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| 8-K - PRIMARY DOCUMENT - HireQuest, Inc. | a8-kbankline.htm |
REVOLVING CREDIT AND TERM LOAN AGREEMENT
dated
as of June 29,
2021
among
HIREQUEST, INC.,
HIRE QUEST, L.L.C.,
HQ LTS CORPORATION,
HQ SNELLING CORPORATION,
HQ LINK CORPORATION,
HQ FINANCIAL CORPORATION,
HQ REAL PROPERTY CORPORATION,
HQ FRANCHISING CORPORATION,
HQ INSURANCE CORPORATION,
DRIVERQUEST 2, LLC,
HIREQUEST SECURITY, LLC,
AND THE OTHER SUBSIDIARIES OF HIREQUEST, INC.
FROM TIME TO TIME PARTY HERETO AS
“BORROWERS,”
as
Borrowers,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
and
TRUIST BANK
as
Administrative Agent
TRUIST SECURITIES, INC.
as Sole
Lead Arranger and Sole Book Runner
6798856.v25
TABLE OF CONTENTS
Page
Schedules
Schedule
I - Applicable
Margin
Schedule
II Commitment
Amounts
Schedule
2.24
-
Existing Letters of
Credit
Schedule
4.10 - ERISA
Schedule
4.11(a) - Ownership
of Property
Schedule
4.11(d) - Real
Estate
Schedule
4.14 - Organizational
Structure
Schedule
4.16 - Deposit
and Disbursement Accounts
Schedule
4.19 - Material
Agreements
Schedule
4.22 - Intellectual
Property
Schedule
4.26 - Franchisees
Schedule
7.1 - Existing
Indebtedness
Schedule
7.2 - Existing
Liens
Schedule
7.4 - Existing
Investments
Schedule
7.7 - Affiliate
Transactions
Exhibits
Exhibit
B - Form
of Borrowing Base Certificate
Exhibit
C-1 - Form
of Tranche A Revolving Note
Exhibit
C-2 - Form
of Tranche A-1 Revolving Note
Exhibit
D - Form
of Term Note
Exhibit
E - Form
of Guaranty and Security Agreement
Exhibit
F - Form
of Security Grant Insert for Franchise Agreements
Exhibit
G - [Reserved]
Exhibit
2.3
-
Form of Notice of
Revolving Borrowing
Exhibit
2.4
-
Form of Notice of
Swingline Borrowing
Exhibits
2.22
-
Tax
Certificates
Exhibit
3.1(b)(ii)
-
Form of Closing and
Incumbency Certificate
Exhibit
3.1(b)(v)
-
Form of
Officer’s Certificate
Exhibit
5.1(d)
-
Form of Compliance
Certificate
REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS REVOLVING CREDIT AND TERM LOAN
AGREEMENT (this “Agreement”) is made and entered into as of
June 29, 2021, by and among HIREQUEST, INC., a Delaware corporation
(“Holdings”), HIRE QUEST, L.L.C., a Florida limited
liability company (“Hire Quest, L.L.C.”),
HQ LTS CORPORATION, a
Delaware corporation (“HQ LTS”), HQ SNELLING CORPORATION, a Delaware
corporation (“HQ
Snelling”), HQ LINK
CORPORATION, a Delaware corporation (“HQ Link”), HQ FINANCIAL CORPORATION, a Delaware
corporation (“HQ
Financial”), HQ REAL
PROPERTY CORPORATION, a Delaware corporation
(“HQ Real
Property”), HQ
FRANCHISING CORPORATION, a Delaware corporation
(“HQ
Franchising”), HQ
INSURANCE CORPORATION, a Delaware corporation
(“HQ
Insurance”), DRIVERQUEST 2, LLC, a Florida limited
liability company (“DriverQuest”),
HIREQUEST SECURITY, LLC, a
Florida limited liability company (“HQ Security”), the other
Subsidiaries of Holdings from time to time party hereto as
borrowers (collectively with Holdings, Hire Quest, L.L.C., HQ LTS,
HQ Snelling, HQ Link, HQ Financial, HQ Real Property, HQ
Franchising, HQ Insurance, DriverQuest, and HQ Security, the
“Borrowers” and, each
individually, a “Borrower”), the several
banks and other financial institutions from time to time party
hereto as lenders (the “Lenders”), and
TRUIST BANK, in its capacity
as administrative agent for the Lenders (the “Administrative Agent”),
as Issuing Bank and as Swingline Lender.
R E C I T A L
S:
The
Borrowers have requested that the Lenders establish a senior
secured credit facility in favor of the Borrowers in an aggregate
principal amount of up to $63,153,500, comprised of the following:
(a) a revolving credit
facility in an aggregate principal amount of up to $60,000,000, and
(b) a term loan facility in an aggregate principal amount equal to
$3,153,500.
Subject
to the terms and conditions of this Agreement, the Lenders, the
Issuing Bank and the Swingline Lender, to the extent of their
respective Commitments (as defined herein), are willing severally
to establish the requested revolving credit facilities, letter of
credit subfacility and swingline subfacility in favor of, and
severally to make the term loans to, the Borrowers.
NOW, THEREFORE, in consideration of the
premises and the mutual covenants herein contained, the Borrowers,
the Lenders, the Administrative Agent, the Issuing Bank and the
Swingline Lender agree as follows:
ARTICLE I
. In
addition to the other terms defined herein, the following terms
used herein (including the preamble and recitals hereto) shall have
the meanings herein specified (to be equally applicable to both the
singular and plural forms of the terms defined):
“Account Control
Agreement” shall mean any tri-party agreement by and
among a Loan Party, the Administrative Agent and a depositary bank
or securities intermediary at which such Loan Party maintains a
Controlled Account, in each case, in form and substance
satisfactory to the Administrative Agent.
“Account Debtor” shall
mean a Person obligated to pay an Account.
“Acquisition” shall mean,
as to any Person, the purchase or other acquisition (in one
transaction or a series of transactions, including through a
merger) of all of the equity interests of another Person or all or
substantially all of the property, assets or business of another
Person or of the assets constituting a business unit, line of
business or division of another Person.
“Additional Lenders” shall
have the meaning set forth in Section 2.25(b).
“Administrative Agent”
shall have the meaning set forth in the introductory paragraph
hereof.
“Administrative
Questionnaire” shall mean, with respect to each
Lender, an administrative questionnaire in the form provided by the
Administrative Agent and submitted to the Administrative Agent and
duly completed by such Lender.
“Affected Financial
Institution” shall mean (a) any EEA Financial
Institution or (b) any UK Financial Institution.
“Affiliate” shall mean, as
to any Person, any other Person that directly, or indirectly
through one or more intermediaries, Controls, is Controlled by, or
is under common Control with such Person. For the purposes of this
definition, “Control” shall mean the power, directly or
indirectly, either (i) to vote 5% or more of the securities having
ordinary voting power for the election of directors (or persons
performing similar functions) of a Person or (ii) to direct or
cause the direction of the management and policies of a Person,
whether through the ability to exercise voting power, by control or
otherwise. The terms “Controlled by” and “under
common Control with” have the meanings correlative
thereto.
“Agent Advance Exposure”
shall mean, with respect to each Revolving Lender, the principal
amount of the Agent Advances in which such Revolving Lender is
legally obligated to make a Revolving Loan or to purchase a
participation in accordance with Section 2.5(b), which shall
equal such Revolving Lender’s Pro Rata Share of all
outstanding Agent Advances.
“Agent Advances” shall
have the meaning specified in Section 2.6(a).
“Aggregate Revolving Commitment
Amount” shall mean the aggregate principal amount of
the Aggregate Revolving Commitments from time to time. On the
Closing Date, the Aggregate Revolving Commitment Amount is
$60,000,000.
“Aggregate Revolving
Commitments” shall mean, collectively, all Revolving
Commitments of all Lenders at any time outstanding.
“Aggregate Revolving Credit
Exposure” shall mean the aggregate Revolving Credit
Exposure of all Lenders at any time.
“Aggregate Tranche A Revolving
Commitments” shall mean, collectively, all Tranche A
Revolving Commitments of all Tranche A Revolving Lenders at any
time outstanding. As of the Closing Date, the Aggregate Tranche A
Revolving Commitments is $60,000,000.
“Aggregate Tranche A Revolving Credit
Exposure” shall mean the aggregate Tranche A Revolving
Credit Exposure of all Tranche A Revolving Lenders at any
time.
“Aggregate Tranche A-1 Revolving
Commitments” shall mean, collectively, all Tranche A-1
Revolving Commitments of all Tranche A-1 Revolving Lenders at any
time outstanding. As of the Closing Date, the Aggregate Tranche A-1
Revolving Commitments is $-0-.
“Aggregate Tranche A-1 Revolving Credit
Exposure” shall mean the aggregate Tranche A-1
Revolving Credit Exposure of all Tranche A-1 Revolving Lenders at
any time.
“Agreement” shall have the
meaning set forth in the introductory paragraph
hereof.
“Anti-Corruption Laws”
shall mean all laws, rules, and regulations of any jurisdiction
applicable to any Loan Party or any Subsidiary of a Loan Party from
time to time concerning or relating to bribery or
corruption.
“Anti-Terrorism Laws”
shall mean any law relating to terrorism or money-laundering,
including the PATRIOT Act.
“Applicable Lending
Office” shall mean, for each Lender and for each Type
of Loan, the “Lending Office” of such Lender (or an
Affiliate of such Lender) designated for such Type of Loan in the
Administrative Questionnaire submitted by such Lender, or such
other office of such Lender (or such Affiliate of such Lender) as
such Lender may from time to time specify to the Administrative
Agent and the Borrower Representative as the office by which its
Loans of such Type are to be made and maintained.
“Applicable Margin” shall
mean, as of any date, (a) with respect to interest on the Term Loan
outstanding on such date, 1.0% per
annum with respect to Base Rate Loans and 2.0% per annum with respect to LIBOR Index
Rate Loans, (b) with respect to interest on the Tranche A-1 Loans
outstanding on such date, a percentage per annum to be mutually
agreed upon in writing by the Tranche A-1 Lenders and Borrower
Representative, and (c) with respect to interest on all Tranche A
Revolving Loans and Swingline Loans outstanding on such date or the
Letter of Credit fee, as the case may be, the percentage per annum
determined by reference to Average Excess Availability for the
preceding Fiscal Quarter (or, until the last day of the first
Fiscal Quarter ending after the Closing Date, for the preceding
Fiscal Month) as set forth on Schedule I (such percentage to
become effective two (2) Business Days after delivery of the
Borrowing Base Certificate for the last Fiscal Month of such
preceding Fiscal Quarter); provided that the Applicable
Margin from the Closing Date until the date that is two (2)
Business Days after delivery of the Borrowing Base Certificate as
of the last day of the Fiscal Quarter ending September 30, 2021 shall be at
Level III as set forth on Schedule I calculated as of the
Closing Date. In the event that any Borrowing Base Certificate
delivered hereunder is shown to be inaccurate (regardless of
whether this Agreement or the Commitments are in effect when such
inaccuracy is discovered), and such inaccuracy, if corrected, would
have led to the application of a higher Applicable Margin based
upon the pricing grid set forth on Schedule I (the
“Accurate Applicable
Margin”) for any period that such Borrowing Base
Certificate covered, then (i) the Borrower Representative shall
immediately deliver to the Administrative Agent a correct Borrowing
Base Certificate for such period, (ii) the Applicable Margin shall
be adjusted such that after giving effect to the corrected
Borrowing Base Certificate, the Applicable Margin shall be reset to
the Accurate Applicable Margin based upon the pricing grid set
forth on Schedule I for such period
and (iii) the Borrowers shall immediately pay to the
Administrative Agent, for the account of the Lenders, the accrued
additional interest and fees owing as a result of such Accurate
Applicable Margin for such period. The provisions of this
definition shall not limit the rights of the Administrative Agent
and the Lenders with respect to Section 2.15(b) or Article VIII.
“Approved Fund” shall mean
any Person (other than a natural Person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary
course of its business and that is administered or managed by (i) a
Lender, (ii) an Affiliate of a Lender or (iii) an entity or an
Affiliate of an entity that administers or manages a
Lender.
“Assignment and
Acceptance” shall mean an assignment and acceptance
entered into by a Lender and an Eligible Assignee (with the consent
of any party whose consent is required by Section 10.4(b)) and accepted
by the Administrative Agent, in substantially the form of
Exhibit A attached
hereto or any other form approved by the Administrative
Agent.
“Availability” shall mean,
as of any date of determination, the sum of Tranche A Availability
plus Tranche A-1 Availability.
“Average Excess
Availability” means, for any period of determination,
the sum of daily Excess Availability for each day during such
period divided by the number of days in such period.
“Bail-In Action” shall
mean the exercise of any Write-Down and Conversion Powers by the
applicable Resolution Authority in respect of any liability of an
Affected Financial Institution.
“Bail-In Legislation”
shall mean (a) with respect to any EEA Member Country implementing
Article 55 of Directive 2014/59/EU of the European Parliament and
of the Council of the European Union, the implementing law,
regulation rule or requirement for such EEA Member Country from
time to time which is described in the EU Bail-In Legislation
Schedule and (b) with respect to the United Kingdom, Part I of the
United Kingdom Banking Act 2009 (as amended from time to time) and
any other law, regulation or rule applicable in the United Kingdom
relating to the resolution of unsound or failing banks, investment
firms or other financial institutions or their affiliates (other
than through liquidation, administration or other insolvency
proceedings).
“Bank Product Provider”
shall mean any Person that, at the time it provides any Bank
Product to any Loan Party, (i) is a Lender or an Affiliate of a
Lender and (ii) except when the Bank Product Provider is Truist
Bank or any of its Affiliates, has provided written notice to the
Administrative Agent within ten (10) Business Days following the
later of the Closing Date or creation of the Bank Product which has
been acknowledged by the Borrower Representative of (x) the
existence of such Bank Product, (y) the maximum dollar amount of
obligations arising thereunder (the “Bank Product Amount”) and
(z) the methodology to be used by such parties in determining the
obligations under such Bank Product from time to time. In no event
shall any Bank Product Provider acting in such capacity be deemed a
Lender for purposes hereof to the extent of and as to Secured Bank
Product Obligations except that each reference to the term
“Lender” in Article IX and Section 10.3(b) shall be deemed
to include such Bank Product Provider, and in no event shall the
approval of any such Person in its capacity as Bank Product
Provider be required in connection with the release or termination
of any security interest or Lien of the Administrative Agent. The
Bank Product Amount may be changed from time to time upon written
notice to the Administrative Agent by the applicable Bank Product
Provider, provided,
that no Bank
Product Amount may be established or changed by a Bank Product
Provider (other than Truist Bank or any of its Affiliates) at any
time that a Default, an Event of Default or Overadvance exists or
would result therefrom.
“Bank Product Reserves”
shall mean all reserves that the Administrative Agent, from time to
time, establishes in its Permitted Discretion for Bank Products
then provided or outstanding.
“Bank Products” shall mean
any of the following services provided to any Loan Party or any
Subsidiary of any Loan Party by any Bank Product Provider: (i) any
treasury or other cash management services, including deposit
accounts, automated clearing house (ACH) origination and other
funds transfer, depository (including cash vault and check
deposit), zero balance accounts and sweeps, return items
processing, controlled disbursement accounts, positive pay,
lockboxes and lockbox accounts, account reconciliation and
information reporting, payables outsourcing, payroll processing,
trade finance services, investment accounts and securities
accounts, (ii) card services, including credit cards (including
purchasing cards and commercial cards), prepaid cards, including
payroll, stored value and gift cards, merchant services processing
and debit card services, and (iii) any other banking products or
services (other than Letters of Credit).
“Bankruptcy Code” shall
mean Title 11 of the United States Code entitled
“Bankruptcy”, including the Federal Rules of Bankruptcy
Procedure and any applicable local bankruptcy rules.
“Base Rate” shall mean for
any day a rate per annum
equal to the highest of (i) the rate of interest which the
Administrative Agent announces from time to time as its prime
lending rate, as in effect from time to time (the
“Prime
Rate”), (ii) the Federal Funds Rate, as in effect from
time to time, plus 0.50%,(iii) the LIBOR Index Rate on such date
plus 1.00% (any changes in such rates to be effective as of the
date of any change in such rate), and (iv) zero percent (0.00%).
The Administrative Agent’s prime lending rate is a reference
rate and does not necessarily represent the lowest or best rate
actually charged to any customer. The Administrative Agent may make
commercial loans or other loans at rates of interest at, above, or
below the Administrative Agent’s prime lending rate. Any
change in the Base Rate due to a change in the Prime Rate, the
Federal Funds Rate, or the LIBOR Index Rate will be effective from
and including the effective date of such change in the Prime Rate,
the Federal Funds Rate, or the LIBOR Index Rate.
“Base Rate Borrowing”
shall mean a Borrowing comprised of Base Rate Loans.
“Base Rate Loan” shall
mean any Loan that bears interest based on the Base
Rate.
“Base Rate Revolving Loan”
shall mean a Revolving Loan that bears interest based upon the Base
Rate.
“Base Rate Term Loan”
means any portion of the Term Loan that bears interest based upon
the Base Rate.
“Benchmark” shall mean,
initially, the LIBOR Index Rate; provided that, if a Benchmark
Transition Event, a Term SOFR Transition Event or an Early Opt-in
Election, as applicable, and its related Benchmark Replacement have
occurred with respect to the LIBOR Index Rate or the then-current
Benchmark, then “Benchmark” means the applicable
Benchmark Replacement to the extent that such Benchmark Replacement
has replaced such prior benchmark rate pursuant to clause (b) or
clause (c) of Section 2.18.
“Benchmark Replacement”
shall mean the first alternative set forth in the order below that
can be determined by the Administrative Agent for the applicable
Benchmark Replacement Date:
(1)
the sum of: (a)
Term SOFR and (b) the related Benchmark Replacement
Adjustment;
(2) the sum of: (a)
Daily Simple SOFR and (b) the related Benchmark Replacement
Adjustment;
(3) the sum of: (a) the
alternate benchmark rate that has been selected by the
Administrative Agent and the Borrower Representative as the
replacement for the then-current Benchmark giving due consideration
to (i) any selection or recommendation of a replacement benchmark
rate or the mechanism for determining such a rate by the Relevant
Governmental Body or (ii) any evolving or then-prevailing market
convention for determining a benchmark rate as a replacement for
the then-current Benchmark for U.S. dollar-denominated syndicated
credit facilities at such time and (b) the related Benchmark
Replacement Adjustment;
provided that, in the case of clause
(1), such Unadjusted Benchmark Replacement is displayed on a screen
or other information service that publishes such rate from time to
time as selected by the Administrative Agent in its reasonable
discretion; provided further that, notwithstanding
anything to the contrary in this Agreement or in any other Loan
Document, upon the occurrence of a Term SOFR Transition Event, and
the delivery of a Term SOFR Notice, on the applicable Benchmark
Replacement Date, the “Benchmark Replacement” shall
revert to and shall be deemed to be the sum of (a) Term SOFR and
(b) the related Benchmark Replacement Adjustment, as set forth in
clause (1) of this definition (subject to the first proviso above).
If the Benchmark Replacement as determined pursuant to clause (1),
(2) or (3) above would be less than the Floor, the Benchmark
Replacement will be deemed to be the Floor for the purposes of this
Agreement and the other Loan Documents.
“Benchmark Replacement
Adjustment” shall mean, with respect to any
replacement of the then-current Benchmark with an Unadjusted
Benchmark Replacement for any setting of such Unadjusted Benchmark
Replacement:
(1) for purposes of
clauses (1) and (2) of the definition of “Benchmark
Replacement,” the first alternative set forth in the order
below that can be determined by the Administrative
Agent:
(a) the spread
adjustment, or method for calculating or determining such spread
adjustment, (which may be a positive or negative value or zero) as
of the Reference Time such Benchmark Replacement is first set that
has been selected or recommended by the Relevant Governmental Body
for the replacement of such Benchmark with the applicable
Unadjusted Benchmark Replacement;
(b) the spread
adjustment (which may be a positive or negative value or zero) as
of the Reference Time such Benchmark Replacement is first set that
would apply to the fallback rate for a derivative transaction
referencing the ISDA Definitions to be effective upon an index
cessation event with respect to such Benchmark; and
(2) for
purposes of clause (3) of the definition of “Benchmark
Replacement,” the spread adjustment, or method for
calculating or determining such spread adjustment, (which may be a
positive or negative value or zero) that has been selected by the
Administrative Agent and the Borrower Representative for giving due
consideration to (i) any selection or recommendation of a spread
adjustment, or method for calculating or determining such spread
adjustment, for the replacement of such Benchmark with the
applicable Unadjusted Benchmark Replacement by the Relevant
Governmental Body on the applicable Benchmark Replacement Date or
(ii) any evolving or then-prevailing market convention for
determining a spread adjustment, or method for calculating or
determining such spread adjustment, for the replacement of such
Benchmark with the applicable Unadjusted Benchmark Replacement for
U.S. dollar-denominated syndicated credit facilities; provided
that, in the case of clause (1) above, such adjustment is displayed
on a screen or other information service that publishes such
Benchmark Replacement Adjustment from time to time as selected by
the Administrative Agent in its reasonable discretion.
