered by commercial overnight courier
service; or if telecopied, when receipt is acknowledged.
11. No Partnership, Etc. Nothing contained herein shall be deemed to (i) make
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any party or any employee of such party the agent, employee, joint venturer or
partner of any other party or (ii) except as specifically set forth herein,
provide any party or any employee of such party with the power or authority to
act on behalf of the other party or to bind the other party to any contract,
agreement or arrangement with any other Person.
12. Entire Agreement; Severability. This Agreement is intended by the parties as
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a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the
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parties hereto in respect of the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter. If any terms or provisions of the Agency
Agreement conflicts or is otherwise inconsistent with any terms or provisions of
this Agreement, the terms and provisions of this Agreement shall govern. There
are no restrictions, promises, warranties or undertakings in respect of the
subject matter contained herein, other than those set forth or referred to
herein. If any of the provisions of this Agreement shall be held invalid or
unenforceable, this Agreement shall be construed as if not containing those
provisions, and the rights and obligations of the parties hereto shall be
construed and enforced accordingly.
13. Continuing Agreement; No Assignment; No Third Party Beneficiaries. This
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Agreement shall remain in full force and effect or until terminated pursuant to
Section 9 hereof. None of the Investors may assign or otherwise transfer its
rights or obligations hereunder. This Agreement is not intended to confer upon
any Person other than the parties hereto any rights or remedies hereunder.
14. Further Actions. Each of the Investors will, at its own expense, and at any
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time and from time to time, promptly execute and deliver all further instruments
and documents and take all further actions (including, without limitation,
obtaining any consents, exemptions or authorizations) that may be necessary in
order to protect any right or interest granted or purported to be granted
hereunder or to enable each of the Investors to exercise and enforce its rights
and remedies hereunder.
15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED IN ACCORDANCE
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WITH, AND ENFORCED UNDER, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS OR INSTRUMENTS ENTERED INTO AND PERFORMED ENTIRELY WITHIN SUCH STATE.
16. Forum Selection and Consent to Jurisdiction EACH PARTY TO THIS AGREEMENT
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HEREBY IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THE NOTES OR THE SHARES OF CAPITAL STOCK OR ANY
AGREEMENTS OR TRANSACTIONS RELATING THERETO MAY BE BROUGHT IN THE COURTS OF THE
STATE OF NEW YORK LOCATED IN NEW YORK COUNTY OR OF THE UNITED STATES OF AMERICA
FOR THE SOUTHERN DISTRICT OF NEW YORK AND HEREBY EXPRESSLY SUBMITS TO THE
PERSONAL JURISDICTION AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF AND
EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM THAT SUCH COURTS ARE
AN INCONVENIENT FORUM. EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO ITS ADDRESS SET FORTH IN SECTION 10, SUCH SERVICE TO BECOME
EFFECTIVE 10 DAYS AFTER SUCH MAILING.
17. Amendments, Waivers. No amendment, modification, supplement or waiver of any
-------------------
provision of this Agreement nor consent or any departure by the Investors
herefrom shall in any event be effective unless the same shall be in writing and
signed by all of the Investors and for the specific purpose for which given.
11
Any waiver, forbearance, failure or delay by an Investor in exercising, or the
exercise or beginning of exercise by an Investor of, any right, power or remedy,
simultaneous or later, shall not preclude the further, simultaneous or later
exercise thereof, and every right, power or remedy of an Investor shall continue
in full force and effect until such right, power or remedy is specifically
waived in a writing executed by such Investor.
18. Signatures; Execution in Counterparts. Telefacsimile transmissions of any
-------------------------------------
executed original document and/or retransmission of any executed telefacsimile
transmission shall be deemed to be the same as the delivery of an executed
original. At the request of any party hereto, the other parties hereto shall
confirm telefacsimile transmissions by executing duplicate original documents
and delivering the same to the requesting party or parties. This Agreement may
be executed in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first above written.
LINKS PARTNERS, LP
By: Coryton Management Ltd., its general partner
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxx Xxxxx
Title: President
INLAND PARTNERS, LP
By: Coryton Management Ltd., its general partner
By: /s/ Xxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxx Xxxxx
Title: President
CSFB GLOBAL OPPORTUNITIES PARTNERS, L.P.