“Benchmark Replacement Conforming
Changes” shall mean, with respect to any Benchmark
Replacement, any technical, administrative or operational changes
(including changes to the definition of “Base Rate,”
the definition of “Business Day,” the definition of
“Interest Period,” timing and frequency of determining
rates and making payments of interest, timing of borrowing requests
or prepayment, length of lookback periods, the applicability of
breakage provisions, and other technical, administrative or
operational matters) that the Administrative Agent decides in its
reasonable discretion may be appropriate to reflect the adoption
and implementation of such Benchmark Replacement and to permit the
administration thereof by the Administrative Agent in a manner
substantially consistent with market practice (or, if the
Administrative Agent decides that adoption of any portion of such
market practice is not administratively feasible or if the
Administrative Agent determines that no market practice for the
administration of such Benchmark Replacement exists, in such other
manner of administration as the Administrative Agent decides is
reasonably necessary in connection with the administration of this
Agreement and the other Loan Documents).
“Benchmark Replacement
Date” shall mean the earliest to occur of the
following events with respect to the then-current
Benchmark:
(1) in the case of
clause (1) or (2) of the definition of “Benchmark Transition
Event,” the later of:
(a) the
date of the public statement or publication of information
referenced therein; and
(b) the
date on which the administrator of such Benchmark (or the published
component used in the calculation thereof) permanently or
indefinitely ceases to provide such Benchmark (or such component
thereof);
(2) in the case of
clause (3) of the definition of “Benchmark Transition
Event,” the date of the public statement or publication of
information referenced therein;
(3) in the case of a
Term SOFR Transition Event, the date that is thirty (30) days after
the date a Term SOFR Notice is provided to the Lenders and the
Borrower Representative pursuant to Section 2.18(c);
or
(4) in the case of an
Early Opt-in Election, the sixth (6th) Business Day after the date
notice of such Early Opt-in Election is provided to the Lenders, so
long as the Administrative Agent has not received, by 5:00 p.m.
(New York City time) on the fifth (5th) Business Day after the date
notice of such Early Opt-in Election is provided to the Lenders,
written notice of objection to such Early Opt-in Election from
Lenders comprising the Required Lenders.
For the
avoidance of doubt, (i) if the event giving rise to the Benchmark
Replacement Date occurs on the same day as, but earlier than, the
Reference Time in respect of any determination, the Benchmark
Replacement Date will be deemed to have occurred prior to the
Reference Time for such determination and (ii) the “Benchmark
Replacement Date” will be deemed to have occurred in the case
of clause (1) or (2) with respect to any Benchmark upon the
occurrence of the applicable event or events set forth therein with
respect to such Benchmark (or the published component used in the
calculation thereof).
“Benchmark Transition
Event” shall mean the occurrence of one or more of the
following events with respect to the then-current
Benchmark:
(1) a public statement
or publication of information by or on behalf of the administrator
of such Benchmark (or the published component used in the
calculation thereof) announcing that such administrator has ceased
or will cease to provide such Benchmark (or such component
thereof), permanently or indefinitely, provided that, at the time
of such statement or publication, there is no successor
administrator that will continue to provide such Benchmark (or such
component thereof);
(2) a public statement
or publication of information by the regulatory supervisor for the
administrator of such Benchmark (or the published component used in
the calculation thereof), the Federal Reserve Board, the Federal
Reserve Bank of New York, an insolvency official with jurisdiction
over the administrator for such Benchmark (or such component), a
resolution authority with jurisdiction over the administrator for
such Benchmark (or such component) or a court or an entity with
similar insolvency or resolution authority over the administrator
for such Benchmark (or such component), which states that the
administrator of such Benchmark (or such component) has ceased or
will cease to provide such Benchmark (or such component thereof)
permanently or indefinitely, provided that, at the time of such
statement or publication, there is no successor administrator that
will continue to provide such Benchmark (or such component
thereof); or
(3) a public statement
or publication of information by the regulatory supervisor for the
administrator of such Benchmark (or the published component used in
the calculation thereof) announcing that such Benchmark (or such
component thereof) are no longer representative.
For the
avoidance of doubt, a “Benchmark Transition Event” will
be deemed to have occurred with respect to any Benchmark if a
public statement or publication of information set forth above has
occurred with respect to such Benchmark (or the published component
used in the calculation thereof).
“Benchmark Unavailability
Period” shall mean the period (if any) (x) beginning
at the time that a Benchmark Replacement Date pursuant to clauses
(1) or (2) of that definition has occurred if, at such time, no
Benchmark Replacement has replaced the then-current Benchmark for
all purposes hereunder and under any Loan Document in accordance
with Section 2.18
and (y) ending at the time that a Benchmark Replacement has
replaced the then-current Benchmark for all purposes hereunder and
under any Loan Document in accordance with Section 2.18.
“Benefit Plan” shall mean
any of (a) an “employee benefit plan” (as defined in
ERISA) that is subject to Title I of ERISA, (b) a
“plan” as defined in and subject to Section 4975 of the
Code or (c) any person whose assets include (for purposes of ERISA
Section 3(42) or otherwise for purposes of Title I of ERISA or
Section 4975 of the Code) the assets of any such “employee
benefit plan” or “plan”.
“Borrower” and
“Borrowers” shall have the
meanings set forth in the introductory paragraph
hereof.
“Borrower Representative”
shall have the meaning set forth in Section 2.30.
“Borrowing” shall mean a borrowing consisting
of (i) Loans of the same Class and Type made, continued or
converted on the same date, or (ii) a Swingline Loan.
“Borrowing Base” shall
mean, collectively, the Tranche A Borrowing Base and the Tranche
A-1 Borrowing Base.
“Borrowing Base
Certificate” shall mean a certificate of a Responsible
Officer of the Borrower Representative substantially in the form of
Exhibit
B or in such
form as otherwise agreed to by the Administrative Agent and the
Borrower Representative.
“Business Day” shall mean
any day other than (i) any Saturday, Sunday or other day on which
commercial banks in Charlotte, North Carolina or Atlanta, Georgia
are authorized or required by law to close and (ii) if such day
relates to a Borrowing of, or a payment or prepayment of principal
or interest on, a LIBOR Index Rate Loan or a notice with respect to
any of the foregoing, any day on which banks are not open for
dealings in Dollar deposits in the London interbank
market.
“Capital Expenditures”
shall mean, for any period, without duplication, (i) the additions
to property, plant and equipment and other capital expenditures of
the Loan Parties and their Subsidiaries that are (or would be) set
forth on a consolidated statement of cash flows of the Loan Parties
for such period prepared in accordance with GAAP and (ii) Capital
Lease Obligations incurred by the Loan Parties and their
Subsidiaries during such period, excluding any expenditure to the
extent such expenditure is part of the aggregate amounts payable in
connection with, or other consideration for, any Permitted
Acquisition consummated during or prior to such
period.
“Capital Lease
Obligations” of any Person shall mean all obligations
of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required
to be classified and accounted for as capital leases on a balance
sheet of such Person under GAAP, and the amount of such obligations
shall be the capitalized amount thereof determined in accordance
with GAAP.
“Capital Stock” shall mean
all shares, options, warrants, general or limited partnership
interests, membership interests or other equivalents (regardless of
how designated) of or in a corporation, partnership, limited
liability company or equivalent entity, whether voting or
nonvoting, including common stock, preferred stock or any other
“equity security” (as such term is defined in Rule
3a11-1 of the General Rules and Regulations promulgated by the
Securities and Exchange Commission under the Exchange
Act).
“Cash Collateralize” shall
mean, in respect of any Obligations, to provide and pledge (as a
first priority perfected security interest) cash collateral for
such Obligations in Dollars with the Administrative Agent pursuant
to documentation in form and substance reasonably satisfactory to
the Administrative Agent (and “Cash Collateralized” and
“Cash
Collateralization” have the corresponding
meanings).
“Change in Control” shall
mean the occurrence of one or more of the following events: (i) any
sale, lease, exchange or other transfer (in a single transaction or
a series of related transactions) of all or substantially all of
the assets of Holdings or any other Loan Party to any Person or
“group” (within the meaning of the Exchange Act and the
rules of the Securities and Exchange Commission thereunder as in
effect on the date hereof); (ii) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or
“group” (within the meaning of the Exchange Act and the
rules of the Securities and Exchange Commission thereunder as in
effect on the date hereof), other than Richard Hermanns, Edward
Jackson, their respective immediate family members, any trust
created by or for the benefit of any of the foregoing of 35% or
more of the outstanding shares of the voting equity interests of
Holdings; (iii) Holdings ceases to own and control, directly or
indirectly, beneficially and of record, 100% of the outstanding
shares of the voting equity interests of any other Borrower; (iv)
during any period of 24 consecutive months, a majority of the
members of the board of directors or other equivalent governing
body of Holdings cease to be composed of individuals who are
Continuing Directors or (v) the occurrence of a “Change of
Control,” or similar provision, under or with respect to any
Material Indebtedness.
“Change in Law” shall mean
(i) the adoption or taking effect of any law, rule, regulation or
treaty after the date of this Agreement, (ii) any change in any
law, rule, regulation or treaty or in the administration,
interpretation, implementation or application thereof by any
Governmental Authority after the date of this Agreement, or (iii)
compliance by any Lender (or its Applicable Lending Office) or the
Issuing Bank (or, for purposes of Section 2.20(b), by the Parent
Company of such Lender or the Issuing Bank, if applicable) with any
request, rule, guideline or directive (whether or not having the
force of law) of any Governmental Authority made or issued after
the date of this Agreement; provided
that, notwithstanding anything herein
to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer
Protection Act and all requests, rules, guidelines or directives in
connection therewith and (y) all requests, rules, guidelines or
directives promulgated by the Bank for International Settlements,
the Basel Committee on Banking Supervision (or any successor or
similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case
be deemed to be a “Change in Law”, regardless of the
date enacted, adopted or issued.
“Class”, when used in reference to any Loan
or Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, are Tranche A Revolving Loans, Tranche A-1
Revolving Loans, Swingline Loans or Term Loans and, when used in
reference to any Commitment, refers to whether such Commitment is a
Tranche A Revolving Commitment, a Tranche A-1 Revolving Commitment,
a Swingline Commitment or a Term Loan Commitment.
“Closing Date” shall mean
the date on which the conditions precedent set forth in
Section 3.1
and Section 3.2
have been satisfied or waived in accordance with Section 10.2.
“Code” shall mean the
Internal Revenue Code of 1986, as amended and in effect from time
to time.
“Collateral” shall mean
all tangible and intangible property, real and personal, of any
Loan Party that is or purports to be the subject of a Lien to the
Administrative Agent to secure the whole or any part of the
Obligations or any Guarantee thereof, and shall include (i) all
"Collateral" as defined in the Security Agreement, and (ii) all
casualty insurance proceeds and condemnation awards with respect to
any of the foregoing.
“Collateral Assignment of Office
Project Contracts, Plans and Specifications and
Permits” shall mean that certain Collateral Assignment
of Office Project Contracts, Plans and Specifications and Permits,
dated the Closing Date, from HQ Real Property in favor of the
Administrative Agent.
“Collateral Assignments”
shall mean, collectively, that certain (i) Collateral Assignment of
Rights Under Asset Purchase Agreement dated as of the date hereof,
executed by HQ Link in favor of the Administrative Agent and (ii)
Collateral Assignment of Rights Under Asset Purchase Agreement
dated as of the date hereof, executed by HQ Snelling in favor of
the Administrative Agent.
“Collateral Documents”
shall mean, collectively, the Security Agreement, the Pledge
Agreement, any Real Estate Documents, the Account Control
Agreements, the Collateral Assignments, the Information Certificate, the
Collateral Assignment of Office Project Contracts, Plans and
Specifications and Permits, the Title Insurance Policy, all
Intellectual Property Security Agreements, all Lien
Waivers, all assignments of key man life insurance policies and all
other instruments and agreements now or hereafter securing or
perfecting the Liens securing the whole or any part of the
Obligations or any Guarantee thereof, all UCC financing statements,
fixture filings and stock powers, and all other documents,
instruments, agreements and certificates executed and delivered by
any Loan Party to the Administrative Agent and the Lenders in
connection with the foregoing.
“Collateral Reserve
Account” shall have the meaning set forth in
Section
5.11.
“Commitment” shall mean a
Revolving Commitment, a Swingline Commitment, an LC Commitment or a
Term Loan Commitment or any combination thereof (as the context
shall permit or require).
“Commodity Exchange Act”
shall mean the Commodity Exchange Act (7 U.S.C. § 1
et seq.), as amended and in effect
from time to time, and any successor statute.
“Completion Date” shall
mean the date by which the Office Project is substantially
completed in accordance with the Plans and Specifications, which,
for purposes of this Agreement, shall be on or before August 31,
2021 (or such later date as extended in writing by Administrative
Agent in its discretion), subject to Excusable Delays.
“Compliance Certificate”
shall mean a certificate from the chief executive officer, or the
chief financial officer of the Borrower Representative in
substantially the form of, and containing the certifications set
forth in, the certificate attached hereto as Exhibit 5.1(d).
“Consolidated EBITDA”
shall mean, for the Loan Parties and their Subsidiaries for any
period, an amount equal to the sum of:
(i) Consolidated
Net Income for such period; plus
(ii) to
the extent deducted in determining Consolidated Net Income for such
period, and without duplication, (A) Consolidated Interest
Expense, (B) income tax expense determined on a consolidated basis
in accordance with GAAP, (C) depreciation and amortization
determined on a consolidated basis in accordance with GAAP,
(D) all other non-cash charges reasonably acceptable to the
Administrative Agent including, without limitation, stock based
compensation and asset impairment charges determined on a
consolidated basis in accordance with GAAP, in each case for such
period, (E) non-recurring transaction costs and expenses paid in
cash in connection with the closing of this Agreement and the
Related Transactions in an aggregate amount not to exceed
$2,500,000, (F) non-recurring transaction costs and expenses paid
in cash in connection with the closing of any Acquisition,
issuances of Public Debt (to the extent permitted hereunder
pursuant to a written amendment to this Agreement or a written
consent by Required Lenders entered into after the Closing Date and
at or before time of issuance thereof) or Permitted Equity after
the Closing Date not in excess of $2,500,000 in any period, and (G)
any extraordinary, unusual, or non-recurring losses acceptable to
Agent; less
(iii)
to the extent included in determining Consolidated Net Income for
such period, and without duplication, (A) extraordinary, unusual
and non-recurring gains, and (B) non-cash gains, excluding any
non-cash gains that represent the reversal of any accrual of, or
cash reserve for, anticipated cash items in any prior period (other
than any such accruals or cash reserves that have been added back
to Consolidated Net Income in calculating Consolidated EBITDA in
accordance with this definition).
“Consolidated Fixed
Charges” shall mean, for the Loan Parties
and their Subsidiaries for any period, the sum (without
duplication) of (i) Consolidated Interest Expense paid in cash for
such period, (ii) scheduled principal payments made on Consolidated
Total Debt during such period (including scheduled principal
payments of the Term Loans under this Agreement but excluding
principal payments of the Revolving Loans and Swingline Loans), and
(iii) Restricted Payments paid in cash to Persons other than the
Loan Parties during such period.
“Consolidated Fixed Charge Coverage
Ratio” shall mean, with respect to any period, the
ratio of (a) Consolidated EBITDA minus the sum of (i) Unfinanced Cash
Capital Expenditures and (ii) Taxes paid in cash to (b)
Consolidated Fixed Charges, in each case measured for the twelve
consecutive Fiscal Months ending on or immediately prior to such
date for which financial statements are required to have been
delivered under this Agreement.
“Consolidated Funded Debt”
shall mean, as of any date, all Indebtedness of the Loan Parties
and their Subsidiaries on a consolidated basis of the type
described in clauses (i), (ii), (iii), (iv), (v) and (vi) (but, in
the case of such clause (vi), only to the extent representing
unreimbursed obligations with respect to letters of credit,
acceptances or similar obligations or Guarantees of letters of
credit, acceptances or similar obligations) of the definition of
“Indebtedness” and all Guarantees of any Loan Party or
any Subsidiary of a Loan Party of the foregoing types of
Indebtedness.
“Consolidated Interest
Expense” shall mean, for the Loan Parties and their
Subsidiaries for any period, determined on a consolidated basis in
accordance with GAAP, the sum of (i) total interest expense,
including the interest component of any payments in respect of
Capital Lease Obligations, capitalized or expensed during such
period (whether or not
actually paid during such period) plus (ii) the net amount payable (or
minus the net
amount receivable) with respect to Hedging Transactions during such
period (whether or not actually paid or received during such
period).
“Consolidated Lease
Expense” shall mean, for the Loan Parties and their
Subsidiaries for any period, the aggregate amount of fixed and
contingent rentals payable with respect to leases of real and
personal property (excluding Capital Lease Obligations) for such
period determined on a consolidated basis in accordance with
GAAP.
“Consolidated Net Income”
shall mean, for the Loan Parties and their Subsidiaries for any
period, the net income (or loss) of the Loan Parties and their
Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP, but excluding therefrom (to the extent
otherwise included therein) (i) any gains attributable to write-ups
of assets or the sale of assets (other than the sale of inventory
in the ordinary course of business), (ii) any Capital Stock of the
Loan Parties or any of
their Subsidiaries in the unremitted earnings of any Person that is
not a Subsidiary and (iii) any income (or loss) of any Person
accrued prior to the date it becomes a Subsidiary or is merged into
or consolidated with the Loan Parties or any Subsidiary or the date
that such Person’s assets are acquired by the Loan Parties or
any Subsidiary.
“Consolidated Total Debt”
shall mean, as of any date, all Indebtedness of the Loan Parties
and their Subsidiaries measured on a consolidated basis as of such
date, but excluding Indebtedness of the type described in
subsection (xi) of the definition thereof.
“Continuing Director”
shall mean, with respect to any period, any individuals (A) who
were members of the board of directors or other equivalent
governing body of Holdings on the first day of such period, (B)
whose election or nomination to that board or equivalent governing
body was approved by individuals referred to in clause (A) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body, or (C) whose
election or nomination to that board or other equivalent governing
body was approved by individuals referred to in clauses (A) and (B)
above constituting at the time of such election or nomination at
least a majority of that board or equivalent governing
body.
“Contractor” shall mean
Hawk Construction of Charleston, Inc. or any replacement contractor
selected by Borrowers in their discretion and reasonably acceptable
to Administrative Agent.
“Contractual Obligation”
of any Person shall mean any provision of any security issued by
such Person or of any agreement, instrument or undertaking under
which such Person is obligated or by which it or any of the
property in which it has an interest is bound.
“Controlled Account” shall
have the meaning set forth in Section 5.11.
“Copyright” shall have the
meaning assigned to such term in the Security
Agreement.
“Credit Card Processor”
shall mean any servicing or processing agent or any factor or
financial intermediary who facilitates, services, processes or
manages the credit authorization, billing transfer and/or payment
procedures with respect to any Loan Party’s sales
transactions involving credit card or debit card purchases by
customers using credit cards or debit cards.
“Credit Card Processor
Agreement” shall have the meaning specified in
Section 5.11(d).
“Daily Simple SOFR” shall
mean, for any day, SOFR, with the conventions for this rate (which
will include a lookback) being established by the Administrative
Agent in accordance with the conventions for this rate selected or
recommended by the Relevant Governmental Body for determining
“Daily Simple SOFR” for business loans; provided, that if the Administrative
Agent decides that any such convention is not administratively
feasible for the Administrative Agent, then the Administrative
Agent may establish another convention in its reasonable
discretion.
“Debtor Relief Laws” shall
mean the Bankruptcy Code and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief laws of the United States
or other applicable jurisdictions from time to time in
effect.
“Default” shall mean any
condition or event that, with the giving of notice or the lapse of
time or both, would constitute an Event of Default.
“Default Interest” shall
have the meaning set forth in Section 2.15(b).
“Defaulting Lender” shall
mean, subject to Section
2.28(c), any Lender that (a) has failed to (i) fund all or
any portion of its Loans within two (2) Business Days of the date
such Loans were required to be funded hereunder, unless such Lender
notifies the Administrative Agent and the Borrower Representative
in writing that such failure is the result of such Lender’s
determination that one or more conditions precedent to funding
(each of which conditions precedent, together with any applicable
default, shall be specifically identified in such writing) has not
been satisfied, or to (ii) pay to the Administrative Agent, the
Issuing Bank, the Swingline Lender or any other Lender any other
amount required to be paid by it hereunder (including in respect of
its participation in Letters of Credit or Swingline Loans) within
two (2) Business Days of the date when due; (b) has notified the
Borrower Representative, the Administrative Agent, the Issuing Bank
or the Swingline Lender in writing that it does not intend to
comply with its funding obligations hereunder, or has made a public
statement to that effect (unless such writing or public statement
relates to such Lender’s obligation to fund a Loan hereunder
and states that such position is based on such Lender’s
determination that one or more conditions precedent to funding
(each of which conditions precedent, together with any applicable
default, shall be specifically identified in such writing or public
statement) cannot be satisfied); (c) has failed, within three (3)
Business Days after written request by the Administrative Agent or
the Borrower Representative, to confirm in writing to the
Administrative Agent and the Borrower Representative that it will
comply with its prospective funding obligations hereunder
(provided that such
Lender shall cease to be a Defaulting Lender pursuant to this
clause (c) upon receipt of such written confirmation by the
Administrative Agent and the Borrower Representative); or (d) has,
or has a direct or indirect parent company that has, (i) become the
subject of a proceeding under any Debtor Relief Law (ii) had
appointed for it a receiver, custodian, conservator, trustee,
administrator, assignee for the benefit of creditors or similar
Person charged with reorganization or liquidation of its business
or assets, including the Federal Deposit Insurance Corporation or
any other state or federal regulatory authority acting in such a
capacity; or (iii) become the subject of a Bail-In Action;
provided that a
Lender shall not be a Defaulting Lender solely by virtue of the
ownership or acquisition of any equity interest in that Lender or
any direct or indirect parent company thereof by a Governmental
Authority so long as such ownership interest does not result in or
provide such Lender with immunity from the jurisdiction of courts
within the United States or from the enforcement of judgments or
writs of attachment on its assets or permit such Lender (or such
Governmental Authority) to reject, repudiate, disavow or disaffirm
any contracts or agreements made with such Lender. Any
determination by the Administrative Agent that a Lender is a
Defaulting Lender under clauses (a) through (d) above shall be
conclusive and binding absent manifest error, and such Lender shall
be deemed to be a Defaulting Lender (subject to Section 2.28(c)) upon delivery
of written notice of such determination to the Borrower
Representative, the Issuing Bank, the Swingline Lender and each
Lender.
“Dilution” shall mean, as
of any date of determination, a percentage, based upon the
immediately prior three hundred sixty-five (365) consecutive days,
that is the result of dividing the Dollar amount of (i) bad debt
write downs or write-offs (excluding such write downs or write-offs
for Accounts that have aged more than 365 days as of the Closing
Date), discounts, returns, promotions, credit memos, advertising
allowances, credits or other dilutive items with respect to the
Borrowers’ Accounts during such period by (ii) the
Borrowers’ billings with respect to Accounts during such
period.
“Dilution Reserve” shall
mean, as of any date of determination, an amount sufficient to
reduce the advance rate against Eligible Accounts by one (1)
percentage point for each percentage point by which Dilution is in
excess of five percent (5%), rounded up to the nearest one tenth of
a percentage point (0.10%).
“Dollars” and the sign
“$”
shall mean lawful money of the United States.
“Domestic Subsidiary”
shall mean each Subsidiary of a Loan Party that is organized under
the laws of the United States or any state or district
thereof.
“Early Opt-in Election”
shall mean, if the then-current Benchmark is the LIBOR Index Rate,
the occurrence of:
(1) a
notification by the Administrative Agent to (or the request by the
Borrower Representative to the Administrative Agent to notify) each
of the other parties hereto that at least five currently
outstanding U.S. dollar-denominated syndicated credit facilities at
such time contain (as a result of amendment or as originally
executed) a SOFR-based rate (including SOFR, a term SOFR or any
other rate based upon SOFR) as a benchmark rate (and such
syndicated credit facilities are identified in such notice and are
publicly available for review), and
(2) the
joint election by the Administrative Agent and the Borrower
Representative to trigger a fallback from the LIBOR Index Rate and
the provision by the Administrative Agent of written notice of such
election to the Lenders.
“EEA Financial
Institution” shall mean (a) any credit institution or
investment firm established in any EEA Member Country which is
subject to the supervision of an EEA Resolution Authority, (b) any
entity established in an EEA Member Country which is a parent of an
institution described in clause (a) of this definition, or (c) any
financial institution established in an EEA Member Country which is
a subsidiary of an institution described in clauses (a) or (b) of
this definition and is subject to consolidated supervision with its
parent.
“EEA Member Country” shall
mean any of the member states of the European Union, Iceland,
Liechtenstein, and Norway.
“EEA Resolution Authority”
shall mean any public administrative authority or any person
entrusted with public administrative authority of any EEA Member
Country (including any delegee) having responsibility for the
resolution of any EEA Financial Institution.
“Eligible Accounts” shall
mean, at any particular date, the Accounts of the Borrowers that
the Administrative Agent, in the exercise of its Permitted
Discretion, determines to be Eligible Accounts; provided that, without limiting
the foregoing and the right of the Administrative Agent to
establish other criteria of ineligibility, Eligible Accounts shall
not include any of the following Accounts:
(a) Accounts with
respect to which more than ninety (90) days have elapsed since the
original invoice date;
(b) Accounts owed by an
Account Debtor for which more than fifty percent (50%) of the
Accounts owed by such Account Debtor and its Affiliates are deemed
ineligible pursuant to the foregoing clause (a);
(c) Accounts with
respect to which any of the representations, warranties, covenants
or agreements applicable thereto which are set forth in this
Agreement or any of the other Loan Documents, including those
contained in Section
4.21, are not or have ceased to be complete and correct or
have been breached;
(d) Accounts with
respect to which, in whole or in part, a check, promissory note,
draft, trade acceptance or other instrument for the payment of
money has been received, presented for payment and returned
uncollected for any reason;
(e) Accounts as to
which the applicable Borrower has not performed, as of the
applicable date of calculation, all of its obligations then
required to have been performed, including the delivery of
merchandise or rendition of services applicable to such
Accounts;
(f) Accounts as to
which any one or more of the following events has occurred with
respect to the Account Debtor on such Accounts: the filing by or
against such Account Debtor of a request or petition for
liquidation, reorganization, arrangement, adjustment of debts,
adjudication as a bankrupt, winding-up, or other relief under the
bankruptcy, insolvency, or similar laws of the United States, any
state or territory thereof, or any foreign jurisdiction, now or
hereafter in effect; the making of any general assignment by such
Account Debtor for the benefit of creditors; the appointment of a
receiver or trustee for such Account Debtor or for any of the
assets of such Account Debtor, including the appointment of or
taking possession by a “custodian”, as defined in the
Bankruptcy Code; the institution by or against such Account Debtor
of any other type of insolvency proceeding or of any formal or
informal proceeding for the dissolution or liquidation of,
settlement of claims against, or winding up of affairs of, such
Account Debtor; the sale, assignment, or transfer of all or
substantially all of the assets of such Account Debtor; the
nonpayment generally by such Account Debtor of its debts as they
become due; or the cessation of the business of such Account Debtor
as a going concern;
(g) Accounts which
represent the remaining obligations for partially paid
invoices;
(h) Accounts owed by an
Account Debtor which (i) (A) does not maintain its chief executive
office or have a material presence in the United States or in
Canada and (B) is not organized under the laws of the United States
or any state or territory thereof or of Canada or any province
thereof; or (ii) is the government of any foreign country or
sovereign state, or of any state, municipality, or other political
subdivision thereof, or of any department, agency, public
corporation, or other instrumentality thereof, except to the extent
that such Accounts are secured or payable by a letter of credit or
acceptance, or insured under foreign credit insurance, in each
case, on terms and conditions satisfactory to the Administrative
Agent in its Permitted Discretion;
(i) Accounts owed by an
Account Debtor which is an individual or is an Affiliate or
employee of any Loan Party;
(j) Accounts which are
owed by a creditor or supplier or are otherwise subject to a
potential offset, counterclaim, dispute, deduction, discount,
recoupment, reserve, defense, charge-back, credit or allowance (but
ineligibility shall be limited to the amount thereof);
(k) Accounts which are
subject to any customer dispute, but only to the extent of the
amount in dispute;
(l) Accounts which are
owed by the government of the United States, or any department,
agency, public corporation, or other instrumentality thereof,
unless either (i) all required procedures for the effective
collateral assignment of such Accounts under the Federal Assignment
of Claims Act of 1940, as amended, have been complied with to the
Administrative Agent’s reasonable satisfaction with respect
to such Accounts or (ii) such Accounts, together with Accounts
under clause (m)(ii) of this definition with respect to which
Administrative Agent cannot enforce, or it would not be
commercially or administratively practical for Administrative Agent
to enforce, against the applicable Account Debtor, do not exceed
individually or in the aggregate $750,000;
(m) Accounts which are
owed by any state, municipality, territory or other political
subdivision of the United States, or any department, agency, public
corporation, or other instrumentality thereof and as to which the
Administrative Agent determines in its Permitted
Discretion that (i)
the Administrative Agent’s security interest therein is not
or cannot be perfected or (ii) cannot, or would not be commercially
or administratively practical, to be enforced by Administrative
Agent against the applicable Account Debtor unless and to the
extent, in the case of this clause (ii), such Accounts, together
with Accounts under clause (l)(ii) of this definition, do not
exceed individually or in the aggregate $750,000;
(n) Accounts which
represent third-party leasing transactions;
(o) Accounts which
represent sales on a bill-and-hold, guaranteed sale, sale and
return, sale on approval, consignment or other repurchase or return
basis or from a sale for personal, family or household
purposes;
(p) Accounts which
represent any contractual obligation, based on a percentage of
sales or otherwise, that must be collected from the applicable
Account Debtor and paid by the applicable Borrower to a third party
as a “pass-through” item, but only to the extent of the
amount of such pass-through;
(q) Accounts which are
evidenced by a promissory note or other Instrument or by Chattel
Paper;
(r) Accounts as to
which the applicable Account Debtor has not been sent an invoice or
which are partially billed;
(s) Accounts with
respect to which the applicable Account Debtor is located in a
state or jurisdiction that requires, as a condition to access to
the courts of such jurisdiction, that a creditor qualify to
transact business, file a business activities report or other
report or form, or take one or more other actions, unless the
applicable Borrower has so qualified, filed such reports or forms,
or taken such actions (and, in each case, paid any required fees or
other charges);
(t) Accounts which are
not a bona fide, valid and, to the best of the applicable
Borrower’s knowledge, enforceable obligation of the Account
Debtor thereunder;
(u) Accounts which are
owed by an Account Debtor with whom the applicable Borrower has any
agreement or understanding for deductions from such Accounts,
except for discounts or allowances which are made in the ordinary
course of business for prompt payment or volume purchases and which
discounts or allowances are reflected in the calculation of the
face value of each invoice related to such Accounts, or Accounts
with respect to which a debit or chargeback has been issued or
generated, in each case to the extent of such deduction and without
duplication of any such deduction accounted for in the calculation
of Dilution;
(v) Accounts which are
not subject to a valid and continuing first priority Lien in favor
of the Administrative Agent pursuant to the Loan Documents, or as
to which all action necessary or desirable to perfect such security
interest has not been taken, or Accounts as to which the applicable
Borrower does not have good and marketable title, free and clear of
any Liens (other than Liens in favor of the Administrative
Agent);
(w) Accounts which are
owed by an Account Debtor to the extent that such Accounts,
together with all other Accounts owing by the same Account Debtor
and its Affiliates, exceed twenty percent (20%) of all Eligible
Accounts;
(x) Accounts which
represent rebates, refunds or other similar transactions, but only
to the extent of the amount of such rebate, refund or similar
transaction;
(y) Accounts as to
which a security agreement, financing statement, equivalent
security or lien instrument or continuation statement is on file or
of record in any public office, except any such as may have been
filed in favor of the Administrative Agent pursuant to the Loan
Documents;
(z) Accounts which did
not arise in the ordinary course of business of the applicable
Borrower out of the sale of goods or services by such
Borrower;
(aa) Accounts
that are pre-billed Accounts or that arise from progress billing or
retainage or relate to services for which a performance, surety or
completion bond or similar assurance has been issued;
(bb) Accounts
that are "charged back" to the franchisee pursuant to the
applicable Franchise Agreement;
(cc) Accounts
with respect to which the related franchisee that sourced such
Accounts has not executed and delivered the documents required by
Section 5.15 (with
respect to any new franchisee added after the Closing Date (other
than pursuant to a Permitted Acquisition) and, after the applicable
date specified in Section 5.16(a)(i), all franchisees on the
Closing Date and those with respect to which the applicable
Franchise Agreement is acquired after the Closing Date pursuant to
a Permitted Acquisition) or Section 5.16(a)(i) (with
respect to all franchisees on the Closing Date and those with
respect to which the applicable Franchise Agreement is acquired
after the Closing Date pursuant to a Permitted Acquisition) on or
before the date required under such Section (it being understood
that if, notwithstanding Borrowers’ commercially reasonable
efforts, Borrowers are unable to insure that the applicable
security interest referred to in such Sections is not a first
priority security interest, then the accounts sourced by the
applicable franchisee shall be excluded from Eligible Accounts)
;
(dd) Accounts
that are sourced by a franchisee to the extent that such Accounts,
together with all other Accounts sourced by such franchisee, exceed
ten percent (10%) (or such higher percentage approved in writing by
Administrative Agent from time to time, with respect to Accounts
that are sourced by any specific franchisee identified in such
writing) of all Eligible Accounts; and
(ee) Accounts
that are sourced by a franchisee (i) as to which any one or more of
the following events has occurred with respect to such franchisee:
the filing by or against such franchisee of a request or petition
for liquidation, reorganization, arrangement, adjustment of debts,
adjudication as a bankrupt, winding-up, or other relief under the
bankruptcy, insolvency, or similar laws of the United States, any
state or territory thereof, or any foreign jurisdiction, now or
hereafter in effect; the making of any general assignment by such
franchisee for the benefit of creditors; the appointment of a
receiver or trustee for such franchisee or for any of the assets of
such franchisee, including the appointment of or taking possession
by a “custodian”, as defined in the Bankruptcy Code;
the institution by or against such franchisee of any other type of
insolvency proceeding or of any formal or informal proceeding for
the dissolution or liquidation of, settlement of claims against, or
winding up of affairs of, such franchisee; the sale, assignment, or
transfer of all or substantially all of the assets of such
franchisee; the nonpayment generally by such franchisee of its
debts as they become due; or the cessation of the business of such
franchisee as a going concern, (ii) that is in default in any
material respects under the applicable Franchise Agreement between
a Borrower and such franchisee, or (iii) if such Accounts are the
subject of a dispute between such franchisee and the applicable
Borrower.
“Eligible Assignee” shall
mean any Person that meets the requirements to be an assignee under
Section 10.4 (subject to such consents, if any, as may be required
under Section 10.4(b)(iii)).
“Eligible Investment Grade
Accounts” shall mean any Eligible Account as to which
the Account Debtor is an Investment Grade Account
Debtor.
“Eligible Non-Investment Grade
Accounts” shall mean any Eligible Account as to which
the Account Debtor is not an Investment Grade Account
Debtor.
“Environmental Indemnity”
shall mean each environmental indemnity made by any Loan Party with
respect to Real Estate required to be pledged as Collateral in
favor of the Administrative Agent for the benefit of the Secured
Parties, in each case in form and substance satisfactory to the
Administrative Agent.
“Environmental Laws” shall
mean all applicable laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any
Governmental Authority relating in any way to the environment,
preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to
health and safety matters.
“Environmental Liability”
shall mean any liability, contingent or otherwise (including any
liability for damages, costs of environmental investigation and
remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of any Loan Party or
any Subsidiary directly or indirectly resulting from or based upon
(i) any actual or alleged violation of any Environmental Law, (ii)
the generation, use, handling, transportation, storage, treatment
or disposal of any Hazardous Materials, (iii) any actual or alleged
exposure to any Hazardous Materials, (iv) the Release or threatened
Release of any Hazardous Materials or (v) any contract, agreement
or other consensual arrangement pursuant to which liability is
assumed or imposed with respect to any of the
foregoing.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute and the
regulations promulgated and rulings issued thereunder.
“ERISA Affiliate” shall
mean any person that for purposes of Title I or Title IV of ERISA
or Section 412 of the Code would be deemed at any relevant time to
be a “single employer” or otherwise aggregated with any
Loan Party or any of its Subsidiaries under Section 414(b), (c),
(m) or (o) of the Code or Section 4001 of ERISA.
“ERISA Event” shall mean (i) any
“reportable event” as defined in Section 4043 of ERISA
with respect to a Plan (other than an event as to which the PBGC
has waived under subsection .22, .23, .25, .27 or .28 of PBGC
Regulation Section 4043 the requirement of Section 4043(a) of ERISA
that it be notified of such event); (ii) any failure to make a
required contribution to any Plan that would result in the
imposition of a lien or other encumbrance or the provision of
security under Section 430 of the Code or Section 303 or 4068 of
ERISA, or the arising of such a lien or encumbrance, there being or
arising any “unpaid minimum required contribution” or
“accumulated funding deficiency” (as defined or
otherwise set forth in Section 4971 of the Code or Part 3 of
Subtitle B of Title 1 of ERISA), whether or not waived, or any
filing of any request for or receipt of a minimum funding waiver
under Section 412 of the Code or Section 302 of ERISA with respect
to any Plan or Multiemployer Plan, or that such filing may be made,
or any determination that any Plan is, or is expected to be, in
at-risk status under Title IV of ERISA; (iii) any incurrence by any
Loan Party, any of its Subsidiaries or any of their respective
ERISA Affiliates of any liability under Title IV of ERISA with
respect to any Plan or Multiemployer Plan (other than for premiums
due and not delinquent under Section 4007 of ERISA); (iv) any
institution of proceedings, or the occurrence of an event or
condition which would reasonably be expected to constitute grounds
for the institution of proceedings by the PBGC, under Section 4042
of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan; (v) any incurrence by any Loan Party, any of
its Subsidiaries or any of their respective ERISA Affiliates of any
liability with respect to the withdrawal or partial withdrawal from
any Plan or Multiemployer Plan, or the receipt by any Loan Party,
any of its Subsidiaries or any of their respective ERISA Affiliates
of any notice that a Multiemployer Plan is in endangered or
critical status under Section 305 of ERISA; (vi) any receipt by any
Loan Party, any of its Subsidiaries or any of their respective
ERISA Affiliates of any notice, or any receipt by any Multiemployer
Plan from any Loan Party, any of its Subsidiaries or any of their
respective ERISA Affiliates of any notice, concerning the
imposition of Withdrawal Liability or concerning a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA; (vii)
engaging in a non-exempt prohibited transaction within the meaning
of Section 4975 of the Code or Section 406 of ERISA; or (viii) any
filing of a notice of intent to terminate any Plan if such
termination would require material additional contributions in
order to be considered a standard termination within the meaning of
Section 4041(b) of ERISA, any filing under Section 4041(c) of ERISA
of a notice of intent to terminate any Plan, or the termination of
any Plan under Section 4041(c) of ERISA.
“Erroneous Payment” has
the meaning assigned to it in Section 9.15(a).
“Erroneous Payment Deficiency
Assignment” has the meaning assigned to it in
Section
9.15(d).
“Erroneous Payment Impacted
Class” has the meaning assigned to it in Section 9.15(d).
“Erroneous Payment Return
Deficiency” has the meaning assigned to it in
Section
9.15(d).
“Erroneous Payment Subrogation
Rights” has the meaning assigned to it in Section 9.15(d).
“EU Bail-In Legislation
Schedule” shall mean the EU Bail-In Legislation
Schedule published by the Loan Market Association (or any successor
person), as in effect from time to time.
“Event of Default” shall
have the meaning set forth in Section 8.1.
“Excess Availability”
shall mean (a) on any determination date, other than the Closing
Date, the amount by which Availability exceeds the Aggregate
Revolving Credit Exposure of all Lenders and (b) on the Closing
Date or any date on which the Administrative Agent determines the
Payment Conditions are satisfied in its Permitted Discretion, the
amount by which Availability exceeds the sum of (i) the Aggregate
Revolving Credit Exposure of all Lenders plus (ii) trade payables
that are due or unpaid more than 60 days after the original invoice
date.
“Exchange Act” shall mean
the Securities Exchange Act of 1934, as amended and in effect from
time to time.
“Excluded Swap Obligation”
shall mean, with respect to any Guarantor, any Swap Obligation if,
and to the extent that, all or a portion of the Guarantee of such
Guarantor of, or the grant by such Guarantor of a security interest
to secure, such Swap Obligation (or any Guarantee thereof) is or
becomes illegal under the Commodity Exchange Act or any rule,
regulation or order of the Commodity Futures Trading Commission (or
the application or official interpretation of any thereof) by
virtue of such Guarantor’s failure for any reason to
constitute an “eligible contract participant” as
defined in the Commodity Exchange Act at the time the Guarantee of
such Guarantor becomes effective with respect to such related Swap
Obligation. If a Swap Obligation arises under a master agreement
governing more than one swap, such exclusion shall apply only to
the portion of such Swap Obligation that is attributable to swaps
for which such Guarantee or security interest is or becomes
illegal.