By: Hemisphere Global Opportunities Partners, Ltd.
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: Director
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
-----------------------------------------
CSFB GLOBAL OPPORTUNITIES PARTNERS
(BERMUDA), L.P.
By: Hemisphere Global Opportunities
Partners, Ltd.
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: Director and Vice President
[SIGNATURE PAGE TO INTERCREDITOR AGREEMENT]
-----------------------------------------
Schedule I
Investor Aggregate Purchase Price of Notes Percentage
-------- --------------------------------- ----------
Links Partners, LP $12,500,000 25%
Inland Partners, LP $12,500,000 25%
CSFB Global Opportunities
Partners, L.P. (a Delaware
limited partnership) $21,500,000 43%
CSFB Global Opportunities
Partners, L.P. (a Bermuda
exempted limited
partnership) $3,500,000 7%
Exhibit A
AGENCY AGREEMENT
SPECIAL SITUATIONS HOLDINGS LIMITED - XI
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
July 16, 2001
Links Partners, LP
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx XX 00000
Attention: Xxxxxx Xxxxxx/Xxxxxxxx Xxxxx
Inland Partners, LP
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx XX 00000
Attention: Xxxxxx Xxxxxx/Xxxxxxxx Xxxxx
CSFB Global Opportunities Partners, L.P.
c/o Hemisphere Global Opportunities Partners, Ltd.,
Hemisphere House, Nine Church Street,
X.X. Xxx XX 000, Xxxxxxxx XX00,
Xxxxxxxx, Xxxxxxx
Xxxxxxxxx: Xxxxx Xxxxxx
CSFB Global Opportunities Partners (Bermuda), L.P.
c/o Hemisphere Global Opportunities Partners, Ltd.,
Hemisphere House, Nine Church Street,
X.X. Xxx XX 000, Xxxxxxxx XX00,
Xxxxxxxx, Xxxxxxx
Xxxxxxxxx: Xxxxx Xxxxxx
Re: Special Situations Holdings Limited - XI
----------------------------------------
Ladies and Gentlemen:
Reference is made to the Intercreditor Agreement, dated as of May ___,
2001 (the "Intercreditor Agreement") by and among CSFB Global Opportunities
-----------------------
Partners, L.P., a Delaware limited liability partnership ("Global"), CSFB Global
------
Opportunities Partners (Bermuda), L.P., a Bermuda exempted limited partnership
("Global Bermuda"), Links Partners, LP, a Bahamian exempted limited partnership
--------------
("Links"), and Inland Partners, LP, a Bahamian exempted limited partnership
-----
("Inland" and together with Links, Global and Global Bermuda, the "Investors").
------ ---------
This letter (this "Letter Agreement") sets forth the terms of the engagement of
----------------
Special Situations Holdings Limited - XI as purchasing agent on behalf of the
Investors (the "Purchasing Agent") referred to in the Intercreditor Agreement.
----------------
The Purchasing Agent hereby agrees that it shall, at the direction of
Global (or its investment adviser) from time to time, purchase 5 3/4%
Convertible Subordinated Notes, due July 2004 (the "Notes") of Personnel Group
-----
of America, Inc. (at a purchase price not to exceed 50% of the then outstanding
principal amount of such Notes). Each such purchase shall be (i) for the account
of the Investors pro rata on the basis of the following percentages: 25% for
Links, 25% for Inland and 43% for Global and 7% for Global Bermuda, respectively
and (ii) on the same terms as to each Investor. The Purchasing Agent shall
deliver notice to each Investor of each purchase of Notes made in accordance
with the terms hereof which notice shall set forth the aggregate amount of the
purchase price therefor, each Investor's pro rata portion thereof and payment
instructions for such amount.
Each Investor hereby agrees to promptly, and in any event within three
(3) business days of its receipt of notice of purchase from the Purchasing
Agent, pay the Purchasing Agent the purchase price for the Notes purchased for
its account by wire transfer of immediately available funds to an account
designated by the Purchasing Agent in such notice. Upon receipt by the
Purchasing Agent of payment in full from an Investor, the Purchasing Agent shall
transfer (or cause to be transferred) such Notes to the account of such
Investor.