“Excluded Taxes” shall
mean any of the following Taxes imposed on or with respect to a
Recipient or required to be withheld or deducted from a payment to
a Recipient: (a) Taxes imposed on or measured by net income
(however denominated), franchise Taxes, and branch profits Taxes,
in each case, (i) imposed as a result of such Recipient being
organized under the laws of, or having its principal office or, in
the case of any Lender, its Applicable Lending Office located in,
the jurisdiction imposing such Tax (or any political subdivision
thereof) or (ii) that are Other Connection Taxes, (b) in the case
of a Lender, U.S. federal withholding Taxes imposed on amounts
payable to or for the account of such Lender with respect to an
applicable interest in a Loan or Commitment pursuant to a law in
effect on the date on which (i) such Lender acquires such interest
in the Loan or Commitment (other than pursuant to an assignment
request by the Borrower Representative under Section 2.27) or (ii) such
Lender changes its Applicable Lending Office, except in each case
to the extent that, pursuant to Section 2.22, amounts with
respect to such Taxes were payable either to such Lender’s
assignor immediately before such Lender became a party hereto or to
such Lender immediately before it changed its Applicable Lending
Office, (c) Taxes attributable to such Recipient’s failure to
comply with Section
2.22 and (d) any U.S. federal withholding Taxes imposed
under FATCA.
“Excusable Delays” shall
mean a delay caused by unusually adverse weather conditions which
would not be reasonably accounted for in the Office Project
Contracts, fire, earthquake or other acts of God, strikes,
lockouts, acts of public enemy, riots or insurrections or any other
unforeseen circumstances or events beyond the control of the Loan
Parties (except financial circumstances or events or matters which
may be resolved by the payment of money), and as to which the Loan
Parties notify the Administrative Agent in writing within ten (10)
days after such occurrence.
“Existing Loan Agreement”
shall mean that certain Loan Agreement, dated as of July 11, 2019,
by and among Holdings, Hire Quest, L.L.C., certain other
subsidiaries of Holdings party thereto, and Truist Bank, as
successor to Branch Banking and Trust Company, as amended,
restated, supplemented or otherwise modified from time to
time.
“Existing Lender” shall
mean Truist Bank, as successor to Branch Banking and Trust
Company.
“Existing Letters of
Credit” shall mean the letters of credit issued and
outstanding under the Existing Loan Agreement as set forth on
Schedule
2.24.
“FATCA” shall mean
Sections 1471 through 1474 of the Code, as of the date of this
Agreement (or any amended or successor version that is
substantively comparable and not materially more onerous to comply
with), any current or future regulations or official
interpretations thereof and any agreements entered into pursuant to
Section 1471(b)(1) of the Code.
“Federal Funds Rate” shall
mean, for any day, the rate per
annum (rounded upwards, if necessary, to the next 1/100 of
1%) equal to the weighted average of the rates on overnight Federal
funds transactions with member banks of the Federal Reserve System
as published by the Federal Reserve Bank of New York on the next
succeeding Business Day or, if such rate is not so published for
any Business Day, the Federal Funds Rate for such day shall be the
average (rounded upwards, if necessary, to the next 1/100 of 1%) of
the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized
standing selected by the Administrative Agent. For purposes of this
Agreement, the Federal Funds Rate shall not be less than zero
percent (0%).
“Fee Letter” shall mean
that certain amended and restated fee letter dated as of the
Closing Date, executed by Truist Securities, Inc. and Truist Bank
and accepted by the Borrower
Representative.
“Fiscal Month” shall mean
any fiscal month of the Loan Parties.
“Fiscal Quarter” shall
mean any fiscal quarter of the Loan Parties.
“Fiscal Year” shall mean
any fiscal year of the Loan Parties.
“Flood Insurance Laws”
shall mean, collectively, (i) the National Flood Insurance Reform
Act of 1994 (which comprehensively revised the National Flood
Insurance Act of 1968 and the Flood Disaster Protection Act of
1973), as now or hereafter in effect or any successor statute
thereto, (ii) the Flood Insurance Reform Act of 2004, as now or
hereafter in effect or any successor statute thereto and (iii) the
Biggert –Waters Flood Insurance Reform Act of 2012, as now or
hereafter in effect or any successor statute thereto.
“Floor” shall mean zero
percent (0%) per annum.
“Foreign Lender” shall
mean a Lender that is not a U.S. Person.
“Foreign Subsidiary” shall
mean each Subsidiary of a Loan Party that is organized under the
laws of a jurisdiction other than one of the fifty states of the
United States or the District of Columbia.
“Franchise Agreement”
means any franchise agreement between a Borrower and the franchisee
named therein.
“GAAP” shall mean
generally accepted accounting principles in the United States
applied on a consistent basis and subject to the terms of
Section
1.3.
“General Contract” shall
mean the agreement by and between Borrowers and the Contractor for
the construction of the Office Project and Office Project
Improvements, and any and all extensions, renewals, modifications,
amendments, supplements and replacements thereto and
therefor.
“Governmental Authority”
shall mean the government of the United States or any other nation
or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government (including any supra-national bodies
such as the European Union or the European Central
Bank).
“Guarantee” of or by any
Person (the “guarantor”) shall mean
any obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the
“primary
obligor”) in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the
guarantor (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase of)
any security for the payment thereof, (ii) to purchase or lease
property, securities or services for the purpose of assuring the
owner of such Indebtedness or other obligation of the payment
thereof, (iii) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (iv) as an account party in
respect of any letter of credit or letter of guaranty issued in
support of such Indebtedness or obligation; provided that the term
“Guarantee” shall not include endorsements for
collection or deposit in the ordinary course of business. The
amount of any Guarantee shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in
respect of which such Guarantee is made or, if not so stated or
determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith. The term
“Guarantee” used as a verb has a corresponding
meaning.
“Guarantor” shall mean (i)
each Loan Party that is not a Borrower and (ii) any other Person
that guarantees payment or performance of the Obligations from time
to time.
“Hazardous Materials”
shall mean all explosive or radioactive substances or wastes and
all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of
any nature regulated pursuant to any Environmental
Law.
“Hedge Reserves” shall
mean all reserves that the Administrative Agent, from time to time,
establishes in its Permitted Discretion for Secured Hedging
Obligations then provided to any Loan Party by a Lender-Related
Hedge Provider or outstanding.
“Hedge Termination Value”
shall mean, in respect of any one or more Hedging Transactions,
after taking into account the effect of any legally enforceable
netting agreement relating to such Hedging Transactions, (i) for
any date on or after the date such Hedging Transactions have been
closed out and termination value(s) determined in accordance
therewith, such termination value(s) and (ii) for any date prior to
the date referenced in clause (i), the amount(s) determined as the
mark-to-market value(s) for such Hedging Transactions, as
determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such
Hedging Transactions (which may include a Lender or any Affiliate
of a Lender).
“Hedging Obligations” of
any Person shall mean any and all obligations of such Person,
whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired under (i) any and all
Hedging Transactions, (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Hedging Transactions
and (iii) any and all renewals, extensions and modifications of any
Hedging Transactions and any and all substitutions for any Hedging
Transactions.
“Hedging Transaction” of
any Person shall mean (i) any transaction (including an agreement
with respect to any such transaction) now existing or hereafter
entered into by such Person that is a rate swap transaction, swap
option, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap or option, bond
option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency rate swap transaction, currency option,
spot transaction, credit protection transaction, credit swap,
credit default swap, credit default option, total return swap,
credit spread transaction, repurchase transaction, reverse
repurchase transaction, buy/sell-back transaction, securities
lending transaction, or any other similar transaction (including
any option with respect to any of these transactions) or any
combination thereof, whether or not any such transaction is
governed by or subject to any master agreement, and (ii) any and
all transactions of any kind, and the related confirmations, which
are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange
Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a
“Master
Agreement”), including any such obligations or
liabilities under any Master Agreement.
“Holdings” shall have the
meaning set forth in the introductory paragraph
hereof.
“Increasing Lender” shall
have the meaning set forth in Section 2.25(b).
“Incremental Tranche A Revolving
Commitment” shall have the meaning set forth in
Section
2.25.
“Incremental Tranche A Revolving
Commitment Amount” shall have the meaning set forth in
Section 2.25.
“Indebtedness” of any
Person shall mean, without duplication, (i) all obligations of
such Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person in respect of the deferred
purchase price of property or services (other than (a) trade
payables incurred in the ordinary course of business and (b)
accrued expenses incurred in the ordinary course of business and
not yet due and payable); (iv) all obligations of such Person under
any conditional sale or other title retention agreement(s) relating
to property acquired by such Person, (v) all Capital Lease
Obligations of such Person, (vi) all obligations, contingent or
otherwise, of such Person in respect of letters of credit,
acceptances or similar extensions of credit, (vii) all
Guarantees of such Person of the type of Indebtedness described in
clauses (i) through (vi) above, (viii) all Indebtedness of a third
party secured by any Lien on property owned by such Person, whether
or not such Indebtedness has been assumed by such Person, (ix) all
obligations of such Person, contingent or otherwise, to purchase,
redeem, retire or otherwise acquire for value any Capital Stock of
such Person, (x) all Off-Balance Sheet Liabilities and (xi) all
Hedging Obligations. The Indebtedness of any Person
shall include the Indebtedness of any partnership or joint venture
in which such Person is a general partner or a joint venturer,
except to the extent that the terms of such Indebtedness provide
that such Person is not liable therefor.
“Indemnified Taxes” shall
mean (i) Taxes other than Excluded Taxes, imposed on or with
respect to any payment made by or on account of any obligation of
any Loan Party under any Loan Document and (ii) to the extent not
otherwise described in (i), Other Taxes.
“Information Certificate”
shall mean the Information Certificate dated as of the date hereof
delivered by the Loan Parties to the Administrative Agent, in form
and substance satisfactory to the Administrative
Agent.
“Information Memorandum”
shall mean any Confidential Information Memorandum relating to the
Borrowers and the transactions contemplated by this Agreement and
the other Loan Documents required by Administrative Agent after the
Closing Date.
“Intellectual Property”
shall mean all intellectual and similar Property of a Person,
including inventions, designs, patents, copyrights, trademarks,
service marks, trade names, trade secrets, confidential or
proprietary information, customer lists, know-how, software and
databases; all embodiments or fixations thereof and all related
documentation, applications, registrations and franchises; all
licenses or other rights to use any of the foregoing; and all books
and records relating to the foregoing.
“Intellectual Property
Claim” shall mean any claim or assertion (whether in
writing, by suit or otherwise) that a Loan Party’s or any of
its Subsidiaries' ownership, use, marketing, sale or distribution
of any Inventory, Equipment, Intellectual Property or other
property violates another Person's Intellectual
Property.
“Intellectual Property Security
Agreement” shall mean any Intellectual Property
Security Agreement executed by a Loan Party owning Intellectual
Property in favor of the Administrative Agent for the benefit of
the Secured Parties.
“Interest Period” shall
mean the period
commencing on the date of this Agreement and ending on the day that
is immediately prior to the numerically corresponding day of each
subsequent month or such other period for interest rate adjustments
as set forth herein; provided that: (a) any Interest Period
which would otherwise end on a day which is not a Business Day
shall be extended to the next succeeding Business Day; and (b) any
Interest Period which begins on a day for which there is no
numerically corresponding day in a subsequent period, shall end on
the last Business Day of each subsequent period.
“Investment Grade Account
Debtor” shall mean any Account Debtor with a corporate
credit rating of BBB- or higher from S&P and a corporate family
rating of Baa3 or higher by Moody’s.
“Investment Grade Accounts Formula
Amount” shall mean, on any date of determination
thereof, (a) with respect to the Tranche A Borrowing Base, an
amount equal to 90% of the net amount of Eligible Investment Grade
Accounts on such date and (b) with respect to the Tranche A-1
Borrowing Base, an amount equal to the Tranche A-1 Borrowing Base
Advance Rate of the net amount of Eligible Investment Grade
Accounts. As used herein, the phrase “net amount of Eligible
Investment Grade Accounts” shall mean the face amount of such
Eligible Investment Grade Accounts on any date less, without double
counting, any and all returns, rebates, discounts (which may, at
Administrative Agent’s option, be calculated on shortest
terms), credits, allowances or Taxes (including sales, excise or
other taxes) at any time issued, owing, claimed by Account Debtors,
granted, outstanding or payable in connection with, or any interest
accrued on the amount of, such Eligible Investment Grade Accounts
at such date.
“Investments” shall have
the meaning set forth in Section 7.4.
“IRS” shall mean the
United States Internal Revenue Service.
“ISDA” shall mean
International Swaps and Derivatives Association, Inc. or any
successor thereto.
“ISDA Definitions” shall
mean the 2006 ISDA Definitions published by ISDA, as amended or
supplemented from time to time, or any successor definitional
booklet for interest rate derivatives published from time to time
by ISDA.
“Issuing Bank” shall mean
Truist Bank in its capacity as the issuer of Letters of Credit
pursuant to Section
2.24.
“LC Commitment” shall mean
that portion of the Aggregate Revolving Commitments that may be
used by the Borrowers for the issuance of Letters of Credit in an
aggregate face amount not to exceed $20,000,000.
“LC Disbursement” shall
mean a payment made by the Issuing Bank pursuant to a Letter of
Credit.
“LC Documents” shall mean
all applications, agreements and instruments relating to the
Letters of Credit but excluding the Letters of Credit.
“LC Exposure” shall mean,
at any time, the sum of (i) the aggregate undrawn amount of
all outstanding Letters of Credit at such time plus (ii) the aggregate
amount of all LC Disbursements that have not been reimbursed by or
on behalf of the Borrowers at such time. The LC Exposure of any
Lender shall be its Pro Rata Share of the total LC Exposure at such
time.
“Lead Arranger” shall mean
Truist Securities, Inc., in its capacity as sole lead arranger and
sole bookrunner in connection with this Agreement.
“Lender-Related Hedge
Provider” shall mean any Person that, at the time it
enters into any Hedging Transaction with any Loan Party, (i) is a
Lender or an Affiliate of a Lender and (ii) except when the
Lender-Related Hedge Provider is Truist Bank or any of its
Affiliates, has provided written notice to the Administrative Agent
within ten (10) days following the later of the Closing Date or the
consummation of the Hedging Transaction which has been acknowledged
by the Borrower Representative of (x) the existence of such Hedging
Transaction and (y) the methodology to be used by such parties in
determining the obligations under such Hedging Transaction from
time to time. In no event shall any Lender-Related Hedge Provider
acting in such capacity be deemed a Lender for purposes hereof to
the extent of and as to Secured Hedging Obligations except that
each reference to the term “Lender” in Article IX and Section 10.3(b) shall be deemed
to include such Lender-Related Hedge Provider, and in no event
shall the approval of any such Person in its capacity as
Lender-Related Hedge Provider be required in connection with the
release or termination of any security interest or Lien of the
Administrative Agent.
“Lenders” shall have the
meaning set forth in the introductory paragraph hereof and shall
include, where appropriate, the Swingline Lender, each Increasing
Lender and each Additional Lender that joins this Agreement
pursuant to Section
2.25.
“Letter of Credit” shall
mean any standby letter of credit issued pursuant to Section 2.24 by the Issuing
Bank for the account of the Borrowers pursuant to the LC
Commitment and any
Existing Letter of Credit.
“Leverage Ratio” shall
mean, as of any date, the ratio of (i) Consolidated Funded Debt as
of such date to (ii) Consolidated EBITDA for the twelve consecutive
Fiscal Months ending on or immediately prior to such date for which
financial statements are required to have been delivered under this
Agreement.
“LIBOR Index Rate” shall
mean the Screen Rate determined at approximately 11:00 am London
time two (2) Business Days prior to the commencement of the
applicable Interest Period; provided that if said rate as provided
above would be less than zero percent (0%), then LIBOR Index Rate
shall be deemed to be zero percent (0%).
“LIBOR Index Rate
Borrowing” shall mean a Borrowing comprised of LIBOR
Index Rate Loans.
“LIBOR Index Rate Loan”
shall mean a Loan bearing interest at a rate based upon the LIBOR
Index Rate.
“LIBOR Index Rate Revolving
Loan” shall mean a Revolving Loan that bears interest
based upon the LIBOR Index Rate.
“LIBOR Index Rate Term
Loan” shall mean all or any portion of the Term Loan
that bears interest based upon the LIBOR Index Rate.
“Lien” shall mean any
mortgage, pledge, security interest, lien (statutory or otherwise),
charge, encumbrance, hypothecation, assignment, deposit
arrangement, or other arrangement having the practical effect of
any of the foregoing or any preference, priority or other security
agreement or preferential arrangement of any kind or nature
whatsoever (including any conditional sale or other title retention
agreement and any capital lease having the same economic effect as
any of the foregoing).
“Lien Waiver” shall mean
each agreement granted to the Administrative Agent from any
landlord, lessor, warehouseman, processor, shipper, customs broker,
freight forwarder, bailee or other third party with respect to the
Collateral, in form and substance satisfactory to the
Administrative Agent.
“Link Staffing” shall mean
Link Staffing Services Corporation.
“Link Staffing
Acquisition” shall mean the purchase by HQ Link of the
franchisee relationships and certain other assets of the Link
Staffing Sellers from the Link Staffing Sellers pursuant to the
terms of the Link Staffing Acquisition Agreement.
“Link Staffing Acquisition
Agreement” shall mean that certain Asset Purchase
Agreement, dated as of February 12, 2021, among HQ Link and the
Link Staffing Sellers.
“Link Staffing Acquisition
Documents” shall mean, collectively, the Link Staffing
Acquisition Agreement and each other document, instrument,
certificate and agreement executed and delivered in connection
therewith.
“Link Staffing Sellers”
shall mean, collectively, Link Staffing Services Corporation,
Franlink, Inc. and Stafflink, Inc.
“Loan Documents” shall
mean, collectively, this Agreement, the Collateral Documents, the
LC Documents, the Fee Letter, all Notices of Borrowing, all Notices
of Swingline Borrower, all Borrowing Base Certificates, all
Compliance Certificates, any Subordination
Agreements, any Credit Card
Processor Agreements, any Guaranties executed by any Loan Party in
favor of the Administrative Agent, any promissory notes issued
hereunder and any and all other instruments, agreements, documents
and writings executed in connection with any of the foregoing or
any transactions relating hereto (excluding any such instruments,
agreements, documents and writings that solely evidence or govern
any Hedging Transactions, Hedging Obligations, Bank Products or
Bank Product Obligations).
“Loan Parties” shall mean
each Borrower, each Guarantor, and any other Person that is liable
for the payment of any Obligations or that has granted a Lien on
its assets in favor of the Administrative Agent to secure any
Obligations.
“Loans” shall mean all
Revolving Loans (including any Agent Advances), Swingline Loans and
the Term Loan in the aggregate or any of them, as the context shall
require, and shall include, where appropriate, any loan made
pursuant to Section
2.25.
“March 2021 Acquisitions”
shall mean, collectively, the Link Staffing Acquisition and the
Snelling Staffing Acquisition.
“March 2021 Acquisition
Agreements” shall mean, collectively, the Link
Staffing Acquisition Agreement and the Snelling Staffing
Acquisition Agreement.
“March 2021 Acquisition
Documents” shall mean, collectively, the Link Staffing
Acquisition Documents and the Snelling Staffing Acquisition
Documents.
“Material Adverse Effect”
shall mean, with respect to any event, act, condition or occurrence
of whatever nature (including any adverse determination in any
litigation, arbitration, or governmental investigation or
proceeding), whether singularly or in conjunction with any other
event or events, act or acts, condition or conditions, occurrence
or occurrences whether or not related, resulting in a material
adverse change in, or a material adverse effect on, (i) the
business, results of operations, financial condition, assets, or
liabilities of the Loan Parties and their Subsidiaries taken as a
whole, (ii) the ability of the Loan Parties to perform any of
their respective obligations under the Loan Documents, (iii) the
rights and remedies of the Administrative Agent, the Issuing Bank,
the Swingline Lender or the Lenders under any of the Loan Documents
or (iv) the legality, validity or enforceability of any of the Loan
Documents.
“Material Agreements”
shall mean (i) all agreements, indentures or notes governing the
terms of any Material Indebtedness, (ii) all employment and
non-compete agreements with management, (iii) all leases of Real
Estate, (iv) the Related Transaction Documents, (v) the Franchise
Agreements, (vi) the Office Project Contracts and (vii) all other
agreements, documents, contracts, indentures and instruments
pursuant to which (a) any Loan Party or any of its Subsidiaries are
obligated to make payments in any twelve month period of $1,000,000
or more (other than any agreements related to any Borrower’s
workers’ compensation insurance programs), (b) any Loan Party
or any of its Subsidiaries expects to receive revenue in any twelve
month period of $1,000,000 or more in the ordinary course of
business or (c) a default, breach or termination thereof could
reasonably be expected to result in a Material Adverse
Effect.
“Material Indebtedness”
shall mean any Indebtedness (other than the Loans and the Letters
of Credit) of any Loan Party or any of its Subsidiaries
individually or in an aggregate committed or outstanding principal
amount exceeding the Threshold Amount. For purposes of determining
the amount of attributed Indebtedness from Hedging Obligations, the
“principal amount” of any Hedging Obligations at any
time shall be the Net Mark-to-Market Exposure of such Hedging
Obligations.
“Moody’s” shall mean
Moody’s Investors Service, Inc. or any successor acceptable
to the Administrative Agent.
“Mortgaged Property” shall
mean, collectively, the Real Estate subject to the Mortgages
(including, without limitation, the Real Estate located at 0
Springhall Drive, Goose Creek, South Carolina, 107 Springhall
Drive, Goose Creek, South Carolina and 111 Springhall Drive, Goose
Creek, South Carolina), including, but not limited to, any Real
Estate for which a Mortgage is required to be delivered after the
date hereof pursuant to Section 5.13.
“Mortgages” shall mean,
collectively, each mortgage, deed of trust, trust deed, security
deed, debenture, deed to secure debt or other real estate security
documents delivered by any Loan Party to the Administrative Agent
from time to time, all in form and substance satisfactory to the
Administrative Agent.
“Multiemployer Plan” shall
mean any “multiemployer plan” as defined in
Section 4001(a)(3) of ERISA, which is contributed to by (or to
which there is or may be an obligation to contribute of) any Loan
Party, any of its Subsidiaries or an ERISA Affiliate, and each such
plan for the five-year period immediately following the latest date
on which any Loan Party, any of its Subsidiaries or an ERISA
Affiliate contributed to or had an obligation to contribute to such
plan.
“Net Mark-to-Market
Exposure” of any Person shall mean, as of any date of
determination with respect to any Hedging Obligation, the excess
(if any) of all unrealized losses over all unrealized profits of
such Person arising from such Hedging Obligation. “Unrealized
losses” shall mean the fair market value of the cost to such
Person of replacing the Hedging Transaction giving rise to such
Hedging Obligation as of the date of determination (assuming such
Hedging Transaction were to be terminated as of that date), and
“unrealized profits” shall mean the fair market value
of the gain to such Person of replacing such Hedging Transaction as
of the date of determination (assuming such Hedging Transaction
were to be terminated as of that date).
“Non-Consenting Lender”
shall have the meaning set forth in Section 2.27.
“Non-Defaulting Lender”
shall mean, at any time, a Lender that is not a Defaulting
Lender.
“Non-Investment Grade Accounts Formula
Amount” shall mean, on any date of determination
thereof, (a) with respect to the Tranche A Borrowing Base, an
amount equal to 85% of the net amount of Eligible Non-Investment
Grade Accounts on such date, and (b) with respect to the Tranche
A-1 Borrowing Base, an amount equal to the Tranche A-1 Borrowing
Base Advance Rate of the net amount of Eligible Non-Investment
Grade Accounts on such date. As used herein, the phrase “net
amount of Eligible Non-Investment Grade Accounts” shall mean
the face amount of such Eligible Non-Investment Grade Accounts on
any date less, without double counting, any and all returns,
rebates, discounts (which may, at Administrative Agent’s
option, be calculated on shortest terms), credits, allowances or
Taxes (including sales, excise or other taxes) at any time issued,
owing, claimed by Account Debtors, granted, outstanding or payable
in connection with, or any interest accrued on the amount of, such
Eligible Non-Investment Grade Accounts at such date.
“Non-U.S. Plan” shall mean
any plan, fund (including any superannuation fund) or other similar
program established, contributed to (regardless of whether through
direct contributions or through employee withholding) or maintained
outside the United States by any Loan Party or one or more of its
Subsidiaries primarily for the benefit of employees of any Loan
Party or such Subsidiaries residing outside the United States,
which plan, fund or other similar program provides, or results in,
retirement income, a deferral of income in contemplation of
retirement, or payments to be made upon termination of employment,
and which plan is not subject to ERISA or the Code.
“Notice of Revolving
Borrowing” shall have the meaning set forth in
Section
2.3.
“Notice of Swingline
Borrowing” shall have the
meaning set forth in Section 2.4.
“Notices of Borrowing”
shall mean, collectively, the Notices of Revolving Borrowing and
the Notices of Swingline Borrowing.
“Obligations” shall mean
(i) all amounts owing by the Loan Parties to the Administrative
Agent, the Issuing Bank, any Lender (including the Swingline
Lender) or the Lead Arranger pursuant to or in connection with this
Agreement or any other Loan Document or otherwise with respect to
any Commitment, Loan or Letter of Credit including all principal,
interest (including any interest accruing after the filing of any
petition in bankruptcy or the commencement of any insolvency,
reorganization or like proceeding relating to any Loan Party,
whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding), reimbursement obligations, obligations
pursuant to the Administrative Agent’s Erroneous Payment
Subrogation Rights, fees, expenses, indemnification and
reimbursement payments, costs and expenses (including all fees and
expenses of counsel to the Administrative Agent, the Issuing Bank
and any Lender (including the Swingline Lender) incurred pursuant
to this Agreement or any other Loan Document), whether direct or
indirect, absolute or contingent, liquidated or unliquidated, now
existing or hereafter arising hereunder or thereunder, (ii) all
Secured Hedging Obligations and (iii) all Secured Bank Product
Obligations, in each case, together with all renewals, extensions,
modifications and refinancings of any of the foregoing;
provided that, with
respect to any Guarantor, the Obligations shall not include any
Excluded Swap Obligations.
“OFAC” shall mean the U.S.
Department of the Treasury’s Office of Foreign Assets
Control.
“Off-Balance Sheet
Liabilities” of any Person shall mean (i) any
repurchase obligation or liability of such Person with respect to
accounts or notes receivable sold by such Person, (ii) any
liability of such Person under any sale and leaseback transactions
that do not create a liability on the balance sheet of such Person,
(iii) any Synthetic Lease Obligation or (iv) any obligation arising
with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not
constitute a liability on the balance sheet of such
Person.
“Office Project” shall
mean the construction of an office building and other Improvements
at the Office Project Premises.
“Office Project Contracts”
shall mean the General Contract, all other construction and
engineering contracts, any construction management contracts,
architectural contracts and other material Office Project
agreements, and any supplements or amendments thereto, and, at the
Administrative Agent’s request, any
subcontracts.
“Office Project
Improvements” shall mean the office building to be
constructed on the Office Project Premises.
“Office Project Premises”
shall mean the Real Estate owned by HQ Real Property and located at
107 Springhall Drive, Goose Creek, Berkeley County, South Carolina
29445.
“Operating Budget” shall
mean a pro-forma operating budget for the Office Project, setting
forth a line item breakdown of all costs and expenses incurred or
estimated to be incurred with respect to the Office Project
Improvements and relevant assumptions.
“OSHA” shall mean the
Occupational Safety and Health Act of 1970, as amended from time to
time, and any successor statute.
“Other Connection Taxes”
shall mean, with respect to any Recipient, Taxes imposed as a
result of a present or former connection between such Recipient and
the jurisdiction imposing such Tax (other than connections arising
from such Recipient having executed, delivered, become a party to,
performed its obligations under, received payments under, received
or perfected a security interest under, engaged in any other
transaction pursuant to or enforced any Loan Document, or sold or
assigned an interest in any Loan or Loan Document).
“Other Taxes” shall mean
all present or future stamp, court or documentary, intangible,
recording, filing or similar Taxes that arise from any payment made
under, from the execution, delivery, performance, enforcement or
registration of, from the receipt or perfection of a security
interest under, or otherwise with respect to, any Loan Document,
except any such Taxes that are Other Connection Taxes imposed with
respect to an assignment (other than an assignment made pursuant to
Section
2.25).
“Overadvance” shall have
the meaning set forth in Section 2.5(a).
“Paid in Full” or
“Payment in
Full” shall mean, with respect to the Obligations, (a)
the payment in full in cash of all outstanding Loans and the
termination of all Commitments; (b) the Cash Collateralization of
all reimbursement obligations with respect to Letters of Credit in
an amount equal to 103% of the aggregate LC Exposure of all
Lenders; (c) the payment in full of all accrued and unpaid
interest, fees and expenses in respect of the Obligations
(including any interest, fees and expenses accruing during an
insolvency proceeding (whether or not allowed in such proceeding));
(d) the Cash Collateralization of all other Obligations that are
contingent in nature or unliquidated at such time (other than
contingent indemnification obligations with respect to claims that
are not yet known); (e) the payment in full of all other
Obligations; and (f) to the extent requested by the Administrative
Agent, receipt by the Administrative Agent and the other Secured
Parties of a release from the Loan Parties in form and substance
acceptable to the Administrative Agent.
“Parent Company” shall
mean, with respect to a Lender, the “bank holding
company” (as defined in Regulation Y), if any, of such
Lender, and/or any Person owning, beneficially or of record,
directly or indirectly, a majority of the shares of such
Lender.
“Participant” shall have
the meaning set forth in Section 10.4(d).
“Participant Register”
shall have the meaning set forth in Section 10.4(d).
“Patent” shall have the
meaning assigned to such term in the Security
Agreement.
“Patriot
Act” shall mean the Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Pub. L. 107-56.
“Payment Conditions” shall
mean, with respect to any applicable transaction on any
date:
(i) no Default or Event
of Default has occurred or is continuing or would result from such
applicable transaction, and all representations and warranties of
each Loan Party set forth in the Loan Documents shall be and remain
true and correct in all material respects before and after giving
effect to such transaction;
(ii) (a)
with respect to any such date occurring prior to October 1, 2021,
after giving effect to such applicable transaction on a pro forma
basis (including the incurrence of any Indebtedness in connection
therewith and the use of the proceeds thereof), (i) Excess
Availability plus Qualified Cash, as of the date of such applicable
transaction, is greater than or equal to the greater of (A)
$6,000,000 and (B) 10% of the Aggregate Revolving Commitment Amount
and (ii) the Consolidated Fixed Charge Coverage Ratio is not less
than 1.15:1.00, calculated as of the most recently ended Fiscal
Month for which financial statements are required to have been
delivered pursuant to Section 5.1(a) or
(b);
with respect to any such date occurring on or after October 1,
2021, after giving effect to such applicable transaction on a pro
forma basis (including the incurrence of any Indebtedness in
connection therewith and the use of the proceeds thereof), (i)
Excess Availability plus Qualified Cash, as of the date of such
applicable transaction, is greater than or equal to the greater of
(A) $6,000,000 and (B) the lesser of 20% of (x) the Borrowing Base
and (y) the Aggregate Revolving Commitment Amount and (ii) the
Consolidated Fixed Charge Coverage Ratio is not less than
1.15:1.00, calculated as of the most recently ended Fiscal Month
for which financial statements are required to have been delivered
pursuant to Section
5.1(a) or (b); and
(iii) Administrative
Agent shall have received a certificate, dated as of the date of
the applicable transaction and signed by the chief financial
officer of each Loan Party, demonstrating satisfaction of the
Payment Conditions.
“Payment Office” shall
mean the office of the Administrative Agent located at 3333
Peachtree Road, NE, Atlanta, Georgia 30326, or such other location
as to which the Administrative Agent shall have given written
notice to the Borrower Representative and the other
Lenders.
“PBGC” shall mean the U.S. Pension
Benefit Guaranty Corporation referred to and defined in ERISA, and
any successor entity performing similar functions.
“Permitted Acquisition”
shall mean any Acquisition by a Borrower that occurs when the
following conditions have been satisfied:
(i) before
and after giving effect to such Acquisition and any Indebtedness
incurred in connection therewith (to the extent permitted by this
Agreement), the Payment Conditions shall have been
satisfied;
(ii) the
aggregate consideration payable in connection with such Acquisition
(including cash, equity and Indebtedness or liabilities incurred or
assumed and all transaction costs) (x) does not exceed $20,000,000,
or (y) taken together with the aggregate consideration for all
Permitted Acquisitions consummated after the Closing Date and prior
to the date thereof, does not exceed $75,000,000 (excluding in each
case the March 2021 Acquisitions);
(iii) at
least ten (10) days prior to the date of the consummation of such
Acquisition, the Borrower Representative shall have delivered to
the Administrative Agent notice of such Acquisition, together with
historical financial information and analysis with respect to the
Person whose stock or assets are being acquired and copies of the
acquisition agreement and related documents (including financial
information and analysis, environmental assessments and reports,
opinions, certificates and lien searches) and information
reasonably requested by the Administrative Agent; provided that the
acquisition agreement and related documents initially may be
provided in draft form with the finalized documents to be provided
within a reasonable period of time prior to the closing of such
acquisition;
(iv) such
Acquisition is consensual and approved by the board of directors
(or the equivalent thereof) of the Person whose stock or assets are
being acquired;
(v) the
Person or assets being acquired are in compliance with Section 7.3(b);
(vi) such
Acquisition is consummated in compliance with all Requirements of
Law, and all consents and approvals from any Governmental Authority
or other Person required in connection with such Acquisition have
been obtained;
(vii) the
Person or assets being acquired shall have positive EBITDA (other
than Acquisitions with a purchase price not in excess of $5,000,000
individually or in the aggregate) (calculated in a manner
substantially similar to “Consolidated EBITDA” to the
extent provisions of such definition are relevant) for the 12-month
period ending on the date of such Acquisition, as determined based
upon financial statements for the most recently completed fiscal
year and the most recent interim financial period completed within
45 days prior to the date of consummation of such
Acquisition;
(viii) before
and after giving effect to such Acquisition and any Indebtedness
incurred in connection therewith, each Borrower is
Solvent;
(x) the
Borrowers execute and deliver, or cause their Subsidiaries to
execute and deliver, all joinder agreements, guarantees, Collateral
Documents and other related documents required under Section 5.12;
and
(xi) the
Borrower Representative has delivered to the Administrative Agent a
certificate executed by a Responsible Officer certifying that each
of the conditions set forth above has been satisfied.
“Permitted Discretion”
shall mean a determination made in the exercise of reasonable
business judgment (from the perspective of a secured asset-based
lender).
“Permitted Equity” shall
mean equity of Holdings issued in connection with an
Acquisition.
“Permitted Investments”
shall mean:
(i) direct
obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States (or by
any agency thereof to the extent such obligations are backed by the
full faith and credit of the United States), in each case maturing
within one year from the date of acquisition thereof;
(ii) commercial
paper having the highest rating, at the time of acquisition
thereof, of S&P or Moody’s, or carrying an equivalent
rating by a nationally recognized rating agency, and in either case
maturing within six months from the date of acquisition
thereof;
(iii) certificates
of deposit, bankers’ acceptances and time deposits maturing
within 180 days of the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States or any state thereof
which has a combined capital and surplus and undivided profits of
not less than $500,000,000;
(iv) fully
collateralized repurchase agreements with a term of not more 30
days for securities described in clause (i) above and entered into
with a financial institution satisfying the criteria described in
clause (iii) above; and
(v) mutual
funds investing substantially all of its assets in any one or more
of the Permitted Investments described in clauses (i) through (iv)
above.
“Permitted Liens” shall
mean Liens expressly permitted by Section 7.2.
“Permitted Subordinated
Debt” shall mean any Indebtedness of any Loan Party or
any of its Subsidiaries that is approved by Administrative Agent in
its Permitted Discretion and is subordinated to the Obligations in
a manner satisfactory to the Administrative Agent and evidenced by
the Subordinated Debt Documents or other documents acceptable to
the Administrative Agent.
“Permitted Third Party
Bank” shall mean (i) any Lender or Affiliate of a
Lender or any Person that was a Lender or an Affiliate of a Lender
at the time an Account Control Agreement was entered into with such
Person and (ii) any other bank or other financial institution
acceptable to Administrative Agent, in the case of each of clauses
(i) and (ii), with whom any Loan Party maintains a Controlled
Account and with whom an Account Control Agreement has been
executed.
“Person” shall mean any
individual, partnership, firm, corporation, association, joint
venture, limited liability company, trust or other entity, or any
Governmental Authority.
“Plan” shall mean any
“employee benefit plan” as defined in Section 3 of
ERISA (other than a Multiemployer Plan) maintained or contributed
to by any Loan Party or any ERISA Affiliate or to which any Loan
Party or any ERISA Affiliate has or may have an obligation to
contribute, and each such plan that is subject to Title IV of ERISA
for the five-year period immediately following the latest date on
which any Loan Party or any ERISA Affiliate maintained, contributed
to or had an obligation to contribute to (or is deemed under
Section 4069 of ERISA to have maintained or contributed to or to
have had an obligation to contribute to, or otherwise to have
liability with respect to) such plan.
“Plans and Specifications”
shall mean the final plans and specifications for the construction
of the Office Project on the Office Project Premises, as submitted
to the Administrative Agent on or before the Closing Date, and all
amendments and modifications thereof approved by the Administrative
Agent.
“Pledge Agreement” shall
mean that certain Pledge Agreement dated as of the Closing Date by
and among the Loan Parties and the Administrative Agent and
acknowledged by the direct and indirect Subsidiaries of
Holdings.
“Pro Rata Share” shall
mean (i) with respect to any Class of Commitment or Loan of any
Lender at any time, a percentage, the numerator of which shall be
such Lender’s Commitment of such Class (or if such Commitment
has been terminated or expired or the Loans have been declared to
be due and payable, such Lender’s Revolving Credit Exposure
or Term Loan, as applicable), and the denominator of which shall be
the sum of all Commitments of such Class of all Lenders (or if such
Commitments have been terminated or expired or the Loans have been
declared to be due and payable, all Revolving Credit Exposure or
Term Loans, as applicable, of all Lenders) and (ii) with respect to
all Classes of Commitments and Loans of any Lender at any time, the
numerator of which shall be the sum of such Lender’s
Revolving Commitment (or if such Revolving Commitment has been
terminated or expired or the Loans have been declared to be due and
payable, such Lender’s Revolving Credit Exposure) and Term
Loan and the denominator of which shall be the sum of all
Lenders’ Revolving Commitments (or if such Revolving
Commitments have been terminated or expired or the Loans have been
declared to be due and payable, all Revolving Credit Exposure of
all Lenders funded under such Commitments) and Term
Loans.
“Properly Contested” shall
mean, with respect to any obligation of any Person, (i) such
obligation is subject to a bona fide dispute regarding amount or
such Person’s liability to pay; (ii) such obligation is being
properly contested in good faith by appropriate proceedings
promptly instituted and diligently conducted; (iii) adequate
reserves are being maintained with respect to such obligation if
required by and in accordance with GAAP; (iv) the failure to make
payment is not reasonably expected to have a Material Adverse
Effect, nor result in forfeiture or sale of any assets of such
Person; (v) no Lien is imposed on the assets of such Person, unless
bonded and stayed to the satisfaction of the Administrative Agent;
and (vi) if such obligation results from entry of a judgment or
other order, such judgment or order is stayed pending appeal or
other judicial review.
“Property” means any
interest in any kind of property or asset, whether real, personal,
or mixed or tangible or intangible.
“PTE” means a prohibited
transaction class exemption issued by the U.S. Department of Labor,
as any such exemption may be amended from time to
time.
“Public Debt” shall mean
public debt issued by Holdings in connection with an
Acquisition.
“Qualified Appraisal”
shall mean, with respect to any Property, an appraisal of such
Property conducted in a manner and with such scope and using such
methods as are acceptable to the Administrative Agent by an
appraiser selected by, or acceptable to, the Administrative Agent,
the results of which are reasonably satisfactory to the
Administrative Agent; provided, that, without limiting the
generality of the foregoing, all Real Estate appraisals must be
compliant with The Financial Institutions Reform Recovery and
Enforcement Act of 1989, as amended.
“Qualified Cash” shall
mean the amount of unrestricted cash of a Loan Party maintained at
Truist Bank in an unrestricted deposit account (other than an
Excluded Account), which deposit account is subject to the
Administrative Agent’s first priority perfected
Lien.
“Real Estate” shall mean
all real property owned or leased by a Loan Party or any of its
Subsidiaries.
“Real Estate Conditions”
shall have the meaning set forth in Section 5.16(f).
“Real Estate Documents”
shall mean, collectively, Mortgages covering all Real Estate owned
by the Loan Parties, duly executed by each applicable Loan Party,
together with (i) lender title insurance policies and endorsements,
current as-built ALTA/ACSM Land Title surveys certified to the
Administrative Agent, zoning letters, zoning reports, building
permits and certificates of occupancy, in each case relating to
such Real Estate and satisfactory in form and substance to the
Administrative Agent, (ii) (x) “Life of Loan” Federal
Emergency Management Agency Standard Flood Hazard determinations,
(y) notices, in the form required under the Flood Insurance Laws,
about special flood hazard area status and flood disaster
assistance duly executed by each Loan Party, and (z) if any
improved real property encumbered by any Mortgage is located in a
special flood hazard area, a policy of flood insurance that is
on terms satisfactory to the Administrative Agent, (iii) evidence
that counterparts of such Mortgages have been recorded in all
places to the extent necessary or desirable, in the judgment of the
Administrative Agent, to create a valid and enforceable first
priority Lien on such Real Estate in favor of the Administrative
Agent for the benefit of the Secured Parties (or in favor of such
other trustee as may be required or desired under local law), (iv)
an opinion of counsel in each state in which such Real Estate is
located in form and substance and from counsel satisfactory to the
Administrative Agent, (v) a duly executed Environmental Indemnity
with respect thereto, (vi) Phase I Environmental Site Assessment
Reports, consistent with American Society of Testing and Materials
(ASTM) Standard E 1527-05, and applicable state requirements, on
all of the owned Real Estate, dated no more than six (6) months
prior to the Closing Date (or date of the applicable Mortgage if
provided post-closing), prepared by environmental engineers
satisfactory to the Administrative Agent, all in form and substance
satisfactory to the Administrative Agent, and such environmental
review and audit reports, including Phase II reports, with respect
to the Real Estate of any Loan Party as the Administrative Agent
shall have requested, in each case together with letters executed
by the environmental firms preparing such environmental reports, in
form and substance satisfactory to the Administrative Agent,
authorizing the Administrative Agent and the Lenders to rely on
such reports, and the Administrative Agent shall be satisfied with
the contents of all such environmental reports and (vii) such other
reports, documents, instruments, opinions and agreements as the
Administrative Agent shall request, each in form and substance
reasonably satisfactory to the Administrative Agent.