Any payment not received by the Purchasing Agent when due shall accrue
interest at the rate of interest equal to the rate of interest announced
publicly from time to time by The Chase Manhattan Bank as its "base rate" or
"prime rate" for dollar loans (which rate shall not necessarily be its lowest
rate) in effect in New York City.
The Purchasing Agent or the Investors may terminate their respective
obligations under this Letter Agreement at any time upon written notice to the
parties hereto; provided, that all obligations of the Purchasing Agent or the
--------
Investors, as the case may be, then outstanding hereunder shall remain
outstanding notwithstanding such termination.
This Letter Agreement shall be governed by, and construed in accordance
with, and enforced under, the laws of the State of New York as applied to
agreements and instruments entered into and performed entirely within such state
without giving effect to the principles and conflicts of laws thereof. To the
fullest extent permitted by applicable law, each Investor and the Purchasing
Agent hereby irrevocably submits to non-exclusive jurisdiction of the courts of
the State of New York located in New York county or of the United States of
America for the Southern District of New York in respect of any suit, action or
proceeding arising out of or relating to the provisions of this Letter Agreement
and irrevocably agrees that all claims in respect of any suit, action or
proceeding may be heard and determined in any such court. Each of the Investors
and the Purchasing Agent waives, to the fullest extent permitted by applicable
law, trial by jury, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceedings, brought in any such
court, and any claim that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum. Each of the Investors and
the Purchasing Agent hereby irrevocably consents to the service of
2
process of any of the aforementioned courts in any suit, action or proceeding by
the mailing of copies thereof by registered or certified mail, postage prepaid,
to it address set forth above, in the case of the Investors, and to the address
set forth in the immediately following sentence in the case of the Purchasing
Agent, such service to become effective 10 (ten) days after such mailing. The
address of the Purchasing Agent is Special Situations Holdings Limited - XI,
c/o 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Xxxxx Xxxxxxxx/
Xxxxx Xxxxxxx.
This letter is not intended to create a fiduciary relationship among
the parties hereto. This Letter Agreement may not be amended, modified,
supplemented or waived unless the same shall be in writing and signed by all the
Investors and the Purchasing Agent. Neither the Investors nor the Purchasing
Agent may assign, transfer or pledge its respective rights or obligations under
this Letter Agreement without the prior written consent of each of the Investors
and the Purchasing Agent, and any attempted assignment in contravention of this
provision shall be null and void. Telefacsimile transmissions of any executed
original document and/or retransmission of any executed telefacsimile
transmission shall be deemed to be the same as the delivery of an executed
original. This Letter Agreement may be executed in counterparts, each of which
shall be an original, and all of which, when taken together, shall constitute
one and the same Letter Agreement. This agreement is subject to the terms of the
Intercreditor Agreement (including, without limitation, the restrictions set
forth in Sections 1(b) and 1(c) thereto), a copy of which has been delivered by
Global to the Purchasing Agent.
3
If the foregoing is in accordance with your understanding,
please sign and return a copy of this Letter Agreement to the Purchasing Agent,
and upon our receipt of fully executed copies of this Letter Agreement, this
Letter Agreement shall constitute a binding agreement among the Purchasing Agent
and each of the Investors.
Very truly yours,
SPECIAL SITUATIONS HOLDINGS LIMITED - XI,
as Purchasing Agent
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
-----------------------------------
Title: Director
-----------------------------------
Accepted and confirmed as
of the date first above written:
LINKS PARTNERS, LP, as an Investor
By: Coryton Management Ltd., its general partner
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
--------------------------------
Title: President
--------------------------------
INLAND PARTNERS, LP, as an Investor
By: Coryton Management Ltd., its general partner
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
--------------------------------
Title: President
--------------------------------
CSFB GLOBAL OPPORTUNITIES PARTNERS, L.P.,
as an Investor
By: Hemisphere Global Opportunities Partners, Ltd.
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
--------------------------------
Title: Director
--------------------------------
4
CSFB GLOBAL OPPORTUNITIES PARTNERS (BERMUDA), L.P.,
as an Investor
By: Hemisphere Global Opportunities Partners, Ltd.
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
--------------------------------
Title: Director
--------------------------------
5