“Recipient” shall mean, as
applicable, (i) the Administrative Agent, (ii) any Lender and (iii)
the Issuing Bank.
“Reference Time” shall
mean, with respect to any setting of the then-current Benchmark for
any calendar month, (1) if such Benchmark is the LIBOR Index Rate,
approximately 11:00 a.m. (London time) as of the date that is two
Business Days preceding the date of such setting, and (2) if such
Benchmark is not the LIBOR Index Rate, the time determined by the
Administrative Agent in its reasonable discretion.
“Register” shall have the
meaning set forth in Section 10.4(c).
“Regulation D” shall
mean Regulation D of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and
any successor regulations.
“Regulation T” shall
mean Regulation T of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and
any successor regulations.
“Regulation U” shall
mean Regulation U of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and
any successor regulations.
“Regulation X” shall
mean Regulation X of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and
any successor regulations.
“Regulation Y” shall
mean Regulation Y of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time, and
any successor regulations.
“Related Parties” shall
mean, collectively, with respect to any specified Person, such
Person’s Affiliates and the respective managers,
administrators, trustees, partners, directors, officers, employees,
agents, advisors or other representatives of such Person and such
Person’s Affiliates, and the respective successors and
assigns of such Person and such Person’s
Affiliates.
“Related Transaction
Documents” shall mean the March 2021 Acquisition
Documents and all other agreements or instruments executed in
connection with the Related Transactions.
“Related Transactions”
shall mean, collectively, the March 2021 Acquisitions, the payment
of all fees, costs and expenses associated with all of the
foregoing and the execution and delivery of all Related Transaction
Documents.
“Release” shall mean any
release, spill, emission, leaking, dumping, injection, pouring,
deposit, disposal, discharge, dispersal, leaching or migration into
the environment (including ambient air, surface water, groundwater,
land surface or subsurface strata) or within any building,
structure, facility or fixture.
“Relevant Governmental
Body” shall mean the Federal Reserve Board and/or the
Federal Reserve Bank of New York, or a committee officially
endorsed or convened by the Federal Reserve Board and/or the
Federal Reserve Bank of New York or any successor
thereto.
“Rent Reserve” shall mean,
with respect to any location not owned by a Loan Party (i) all past
due rent and other amounts owing by any Loan Party to any landlord,
warehouseman, processor, repairmen, mechanic, shipper, freight
forwarder, broker or other Person who possesses any Collateral or
could assert a Lien on any Collateral and (ii) an amount equal to
three (3) months’ rental expense for such location (or such
other amount as the Administrative Agent may deem appropriate in
its Permitted Discretion; provided, that there shall be no Rent
Reserve with respect to any such location with respect to which the
Administrative Agent has received a Lien Waiver.
“Replacement Lender” shall
have the meaning set forth in Section 2.27.
“Reporting Trigger Period”
shall mean any period:
(i) from
any date that Excess Availability is less than the greater of (x)
20% of the lesser of the Aggregate Revolving Commitment Amount and
the Borrowing Base and (y) $7,500,000 (the “Reporting Trigger
Threshold”), in each case, to the date that
Availability shall have been at least the Reporting Trigger
Threshold for thirty (30) consecutive
calendar days; or
(ii) when
any Default or Event of Default exists.
“Required Lenders” shall
mean, at any time, Lenders holding more than 50% of the Aggregate
Revolving Commitments and the aggregate outstanding Term Loans at
such time or, if the Lenders have no Commitments outstanding, then
Lenders holding more than 50% of the aggregate outstanding
Revolving Credit Exposure and Term Loans of the Lenders at such
time; provided
that, to the extent that any Lender is a Defaulting Lender, such
Defaulting Lender and all of its Revolving Commitments, Revolving
Credit Exposure and Term Loans shall be excluded for purposes of
determining Required Lenders. Notwithstanding the foregoing,
at any time there are two but no more than three Lenders (who are
not Affiliates of one another or Defaulting Lenders),
“Required Lenders” must include at least two Lenders
(who are not Affiliates of one another).
“Requirement of Law” shall
mean, for any Person, the articles or certificate of incorporation,
bylaws, partnership certificate and agreement, or limited liability
company certificate of organization and agreement, as the case may
be, and other organizational and governing documents of such
Person, and any law, treaty, rule or regulation, or determination
of a Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or
any of its property is subject.
“Reserves” shall mean
reserves that the Administrative Agent may establish from time to
time in its Permitted Discretion for such purposes as the
Administrative Agent shall deem necessary or appropriate. Without
limiting the generality of the foregoing, the following reserves
(without duplication) shall be deemed an exercise of the
Administrative Agent’s Permitted Discretion: (i) reserves for
accrued but unpaid ad
valorem, excise and personal property tax liability; (ii)
Bank Product Reserves; (iii) [reserved]; (iv) [reserved]; (v) reserves for any
required royalty or similar licensing payments; (vi) Rent Reserves;
(vii) reserves for any other matter that has a negative impact on
the value of the Collateral, including, without limitation, for any
tax existing on the Closing Date; (viii) the Dilution Reserve, (ix)
any amounts which any Loan Party is obligated to pay pursuant to
the provisions of any of the Loan Documents that Administrative
Agent elects to pay for the account of such Loan Party in
accordance with any of the Loan Documents and (x) reserves for
claims, indemnification obligations and other potential setoffs
owed by a Borrower to an Account Debtor with respect to any
Eligible Account, as determined by Administrative Agent in its
Permitted Discretion; provided, that absent the existence of an
Event of Default, Administrative Agent will not establish any
reserves for amounts owing by Borrowers to franchisees or amounts
owing by Borrowers in respect of payroll.
“Resolution Authority”
shall mean an EEA Resolution Authority or, with respect to any UK
Financial Institution, a UK Resolution Authority.
“Responsible Officer”
shall mean (x) with respect to certifying compliance with the
financial covenants set forth in Article VI and delivering any
Borrowing Base Certificates, the chief executive officer, the chief
financial officer or the treasurer of the Borrower Representative
and (y) with respect to all other provisions, any of the president,
the chief executive officer, the chief operating officer, the chief
financial officer, the treasurer, the chief legal officer, or any
executive vice president of any Loan Party or such other
representative of such Loan Party as may be designated in writing
by any one of the foregoing with the consent of the Administrative
Agent.
“Restricted Payment” shall
mean, for any Person, any dividend or distribution on any class of
its Capital Stock, or any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase,
redemption, retirement, defeasance or other acquisition of any
shares of its Capital Stock, any Indebtedness subordinated to the
Obligations or any Guarantee thereof or any options, warrants or
other rights to purchase such Capital Stock or such Indebtedness,
whether now or hereafter outstanding, or any management or similar
fees.
“Revolving Borrowing”
shall mean a Borrowing of Revolving Loans.
“Revolving Commitment”
shall mean, with respect to each Lender, the Tranche A Revolving
Commitment and the Tranche A-1 Revolving Commitment of such
Lender.
“Revolving Credit
Exposure” shall mean, with respect to any Lender at
any time, the sum of the Tranche A Revolving Credit Exposure and
the Tranche A-1 Revolving Credit Exposure of such
Lender.
“Revolving Loan” shall
mean a Tranche A Revolving Loan or a Tranche A-1 Revolving
Loan.
“S&P” shall mean
Standard & Poor’s Financial Services LLC, a subsidiary of
The McGraw-Hill Companies, Inc., or any successor acceptable to the
Administrative Agent.
“Sanctioned Country” shall
mean, at any time, a country, territory or region that is, or whose
government is, the subject or target of any Sanctions including the
Crimea region of Ukraine, Cuba, Iran, North Korea and
Syria.
“Sanctioned Person” shall
mean, at any time, (i) any Person that is the subject or target of
any Sanctions, (ii) any Person located, organized, operating or
resident in a Sanctioned Country or (iii) any Person owned or
controlled by any such Person.
“Sanctions” shall mean
economic or financial sanctions or trade embargoes imposed,
administered or enforced from time to time by (i) the U.S.
government, including those administered by OFAC or the U.S.
Department of State, (ii) the United Nations Security Council, the
European Union or Her Majesty’s Treasury of the United
Kingdom or (iii) any other relevant sanctions
authority.
“Screen Rate” shall mean
the average rate quoted by Bloomberg Finance L.P., or any quoting
service or commonly available source utilized by Administrative
Agent on the determination date for deposits in U.S. Dollars
offered in the London interbank market for one month.
“Secured Bank Product
Obligations” shall mean, collectively, all obligations
and other liabilities of any Loan Party and any of its Subsidiaries
to any Bank Product Providers arising with respect to any Bank
Products.
“Secured Hedging
Obligations” shall mean, collectively, all Hedging
Obligations of any Loan Parties and any of its Subsidiaries to any
Lender-Related Hedge Providers.
“Secured Parties” shall
mean the Administrative Agent, the Lenders, the Issuing Bank, the
Lender-Related Hedge Providers and the Bank Product
Providers.
“Security Agreement” shall
mean that certain Guaranty and Security Agreement dated as of
the date hereof made by the Loan Parties in favor of the
Administrative Agent for the benefit of the Secured Parties, in
form and substance satisfactory to the Administrative
Agent.
“Sellers” shall mean,
collectively, the Link Staffing Sellers and the Snelling Staffing
Sellers.
“Snelling Staffing” shall
mean Snelling Staffing, LLC.
“Snelling Staffing
Sellers” shall mean, collectively, Snelling Staffing,
LLC, Snelling Services, LLC, Snelling Employment, LLC, Snelling
Medical Staffing, LLC and Snelling Investments, Inc.
“Snelling Staffing
Acquisition” shall mean the purchase by HQ Snelling of
all of the assets of the Snelling Staffing Sellers from the
Snelling Staffing Sellers pursuant to the terms of the Snelling
Staffing Acquisition Agreement.
“Snelling Staffing Acquisition
Agreement” shall mean that certain Asset Purchase
Agreement, dated as of January 29, 2021, among HQ Snelling,
Holdings, Snelling Holdings, LLC, and the Snelling Staffing
Sellers.
“Snelling Staffing Acquisition
Documents” shall mean, collectively, the Snelling
Staffing Acquisition Agreement and each other document, instrument,
certificate and agreement executed and delivered in connection
therewith.
“SOFR” shall mean, with
respect to any Business Day, a rate per annum equal to the secured
overnight financing rate for such Business Day published by the
SOFR Administrator on the SOFR Administrator’s Website at
approximately 8:00 a.m. (New York City time) on the immediately
succeeding Business Day.
“SOFR Administrator” shall
mean the Federal Reserve Bank of New York (or a successor
administrator of the secured overnight financing
rate).
“SOFR Administrator’s
Website” shall mean the website of the Federal Reserve
Bank of New York, currently at http://www.newyorkfed.org, or any
successor source for the secured overnight financing rate
identified as such by the SOFR Administrator from time to
time.
“Solvent” shall mean, with
respect to any Person on a particular date, that on such date (i)
the fair value of the property of such Person is greater than the
total amount of liabilities, including subordinated and contingent
liabilities, of such Person; (ii) the present fair saleable value
of the assets of such Person is not less than the amount that will
be required to pay the probable liability of such Person on its
debts and liabilities, including subordinated and contingent
liabilities as they become absolute and matured; (iii) such Person
does not intend to, and does not believe that it will, incur debts
or liabilities beyond such Person’s ability to pay as such
debts and liabilities mature; and (iv) such Person is not engaged
in a business or transaction, and is not about to engage in a
business or transaction, for which such Person’s property
would constitute an unreasonably small capital. The amount of
contingent liabilities (such as litigation, guaranties and pension
plan liabilities) at any time shall be computed as the amount that,
in light of all the facts and circumstances existing at the time,
represents the amount that would reasonably be expected to become
an actual or matured liability.
“Subordinated Debt
Documents” shall mean all loan agreements, notes,
guaranties and other material agreements governing or evidencing
any Permitted Subordinated Debt and all other material documents
relating thereto.
“Subordination Agreement”
shall mean any subordination agreement among the holders of the
Permitted Subordinated Debt, the Administrative Agent and the Loan
Parties, in form and substance satisfactory to the Administrative
Agent.
“Subsidiary” shall mean,
with respect to any Person (the “parent”) at any date, any
corporation, partnership, joint venture, limited liability company,
association or other entity the accounts of which would be
consolidated with those of the parent in the parent’s
consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any
other corporation, partnership, joint venture, limited liability
company, association or other entity (i) of which securities or
other ownership interests representing more than 50% of the equity
or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests
are, as of such date, owned, controlled or held or (ii) that is, as
of such date, otherwise controlled, in each case, by the parent, by
one or more subsidiaries of the parent, or by the parent and one or
more subsidiaries of the parent. Unless otherwise indicated, all
references to “Subsidiary” hereunder shall mean a
Subsidiary of Holdings.
“Supermajority Revolving
Lenders” shall mean, at any time, Revolving Lenders
holding more than 66 2/3% of the Aggregate Revolving Commitments at
such time or, if the Revolving Lenders have no Revolving
Commitments outstanding, then Revolving Lenders holding more than
66 2/3% of the aggregate outstanding Revolving Credit Exposure of
the Lenders at such time; provided that, to the extent
that any Revolving Lender is a Defaulting Lender, such Defaulting
Lender and all of its Revolving Commitments and Revolving Credit
Exposure shall be excluded for purposes of determining
Supermajority Revolving Lenders. Notwithstanding the foregoing, at
any time there are two but no more than three Revolving Lenders
(who are not Affiliates of one another or Defaulting Lenders),
“Supermajority Revolving Lenders” must include at least
two Revolving Lenders (who are not Affiliates of one
another).
“Swap Obligation” shall
mean, with respect to any Guarantor, any obligation to pay or
perform under any agreement, contract or transaction that
constitutes a “swap” within the meaning of Section
1a(47) of the Commodity Exchange Act.
"Swingline Borrowing" shall mean
a Borrowing comprised of Swingline Loans.
“Swingline Commitment”
shall mean, from and after the date Truist Bank is not the sole
Lender, the commitment of the Swingline Lender to make Swingline
Loans in an aggregate principal amount at any time outstanding not
to exceed $6,000,000.
“Swingline Exposure” shall
mean, at any time with respect to each Lender, the principal amount
of the Swingline Loans in which such Lender is legally obligated
either to make a Revolving Loan or to purchase a participation in
accordance with Section
2.4, which shall equal such Lender’s Pro Rata Share of
all outstanding Swingline Loans.
“Swingline Lender” shall
mean Truist Bank, in its capacity as the swingline
lender.
“Swingline Loan” shall
mean a loan made to the Borrowers by the Swingline Lender under the
Swingline Commitment.
“Synthetic Lease” shall
mean a lease transaction under which the parties intend that
(i) the lease will be treated as an “operating
lease” by the lessee pursuant to Accounting Standards
Codification Sections 840-10 and 840-20, as amended, and (ii) the
lessee will be entitled to various tax and other benefits
ordinarily available to owners (as opposed to lessees) of like
property.
“Synthetic Lease
Obligations” shall mean, with respect to any Person,
the sum of (i) all remaining rental obligations of such Person as
lessee under Synthetic Leases which are attributable to principal
and, without duplication, (ii) all rental and purchase price
payment obligations of such Person under such Synthetic Leases
assuming such Person exercises the option to purchase the lease
property at the end of the lease term.
“Target” shall mean,
individually and collectively, Snelling Staffing and Link
Staffing.
“Taxes” shall mean any and
all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees and
charges imposed by any Governmental Authority, including any
interest, additions to tax and penalties applicable
thereto.
“Term Loan” shall mean a
term loan made by a Lender to the Borrowers pursuant to
Section 2.7.
“Term Loan
Commitment” shall mean, with respect to each
Lender, the obligation of such Lender to make a Term Loan to the
Borrowers hereunder on the Closing Date, in a principal amount not
exceeding the amount set forth with respect to such Lender on
Schedule II. The
aggregate principal amount of all Lenders’ Term Loan
Commitments as of the Closing Date is $3,153,500.
“Term Loan Maturity Date”
shall mean, with respect to the Term Loans, the earlier of (i) June
29, 2036, (ii) the Tranche A Revolving Commitment Termination Date
and (iii) the date on which the principal amount of all outstanding
Term Loans have been declared or automatically have become due and
payable (whether by acceleration or otherwise).
“Term SOFR” shall mean,
for an interest period selected by the Administrative Agent as of
the Reference Time, the forward-looking term rate based on SOFR
that has been selected or recommended by the Relevant Governmental
Body.
“Term SOFR Notice” shall
mean a notification by the Administrative Agent to the Lenders and
the Borrower Representative of the occurrence of a Term SOFR
Transition Event.
“Term SOFR Transition
Event” shall mean the determination by the
Administrative Agent that (a) Term SOFR has been recommended for
use by the Relevant Governmental Body, (b) the administration of
Term SOFR is administratively feasible for the Administrative Agent
and (c) a Benchmark Transition Event has previously occurred
resulting in a Benchmark Replacement in accordance with
Section 2.18 that
is not Term SOFR.
“Threshold Amount” shall
mean $750,000.
“Title Insurance Policy”
shall mean an ALTA mortgagee’s title insurance policy to be
issued by a national title insurance company in an amount from time
to time acceptable to the Administrative Agent showing fee simple
title to the Office Project Premises to be vested in HQ Real
Property and insuring the Mortgage as a first Lien on the Office
Project Premises, subject only to exceptions permitted by the
Administrative Agent, and otherwise in form and substance
acceptable to the Administrative Agent.
“Trademark” shall have the
meaning assigned to such term in the Security
Agreement.
“Tranche A Availability”
shall mean, on any date of determination, an amount equal to the
lesser of (i) the Aggregate Tranche A Revolving Commitments less
the amount of Reserves established under Section 2.2(d) hereof and
(ii) the Tranche A Borrowing Base as most recently reported by
the Borrower Representative in accordance with this
Agreement.
“Tranche A Availability
Period” shall mean the period from the Closing Date to
but excluding the Tranche A Revolving Commitment Termination
Date.
“Tranche A Borrowing Base”
shall mean, as of any date of determination by the Administrative
Agent, from time to time, an amount equal to:
(a)
the sum
of:
(1) the
applicable Investment Grade Accounts Formula Amount,
plus
(2) the
applicable Non-Investment Grade Accounts Formula Amount,
minus
(b)
the
Reserves.
“Tranche A Overadvance”
shall mean, on any date, the amount (if any) by which the Aggregate
Tranche A Revolving Credit Exposure exceeds the lesser of the
Aggregate Tranche A Commitments and the Tranche A Borrowing
Base.
“Tranche A Revolving
Commitment” shall mean, with respect to each Tranche A
Revolving Lender, the commitment of such Tranche A Revolving Lender
to make Tranche A Revolving Loans to the Borrowers and to acquire
participations in Letters of Credit and Swingline Loans in an
aggregate principal amount not exceeding the amount set forth with
respect to such Tranche A Revolving Lender on Schedule II, as such schedule
may be amended pursuant to Section 2.25, or, in the case
of a Person becoming a Tranche A Revolving Lender after the Closing
Date, the amount of the assigned “Tranche A Revolving
Commitment” as provided in the Assignment and Acceptance
executed by such Person as an assignee, or the joinder executed by
such Person, in each case as such commitment may subsequently be
increased or decreased pursuant to the terms hereof. For the
avoidance of doubt, each Lender shall maintain a proportionate
share of Tranche A Revolving Commitments that is equal to its
proportionate share of Tranche A-1 Revolving Commitments and the
Term Loan, subject to such Lender’s right to assign
participations in its Commitments and Obligations in accordance
with Section
10.4(d) hereof.
“Tranche A Revolving Commitment
Termination Date” shall mean the earliest of (i) June
29, 2026, (ii) the date on which the Tranche A Revolving
Commitments are terminated pursuant to Section 2.10 and (iii) the date
on which all amounts outstanding under this Agreement have been
declared or have automatically become due and payable (whether by
acceleration or otherwise).
“Tranche A Revolving Credit
Exposure” shall mean, with respect to any Tranche A
Revolving Lender at any time, the sum of the outstanding principal
amount of such Tranche A Revolving Lender's Tranche A Revolving
Loans, LC Exposure, Swingline Exposure and Agent Advance
Exposure.
“Tranche
A Revolving Lender” shall mean each Lender which has a
Tranche A Revolving Commitment (without giving effect to any
termination thereof if there are any outstanding Letters of Credit
or Swingline Loans) or which has any outstanding Tranche A
Revolving Loans.
“Tranche A Revolving Loan”
shall mean a loan made by a Tranche A Revolving Lender (other than
the Swingline Lender) to the Borrowers under its Tranche A
Revolving Commitment.
“Tranche A-1 Availability”
shall mean, on any date of determination, an amount equal to the
lesser of (i) the Aggregate Tranche A-1 Revolving Commitments less
the amount of Reserves established under Section 2.2(d) hereof and
(ii) the Tranche A-1 Borrowing Base as most recently reported
by the Borrower Representative in accordance with this
Agreement.
“Tranche A-1 Availability
Period” shall mean the period from the Closing Date to
but excluding the applicable date set forth in clause (i) of the
definition of Tranche A-1 Revolving Commitment Termination
Date.
“Tranche A-1 Borrowing
Base” shall mean, as of any date of determination by
the Administrative Agent, from time to time, an amount equal
to:
(a)
the sum
of:
(1) the
applicable Investment Grade Accounts Formula Amount,
plus
(2) the
applicable Non-Investment Grade Accounts Formula Amount,
minus
(b)
the
Reserves.
“Tranche A-1 Borrowing Base Advance
Rate” shall mean, on any date of determination, zero
percent (-0-%).
“Tranche A-1 Revolving
Commitment” shall mean, with respect to each Tranche
A-1 Revolving Lender, the commitment of such Tranche A-1 Revolving
Lender to make Tranche A-1 Revolving Loans to the Borrowers in an
aggregate principal amount not exceeding the amount set forth with
respect to such Tranche A-1 Revolving Lender on Schedule II, or, in the case of
a Person becoming a Tranche A-1 Revolving Lender after the Closing
Date, the amount of the assigned “Tranche A-1 Revolving
Commitment” as provided in the Assignment and Acceptance
executed by such Person as an assignee, in each case, as such
commitment may subsequently be increased or decreased pursuant to
the terms hereof. For the avoidance of doubt, each Lender shall
maintain a proportionate share of Tranche A-1 Revolving Commitments
that is equal to its proportionate share of Tranche A Revolving
Commitments and the Term Loan, subject to the right of such Lender
to assign participations in the Commitments and Obligations in
accordance with this Agreement, including under Section 10.4(d)
hereof.
“Tranche A-1 Revolving Commitment
Termination Date” shall mean the first to occur of (i)
the later of (a) the date three (3) years following the Closing
Date and (b) the first date thereafter when no Default or Event of
Default then exists or would be caused by Payment in Full of the
Tranche A-1 Revolving Loans and no Overadvance exists or would be
caused by any payment of the Tranche A-1 Revolving Loans in
connection with such termination of the Tranche A-1 Revolving
Commitment, (ii) the Tranche A Revolving Commitment Termination
Date, (iii) the date on which the Tranche A-1 Revolving Commitments
are terminated pursuant to Section 2.10 and (iv) the date on which
all amounts outstanding under this Agreement have been declared or
have automatically become due and payable (whether by acceleration
or otherwise).
“Tranche A-1 Revolving Credit
Exposure” shall mean, with respect to any Tranche A-1
Revolving Lender at any time, the sum of the outstanding principal
amount of such Tranche A-1 Revolving Lender's Tranche A-1 Revolving
Loans plus, to the extent not included in Tranche A Revolving
Credit Exposure pursuant to the terms hereof, LC Exposure,
Swingline Exposure and Agent Advance Exposure.
“Tranche A-1 Revolving
Lender” shall mean each Lender which has a Tranche A-1
Revolving Commitment (without giving effect to any termination
thereof if there are any outstanding Letters of Credit or Swingline
Loans) or which has any outstanding Tranche A-1 Revolving
Loans.
“Tranche A-1 Revolving
Loan” shall mean a loan made by a Tranche A-1
Revolving Lender (other than the Swingline Lender) to the Borrowers
under its Tranche A-1 Revolving Commitment.
“Type”, when used in
reference to a Loan or a Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing,
is determined by reference to the LIBOR Index Rate or the Base
Rate.
“UK Financial Institution”
shall mean any BRRD Undertaking (as such term is defined under the
PRA Rulebook (as amended form time to time) promulgated by the
United Kingdom Prudential Regulation Authority) or any person
falling within IFPRU 11.6 of the FCA Handbook (as amended from time
to time) promulgated by the United Kingdom Financial Conduct
Authority, which includes certain credit institutions and
investment firms, and certain affiliates of such credit
institutions or investment firms.
“UK Resolution Authority”
shall mean the Bank of England or any other public administrative
authority having responsibility for the resolution of any UK
Financial Institution.
“Unadjusted Benchmark
Replacement” shall mean the Benchmark Replacement
excluding the Benchmark Replacement Adjustment.
“Unfinanced Cash Capital
Expenditures” shall mean, for any period, the amount
of Capital Expenditures made by the Loan Parties and their
Subsidiaries during such period in cash, but excluding any such
Capital Expenditures financed with Indebtedness permitted under
Section
7.1(c).
“Unfunded Pension
Liability” of any Plan shall mean the amount, if any,
by which the value of the accumulated plan benefits under the Plan,
determined on a plan termination basis in accordance with actuarial
assumptions at such time consistent with those prescribed by the
PBGC for purposes of Section 4044 of ERISA, exceeds the fair market
value of all Plan assets allocable to such liabilities under Title
IV of ERISA (excluding any accrued but unpaid
contributions).
“Uniform Commercial Code”
or “UCC” shall mean the
Uniform Commercial Code as in effect from time to time in the State
of Georgia.
“United States” or
“U.S.”
shall mean the United States of America.
“U.S. Borrower” shall mean
any Borrower that is a U.S. Person.
“U.S. Person” shall mean
any Person that is a “United States person” as defined
in Section 7701(a)(30) of the Code.
“U.S. Tax Compliance
Certificate” shall have the meaning set forth in
Section
2.22(g)(ii)(B)(iii).
“Withdrawal Liability”
shall mean liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
“Withholding Agent” shall
mean any Borrower, any Loan Party or the Administrative Agent, as
applicable.
“Write-Down and Conversion
Powers” shall mean, (a) with respect to any EEA
Resolution Authority, the write-down and conversion powers of such
EEA Resolution Authority from time to time under the Bail-In
Legislation for the applicable EEA Member Country, which write-down
and conversion powers are described in the EU Bail-In Legislation
Schedule, and (b) with respect to the United Kingdom, any powers of
the applicable Resolution Authority under the Bail-In Legislation
to cancel, reduce, modify or change the form of a liability of any
UK Financial Institution or any contract or instrument under which
that liability arises, to convert all or part of that liability
into shares, securities or obligations of that person or any other
person, to provide that any such contract or instrument is to have
effect as if a right had been exercised under it or to suspend any
obligation in respect of that liability or any of the powers under
that Bail-In Legislation that are related to or ancillary to any of
those powers.
. For
purposes of this Agreement, Loans may be classified and referred to
by Class (e.g. “Revolving Loan”, “Swingline
Loan” or “Term Loan”) or by Type (e.g.
“LIBOR Index Rate Loan” or “Base Rate
Loan”) or by Class and Type (e.g. “LIBOR Index Rate
Revolving Loan” or “LIBOR Index Rate Term Loan”).
Borrowings also may be classified and referred to by Class (e.g.
“Revolving Borrowing” or “Swingline
Borrowing”) or by Type (e.g. “LIBOR Index Rate
Borrowing”).
.
Unless otherwise defined or specified herein, all accounting terms
used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to
be delivered hereunder shall be prepared, in accordance with GAAP
as in effect from time to time, applied on a basis consistent with
the most recent audited consolidated financial statement of
Holdings delivered pursuant to Section 5.1(a); provided that if the Borrower
Representative notifies the Administrative Agent that the Borrowers
wish to amend any covenant in Article VI to eliminate the
effect of any change in GAAP on the operation of such covenant (or
if the Administrative Agent notifies the Borrower Representative
that the Required Lenders wish to amend Article VI for such purpose),
then the Borrowers’ compliance with such covenant shall be
determined on the basis of GAAP in effect immediately before the
relevant change in GAAP became effective, until either such notice
is withdrawn or such covenant is amended in a manner satisfactory
to the Borrowers and the Required Lenders. Notwithstanding any
other provision contained herein, all terms of
an accounting or financial nature used herein shall be construed,
and all computations of amounts and ratios referred to herein shall
be made, without giving effect to any election under Accounting
Standards Codification Section 825-10 (or any other Financial
Accounting Standard having a similar result or effect) to value any
Indebtedness or other liabilities of any Loan Party or any
Subsidiary of any Loan Party at “fair value”, as
defined therein.
.
(a) The definitions of
terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter
forms. The words “include”, “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation”. The word
“will” shall be construed to have the same meaning and
effect as the word “shall”. In the computation of
periods of time from a specified date to a later specified date,
the word “from” means “from and including”
and the word “to” means “to but excluding”.
Unless the context requires otherwise, (i) any definition of or
reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or
other document as it was originally executed or as it may from time
to time be amended, restated, supplemented or otherwise modified
(subject to any restrictions on such amendments, restatements,
supplements or modifications set forth herein), (ii) any reference
herein to any Person shall be construed to include such
Person’s successors and permitted assigns, (iii) the words
“hereof”, “herein” and
“hereunder” and words of similar import shall be
construed to refer to this Agreement as a whole and not to any
particular provision hereof, (iv) all references to Articles,
Sections, Exhibits and Schedules shall be construed to refer
to Articles, Sections, Exhibits and Schedules to this
Agreement, (v) all references to a specific time shall be construed
to refer to the time in the city and state of the Administrative
Agent’s principal office, unless otherwise indicated and (vi)
any definition of or reference to any law shall include all
statutory and regulatory provisions consolidating, amending, or
interpreting any such law and any reference to or definition of any
law or regulation, unless otherwise specified, shall refer to such
law or regulation as amended, modified or supplemented from time to
time. Any reference to a time herein shall be to such time in
Atlanta, Georgia.
(b) All other
capitalized terms contained in this Agreement and not otherwise
defined herein shall have, when the context so indicates, the
meanings provided for by the UCC. Without limiting the generality
of the foregoing, the following terms shall have the meaning
ascribed to them in the UCC: Account, Chattel Paper, Commercial
Tort Claim, Deposit Account, Document, Electronic Chattel Paper,
Equipment, Fixtures, Goods, General Intangible, Instrument,
Inventory, Investment Property, Letter-of-Credit Right, Payment
Intangible, Security, Securities Account, and
Software.
. For
all purposes under the Loan Documents, in connection with any
division or plan of division under Delaware law (or any comparable
event under a different jurisdiction’s laws): (a) if any
asset, right, obligation or liability of any Person becomes the
asset, right, obligation or liability of a different Person, then
it shall be deemed to have been transferred from the original
Person to the subsequent Person, and (b) if any new Person comes
into existence, such new Person shall be deemed to have been
organized on the first date of its existence by the holders of its
equity interests at such time.
(a) . The London
interbank offered rate (“LIBOR”) is intended to
represent the rate at which contributing banks could obtain
short-term borrowings from one another in the London interbank
market. On March 5, 2021, the Financial Conduct Authority ("FCA"),
the regulatory supervisor of LIBOR's administrator, announced in a
public statement the future cessation of the 35 LIBOR benchmark
settings currently published by ICE Benchmark administration. This
public statement constitutes a Benchmark Transition Event. To the
extent the Maturity Date goes beyond the cessation dates indicated
in the FCA’s announcement, an alternate rate of interest will
be determined at the appropriate time in accordance with
Section 2.16(b) for
any applicable tenors of USD LIBOR. Upon the occurrence of a
Benchmark Transition Event, a Term SOFR Transition Event or an
Early Opt-in Election, Section 2.18(b) and
(c) provide the
mechanism for determining an alternative rate of interest. The
Administrative Agent will promptly notify the Borrower
Representative, pursuant to Section 2.18(e), of any change
to the reference rates upon which the interest rate for LIBOR Index
Rate Loans is based. However, the Administrative Agent does not
warrant or accept any responsibility for, and shall not have any
liability with respect to, the administration, submission or any
other matter related to LIBOR or the LIBOR Index Rate or with
respect to any alternative or successor rate thereto, or
replacement rate thereof (including, without limitation, (i) any
such alternative, successor or replacement rate implemented
pursuant to Section
2.18(b) or (c), whether upon the
occurrence of a Benchmark Transition Event, a Term SOFR Transition
Event or an Early Opt-in Election, and (ii) the implementation of
any Benchmark Replacement Conforming Changes pursuant to Section
2.18(d)), including
without limitation, whether the composition or characteristics of
any such alternative, successor or replacement reference rate will
be similar to, or produce the same value or economic equivalence
of, the LIBOR Index Rate or have the same volume or liquidity as
did LIBOR prior to its discontinuance or
unavailability.
ARTICLE II
.
Subject to and upon the terms and conditions herein set forth,
(i) the Tranche A Revolving Lenders hereby establish in favor
of the Borrowers a revolving credit facility pursuant to which each
Tranche A Revolving Lender severally agrees (to the extent of such
Tranche A Revolving Lender’s Tranche A Revolving Commitment)
to make Tranche A Revolving Loans to the Borrowers in accordance
with Section
2.2(a); (ii) the Tranche A-1 Revolving Lenders hereby
establish in favor of the Borrowers a “first-in,
last-out” revolving credit facility pursuant to which each
Tranche A-1 Revolving Lender severally agrees (to the extent of
such Tranche A-1 Revolving Lender’s Tranche A-1 Revolving
Commitment) to make Tranche A-1 Revolving Loans to the Borrowers in
accordance with Section
2.2(b); (iii) the Issuing Bank may issue Letters of Credit
in accordance with Section 2.24;
(iv) the Swingline Lender may make Swingline Loans in accordance
with Section 2.4;
(v) each Lender severally agrees to purchase a participation
interest in the Letters of Credit and the Swingline Loans pursuant
to the terms and conditions hereof; (vi) each Lender severally
agrees (to the extent of such Lender’s Revolving Commitment)
to make Revolving Loans in the form of Agent Advances in accordance
with Section 2.6;
and (vii) each Lender severally agrees to make a Term Loan to the
Borrowers on the Closing Date in a principal amount not exceeding
such Lender’s Term Loan Commitment in accordance with
Section 2.7;
provided that in no
event shall (A) the aggregate principal amount of all outstanding
Revolving Loans, Swingline Loans and outstanding LC Exposure exceed
Availability, (B) the Aggregate Tranche A Revolving Credit Exposure
exceed Tranche A Availability or (C) the Aggregate Tranche A-1
Revolving Credit Exposure exceed Tranche A-1
Availability.
.
(a) Subject to the
terms and conditions set forth herein, each Tranche A Revolving
Lender severally agrees to make Tranche A Revolving Loans, ratably
in proportion to its Pro Rata Share of the Aggregate Tranche A
Revolving Commitments, to the Borrowers, from time to time during
the Tranche A
Availability Period, in an aggregate principal amount outstanding
at any time that will not result in (a) such Lender’s Tranche
A Revolving Credit Exposure exceeding such Lender’s Tranche A
Revolving Commitment or (b) the aggregate Tranche A Revolving
Credit Exposure of all Tranche A Lenders exceeding Tranche A
Availability. During the Tranche A Availability Period and subject
to the satisfaction of the conditions contained in this Agreement
(including Article III hereof), the Borrowers may borrow, prepay
and reborrow Tranche A Revolving Loans in accordance with the terms
and conditions of this Agreement; provided that, the Borrowers
shall not be entitled to borrow or reborrow should there exist a
Default of Event of Default.
(b) Subject to the
terms and conditions set forth herein, each Tranche A-1 Revolving
Lender severally agrees to make Tranche A-1 Revolving Loans,
ratably in proportion to its Pro Rata Share of the Aggregate
Tranche A-1 Revolving Commitments, to the Borrowers, from time to
time during the Tranche
A-1 Availability Period, in an aggregate principal amount
outstanding at any time that will not result in (a) such
Lender’s Tranche A-1 Revolving Credit Exposure exceeding such
Lender’s Tranche A-1 Revolving Commitment or (b) the
aggregate Tranche A-1 Revolving Credit Exposure of all Tranche A-1
Lenders exceeding Tranche A-1 Availability. During the Tranche A-1
Availability Period and subject to the satisfaction of the
conditions contained in this Agreement (including Article III
hereof), the Borrowers may borrow, prepay and reborrow Tranche A-1
Revolving Loans in accordance with the terms and conditions of this
Agreement; provided
that, the Borrowers shall not be entitled to borrow or reborrow
should there exist a Default or Event of Default.
(c) The Tranche A-1
Revolving Loans are intended by the parties hereto to be
“first in, last-out” Revolving Loans. Therefore, except
as otherwise expressly provided in this Agreement, if any Revolving
Loans are outstanding at any time, they shall be deemed to be
funded (and shall bear interest) as, first, Tranche A-1 Revolving
Loans, up to the full amount of the Tranche A-1 Availability (less
the amount of any Tranche A Overadvance) and, second, Tranche A Revolving
Loans, up to the full amount of the Tranche A
Availability.
(d) The Administrative
Agent may in its Permitted Discretion impose Reserves against the
Aggregate Revolving Commitments, the Tranche A Revolving
Commitments or the Tranche A-1 Revolving Commitments for events,
circumstances or conditions that the Administrative Agent
determines in its Permitted Discretion could reasonably result in
the payment of monies or other cash outlays in order to protect or
preserve any Collateral or enforce the Administrative Agent’s
first priority Lien upon any Collateral.
.
(a) Subject to the
terms and conditions of this Agreement, at any time that Truist
Bank is the only Lender under this Agreement and notwithstanding
the other procedures for Revolving Borrowings hereunder, Truist
Bank, as the sole Lender, may make Revolving Loans hereunder into
Borrowers’ designated operating account or other designated
deposit account maintained with Truist Bank upon receipt of the
written or oral request of Borrower Representative or in accordance
with any treasury management services agreement between Borrowers
and Truist Bank, such requested Revolving Loan shall be a LIBOR
Index Rate Loan and (b) at any time that Truist Bank is not the
sole Lender hereunder, the Borrower Representative shall give the
Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) of each request for a Revolving Loan,
substantially in the form of Exhibit 2.3 attached hereto (a
“Notice of Revolving
Borrowing”), prior to 11:00 a.m. one (1) Business Day
prior to the requested date of each Borrowing. Each Notice of
Revolving Borrowing shall be irrevocable and shall specify (i) the aggregate
principal amount of such Borrowing and (ii) the date of such
Borrowing (which shall be a Business Day).
(b) Subject to
Section 2.18 and
Section 2.19 each
Revolving Borrowing shall consist entirely of LIBOR Index Rate
Loans, as the Borrower Representative may request.
(c) Unless otherwise
agreed to by Administrative Agent from time to time, the aggregate
principal amount of each Borrowing shall not be less than $500,000
or a larger multiple of $50,000; provided that Loans made
pursuant to Section
2.3(d), Section
2.3(e), Section
2.4, Section
2.6 or Section
2.24(d) may be made in lesser amounts as provided therein.
Promptly following the receipt of a Notice of Revolving Borrowing
in accordance herewith, the Administrative Agent shall advise each
Lender of the details thereof and the amount of such Lender’s
Revolving Loan to be made as part of the requested Revolving
Borrowing.
(d) Unless payment is
otherwise made by the Borrowers, the becoming due of any Obligation
(whether principal, interest, fees, expenses or other charges,
including for any Secured Bank Product Obligations) shall be deemed
to be a request for a Revolving Borrowing on the due date in the
amount due and the Revolving Loan proceeds shall be disbursed as
direct payment of such Obligation. In addition, the Administrative
Agent may, at its option, charge such amount against any operating,
investment or other account of the Borrowers maintained with the
Administrative Agent or any of its Affiliates.
(e) The presentation
for payment of a payment item in any operating account of any
Borrower maintained at Truist Bank when there are insufficient
funds to cover it shall be deemed to be a request for a Revolving
Borrowing on the presentation date, in the amount of the payment
item. Proceeds of the Revolving Loan may be disbursed directly to
such operating account.
(f) Any request for
Revolving Loans other than Swingline Loans under this Agreement
(including any deemed requests for Revolving Loans) shall be deemed
to be a request, first, for Tranche A-1
Revolving Loans, up to an aggregate amount equal to the Tranche A-1
Availability less the amount of the Tranche A Overadvance and,
second, for Tranche
A Revolving Loans, up to an aggregate amount equal to Tranche A
Availability. To the extent there is at any time any change in the
Aggregate Tranche A-1 Revolving Commitment, the Tranche A-1
Borrowing Base, the Aggregate Tranche A Revolving Commitment or the
Tranche A Borrowing Base, the Administrative Agent shall be
authorized and empowered to convert any Tranche A-1 Revolving Loans
into Tranche A Revolving Loans, or vice versa, accordingly.
.
(a) Subject to the
terms and conditions set forth herein, the Swingline Lender may, in
its sole discretion at any time after Truist Bank is not the sole
Lender hereunder, make Swingline Loans to the Borrowers, from time
to time during the Tranche A Availability Period, in an aggregate
principal amount outstanding at any time not to exceed the lesser
of (i) the Swingline Commitment then in effect and (ii) the
difference between (A) the Tranche A Availability and (B) the
Aggregate Tranche A Revolving Credit Exposures; provided that the Swingline
Lender shall not be required to make a Swingline Loan to refinance
an outstanding Swingline Loan. Subject to Section 2.18 and Section 2.19, all Swingline
Loans shall be funded, and shall bear interest, as Tranche A
Revolving Loans that are LIBOR Index Rate Loans.
(b) The Borrower
Representative shall give the Administrative Agent written notice
(or telephonic notice promptly confirmed in writing) of each
Swingline Borrowing, substantially in the form of Exhibit 2.4 attached
hereto (a “Notice of
Swingline Borrowing”), prior to 10:00 a.m. on the
requested date of each Swingline Borrowing. Each Notice of
Swingline Borrowing shall be irrevocable and shall specify (i) the
principal amount of such Swingline Borrowing, (ii) the date of such
Swingline Borrowing (which shall be a Business Day) and (iii) the
account of the Borrowers to which the proceeds of such Swingline
Borrowing should be credited. The Administrative Agent will
promptly advise the Swingline Lender of each Notice of Swingline
Borrowing. The Swingline Lender will make the proceeds of each
Swingline Loan available to the Borrowers in Dollars in immediately
available funds at the account specified by the Borrower
Representative in the applicable Notice of Swingline Borrowing not
later than 1:00 p.m. on the requested date of such Swingline
Borrowing.
(c) The Swingline
Lender, at any time and from time to time in its sole discretion,
may, but in no event no less frequently than once each calendar
week shall, on behalf of the Borrowers (which hereby irrevocably
authorize and direct the Swingline Lender to act on their behalf),
give a Notice of Revolving Borrowing to the Administrative Agent
requesting the Lenders (including the Swingline Lender) to make a
Revolving Loan in an amount equal to the unpaid principal amount of
any Swingline Loan. Each Lender will make the proceeds of its
Revolving Loan included in such Borrowing available to the
Administrative Agent for the account of the Swingline Lender in
accordance with Section
2.8, which will be used solely for the repayment of such
Swingline Loan and which Revolving Loans will be deemed funded as a
Tranche A Revolving Loan or Tranche A-1 Revolving Loan in
accordance with Section
2.2(c).
(d) If
for any reason a Revolving Borrowing may not be (as determined in
the sole discretion of the Administrative Agent), or is not, made
in accordance with the foregoing provisions, then each Lender
(other than the Swingline Lender) shall purchase an undivided
participating interest in such Swingline Loan in an amount equal to
its Pro Rata Share thereof on the date that such Borrowing should
have occurred. On the date of such required purchase, each Lender
shall promptly transfer, in immediately available funds, the amount
of its participating interest to the Administrative Agent for the
account of the Swingline Lender.
(e) Each Lender’s
obligation to make a Revolving Loan pursuant to Section 2.4(c) or to purchase
participating interests pursuant to Section 2.4(d) shall be
absolute and unconditional and shall not be affected by any
circumstance, including (i) any set-off, counterclaim, recoupment,
defense or other right that such Lender or any other Person may
have or claim against the Swingline Lender, any Borrower or any
other Person for any reason whatsoever, (ii) the existence of a
Default or an Event of Default or the termination of any
Lender’s Revolving Commitment, (iii) the existence (or
alleged existence) of any event or condition which has had or could
reasonably be expected to have a Material Adverse Effect, (iv) any
breach of this Agreement or any other Loan Document by any Loan
Party, the Administrative Agent or any Lender or (v) any other
circumstance, happening or event whatsoever, whether or not similar
to any of the foregoing. If such amount is not in fact made
available to the Swingline Lender by any Lender, the Swingline
Lender shall be entitled to recover such amount on demand from such Lender, together
with accrued interest thereon for each day from the date of demand
thereof (x) at the Federal Funds Rate until the second Business Day
after such demand and (y) at the Base Rate at all times thereafter.
Until such time as such Lender makes its required payment, the
Swingline Lender shall be deemed to continue to have outstanding
Swingline Loans in the amount of the unpaid participation for all
purposes of the Loan Documents. In addition, such Lender shall be
deemed to have assigned any and all payments made of principal and
interest on its Loans and any other amounts due to it hereunder to
the Swingline Lender to fund the amount of such Lender’s
participation interest in such Swingline Loans that such Lender
failed to fund pursuant to this Section 2.4, until such amount
has been purchased in full.
.
(a) If
at any time the amount of the Aggregate Revolving Credit Exposure
exceeds Availability or any other applicable limitation set forth
in this Agreement, the Aggregate Tranche A Revolving Credit
Exposure exceeds Tranche A Availability or any other applicable
limitation set forth in this Agreement, or the Aggregate Tranche
A-1 Revolving Credit Exposure exceeds Tranche A-1 Availability or
any other applicable limitation set forth in this Agreement
(including in each case, as applicable, the limitations on
Swingline Loans, Agent Advances and Letters of Credit), such excess
(an “Overadvance”) shall
nevertheless constitute a portion of the Obligations that are
secured by the Collateral and are entitled to all benefits thereof.
In no event, however, shall the Borrowers have any right whatsoever
to (i) receive any Revolving Loan, (ii) receive any Swingline
Loan, or (iii) request the issuance of any Letter of Credit if,
before or after giving effect thereto, there shall exist a Default
or an Event of Default. In the event that (1) the Lenders shall
make any Revolving Loans, (2) the Swingline Lender shall make any
Swingline Loan, (3) the Administrative Agent shall make any Agent
Advances or (4) the Issuing Bank shall agree to the issuance of any
Letter of Credit, which in any such case gives rise to an
Overadvance, the Borrowers shall make, on demand, a payment on the Obligations
to be applied to the Revolving Loans, the Swingline Loans, the
Agent Advances and to Cash Collateralize LC Exposure in accordance
with this Agreement, as appropriate, in an aggregate principal
amount equal to such Overadvance.
(b) Notwithstanding
the foregoing or any other contrary provision of this Agreement,
the Lenders hereby authorize the Administrative Agent in its sole
discretion, to make (or cause the Revolving Lenders to make)
Revolving Loans to the Borrowers, notwithstanding that an
Overadvance exists or thereby would be created, in an aggregate
amount outstanding at any time not to exceed the greater of 10% of
the Aggregate Revolving Commitments and $6,500,000, so long as (i)
after giving effect to such Revolving Loans, the outstanding
Aggregate Revolving Credit Exposure does not exceed the Aggregate
Revolving Commitment Amount and (ii) at the time of the making of
any such Revolving Loans, the Administrative Agent does not believe
that the Overadvance created by such Revolving Loans will be
outstanding for more than ninety (90) days. The foregoing sentence
is for the exclusive benefit of the Administrative Agent, the
Swingline Lender and the Lenders and is not intended to benefit the
Borrowers in any way. The Required Lenders may at any time revoke
the Administrative Agent’s authority to make Overadvances
pursuant to the preceding sentence of this Section 2.5(b). Any such
revocation must be in writing and shall become effective
prospectively upon the Administrative Agent’s receipt
thereof.
(a) Subject to the
limitations set forth below and notwithstanding anything else in
this Agreement to the contrary, the Administrative Agent is
authorized by the Borrowers and the Lenders, from time to time in
the Administrative Agent’s sole discretion, (A) at any time
that a Default or an Event of Default exists, (B) at any time that
any of the other conditions precedent set forth in Article III have not been
satisfied, or (C) at any time that an Overadvance exists or would
result from any Agent Advance (as defined below), to make LIBOR
Index Rate Loans (or, to the extent required pursuant to
Section 2.18 or
Section 2.18, Base
Rate Loans) to the Borrowers on behalf of the Lenders in an
aggregate amount outstanding at any time not to exceed the greater
of 10% of the Aggregate Revolving Commitments and $6,500,000, which
the Administrative Agent deems necessary or desirable (1) to
preserve or protect the Collateral, or any portion thereof, (2) to
enhance the likelihood of, or maximize the amount of, repayment of
the Loans and other Obligations, or (3) to pay any other amount
chargeable to the Borrowers pursuant to the terms of this
Agreement, including costs, fees and expenses as provided under
this Agreement (any of such advances are herein referred to as
“Agent
Advances”); provided that the Required
Lenders may at any time revoke the Administrative Agent’s
authorization to make Agent Advances. Any such revocation must be
in writing and shall become effective prospectively upon the
Administrative Agent’s receipt thereof. The Administrative
Agent shall promptly provide to the Borrower Representative written
notice of any Agent Advance. In no event shall the Aggregate
Revolving Credit Exposure, after giving effect to any Agent
Advance, exceed the Aggregate Revolving Commitment
Amount.
(b) The Agent Advances
shall be payable on demand,
shall be secured by the Collateral and shall constitute Obligations
hereunder and shall be deemed funded as Tranche A Revolving Loans
or Tranche A-1 Revolving Loans in accordance with Section 2.2(c) hereof. Each
Agent Advance shall bear interest as a LIBOR Index Rate Loan (or,
to the extent required pursuant to Section 2.18 or Section 2.19, Base Rate Loans).
Each Agent Advance shall be subject to all terms and conditions of
this Agreement and the other Loan Documents applicable to Revolving
Loans, except that all payments thereon shall be made to the
Administrative Agent solely for its own account and the making of
any Agent Advance shall not require the consent of the Borrowers.
The Administrative Agent shall have no duty or obligation to make
any Agent Advance hereunder.
(c) The Administrative
Agent shall notify each Lender no less frequently than weekly, as
determined by the Administrative Agent, of the principal amount of
Agent Advances outstanding as of 10:00 a.m. as of such date, and
each Lender's Pro Rata Share thereof. Each Lender shall before 1:00
p.m. on such Business Day make available to the Administrative
Agent, in immediately available funds, the amount of its Pro Rata
Share of such principal amount of Agent Advances outstanding. Upon
such payment by a Lender, such Lender shall be deemed to have made
a Revolving Loan to the Borrowers, notwithstanding any failure of
the Borrowers to satisfy the conditions in Article III. The Administrative
Agent shall use such funds to repay the principal amount of Agent
Advances. Additionally, if at any time any Agent Advances are
outstanding, any of the events described in Section 8.1(g) or 8.1(h) shall have occurred,
then each Lender shall automatically, upon the occurrence of such
event, and without any action on the part of the Administrative
Agent, the Borrowers or the Lenders, be deemed to have purchased an
undivided participation in the principal and interest of all Agent
Advances then outstanding in an amount equal to such Lender's Pro
Rata Share of the Aggregate Revolving Commitments and each Lender
shall, notwithstanding such Event of Default, immediately pay to
the Administrative Agent in immediately available funds, the amount
of such Lender's participation (and upon receipt thereof, the
Administrative Agent shall deliver to such Lender, a loan
participation certificate dated the date of receipt of such funds
in such amount). The disbursement of funds in connection with the
settlement of Agent Advances hereunder shall be subject to the
terms and conditions of Section 2.8.
.
Subject to the terms and conditions set forth herein, each Lender
severally agrees to make a single term loan to the Borrowers on the
date of satisfaction of the Real Estate Conditions in a principal
amount equal to the Term Loan Commitment of such Lender. The Term
Loans will be LIBOR Index Rate Loans. The execution and delivery of
this Agreement by the Borrowers and the satisfaction of all
conditions precedent pursuant to Section 3.1 and Section 3.2 shall be deemed to
constitute the Borrowers’ request to borrow the Term Loans on
the Closing Date.
(a) Each Lender will
make available each Loan to be made by it hereunder on the proposed
date thereof by wire transfer in immediately available funds by
11:00 a.m. on such proposed date to the Administrative Agent at the
Payment Office; provided that the Swingline
Loans will be made as set forth in Section 2.4. The Administrative
Agent will make such Loans available to the Borrowers by promptly
crediting the amounts that it receives, in like funds by the close
of business on such proposed date to an account maintained by the
Borrowers with the Administrative Agent or, at the Borrowers’
option, by effecting a wire transfer of such amounts to an account
designated by the Borrower Representative to the Administrative
Agent.
(b) Unless the
Administrative Agent shall have been notified by any Lender prior
to 5:00 p.m. one (1) Business Day prior to the date of a Borrowing
in which such Lender is to participate that such Lender will not
make available to the Administrative Agent such Lender’s
share of such Borrowing, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative
Agent on such date, and the Administrative Agent, in reliance on
such assumption, may make available to the Borrowers on such date a
corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Lender on the
date of such Borrowing, the Administrative Agent shall be entitled
to recover such corresponding amount on demand from such Lender
together with interest (x) at the Federal Funds Rate until the
second Business Day after such demand and (y) at the Base Rate at
all times thereafter. If such Lender does not pay such
corresponding amount forthwith upon the Administrative
Agent’s demand therefor, the Administrative Agent shall
promptly notify the Borrower Representative, and the Borrowers
shall immediately pay such corresponding amount to the
Administrative Agent together with interest at the rate specified
for such Borrowing. Nothing in this subsection shall be deemed to
relieve any Lender from its obligation to fund its Pro Rata Share
of any Borrowing hereunder or to prejudice any rights which the
Borrowers may have against any Lender as a result of any default by
such Lender hereunder.
(c) All Revolving
Borrowings shall be made by the Lenders on the basis of their
respective Pro Rata Shares. No Lender shall be responsible for any
default by any other Lender in its obligations hereunder, and each
Lender shall be obligated to make its Loans provided to be made by
it hereunder, regardless of the failure of any other Lender to make
its Loans hereunder.
(d) Notwithstanding the
provisions of this Section
2.8, the Borrowers shall not request, and the Tranche A
Revolving Lenders shall be under no obligation to fund, any Tranche
A Revolving Loan unless the Borrowers have borrowed the full amount
of Tranche A-1 Availability. If any Tranche A-1 Revolving Loan is
prepaid in whole or part pursuant to Section 2.13 or Section 2.14, any Revolving
Loans to the Borrowers thereafter requested shall be Tranche A-1
Revolving Loans until the maximum principal amount of Tranche A-1
Revolving Credit Exposure equals the Tranche A-1 Availability less
the amount of any Tranche A Overadvance at such time.
(e) After giving effect
to any Revolving Borrowings, (i) the Aggregate Revolving Credit
Exposure shall not exceed Availability, (ii) the Aggregate Tranche
A Revolving Credit Exposure shall not exceed the Tranche A-1
Availability and (iii) the Aggregate Tranche A-1 Revolving Credit
Exposure shall not exceed the Tranche A-1
Availability.
(a) Unless previously
terminated, (i) all Tranche A Revolving Commitments, Swingline
Commitments and LC Commitments shall terminate on the Tranche A
Revolving Commitment Termination Date and (ii) all Tranche A-1
Revolving Commitments shall terminate on the Tranche A-1 Revolving
Commitment Termination Date. The Term Loan Commitments shall
terminate on the Closing Date upon the making of the Term Loans
pursuant to Section
2.7.
(b) Upon at least three
(3) Business Days’ prior written notice (or telephonic notice
promptly confirmed in writing) to the Administrative Agent (which
notice shall be irrevocable), the Borrowers may reduce the Tranche
A Revolving Commitments in part or terminate the Tranche A
Revolving Commitments in whole; provided that (i) any partial
reduction shall apply to reduce proportionately and permanently the
Tranche A Revolving Commitment of each Lender, (ii) any partial
reduction pursuant to this Section 2.10(b) shall be in an
amount of at least $5,000,000 and any larger multiple of
$1,000,000, and (iii) no such reduction shall be permitted which
would reduce the Tranche A Revolving Commitment Amount to an amount
less than the Tranche A Revolving Credit Exposure. Any such
reduction in the Tranche A Revolving Commitment Amount below the
principal amount of either of the Swingline Commitment and the LC
Commitment shall result in a dollar-for-dollar reduction in the
Swingline Commitment and the LC Commitment,
respectively.
(c) Upon at least three
(3) Business Days’ prior written notice (or telephonic notice
promptly confirmed in writing) to the Administrative Agent (which
notice shall be irrevocable), the Borrowers may reduce the Tranche
A-1 Revolving Commitments in part or terminate the Tranche A-1
Revolving Commitments in whole; provided that the Tranche A-1
Revolving Commitments may not be reduced or terminated unless and
until (i) the Tranche A Revolving Commitments are terminated in
accordance with this Agreement, all Tranche A Revolving Loans are
Paid in Full and all outstanding Letters of Credit are Cash
Collateralized or (ii)(x) after giving pro forma effect to such
termination and the Payment in Full of the Tranche A-1 Revolving
Loans in connection therewith, Excess Availability shall be greater
than 20% of Tranche A Availability and (y) no Default or Event of
Default then exists or would be caused by such payment;
provided
further that (i)
any partial reduction shall apply to reduce proportionately and
permanently the Tranche A-1 Revolving Commitment of each Lender,
(ii) any partial reduction pursuant to this Section 2.10(c) shall be in an
amount of at least $1,000,000 and any larger multiple of
$1,000,000, and (iii) no such reduction shall be permitted which
would reduce the Tranche A-1 Revolving Commitment Amount to an
amount less than the Tranche A-1 Revolving Credit
Exposure.
(d) With the prior
written approval of the Administrative Agent, the Borrowers may
terminate (on a non-ratable basis vis-à-vis the other Lenders)
the unused amount of the Revolving Commitment of a Defaulting
Lender, and in such event the provisions of Section 2.28 will apply to all
amounts thereafter paid by the Borrowers for the account of any
such Defaulting Lender under this Agreement (whether on account of
principal, interest, fees, indemnity or other amounts);
provided that such
termination will not be deemed to be a waiver or release of any
claim that any Borrower, the Administrative Agent, the Issuing
Bank, the Swingline Lender or any other Lender may have against
such Defaulting Lender.
(e) In the event that
the Tranche A Revolving Commitments are terminated, the Tranche A-1
Revolving Commitments shall be automatically
terminated.
(a) The
outstanding principal amount of all Tranche A Revolving Loans,
Swingline Loans, Agent Advances and other Obligations (including
accrued and unpaid interest thereon) other than Tranche A-1
Revolving Loans and Term Loans shall be due and payable on the
Tranche A Revolving Commitment Termination Date.
(b) The
outstanding principal amount of all Tranche A-1 Revolving Loans
(including accrued and unpaid interest thereon) shall be due and
payable on the Tranche A-1 Revolving Commitment Termination
Date.
(c) The Borrowers
jointly and severally unconditionally promise to pay to the
Administrative Agent for the account of each Lender the then unpaid
principal amount of the Term Loan of such Lender in equal monthly
installments of $17,519.44 commencing on August 1, 2021 and
continuing on the first day of each month thereafter (and on such
other dates and in such other amounts as may be required from time
to time pursuant to this Agreement):
provided that, to the extent not previously paid, the
aggregate unpaid principal balance of the Term Loans shall be due
and payable on the earlier of (i) the Term Loan Maturity Date or
(ii) the Tranche A Revolving Commitment Termination
Date.
(a) Each Lender shall
maintain in accordance with its usual practice appropriate records
evidencing the Indebtedness of the Borrowers to such Lender
resulting from each Loan made by such Lender from time to time,
including the amounts of principal and interest payable thereon and
paid to such Lender from time to time under this Agreement. The
Administrative Agent shall maintain appropriate records in which
shall be recorded (i) the Tranche A Revolving Commitment, the
Tranche A-1 Revolving Commitment and the Term Loan Commitment of
each Lender, (ii) the amount of each Loan made hereunder by each
Lender, the Class and Type thereof, (iii) the date and amount of
any principal or interest due and payable or to become due and
payable from the Borrowers to each Lender hereunder in respect of
the Loans and (iv) both the date and amount of any sum received by
the Administrative Agent hereunder from the Borrowers in respect of
the Loans and each Lender’s Pro Rata Share thereof. The
entries made in such records shall be prima facie evidence of the existence
and amounts of the obligations of the Borrowers therein recorded;
provided that the
failure or delay of any Lender or the Administrative Agent in
maintaining or making entries into any such record or any error
therein shall not in any manner affect the obligation of the
Borrowers to repay the Loans (both principal and unpaid accrued
interest) of such Lender in accordance with the terms of this
Agreement.
(b) This Agreement
evidences the obligation of the Borrowers to repay the Loans and is
being executed as a “noteless” credit agreement.
However, at the request of any Lender (including the Swingline
Lender) at any time, the Borrowers agree that they will prepare,
execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) substantially in the form of
Exhibit C-1,
Exhibit C-2 and
Exhibit D or in
such form as otherwise approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment
permitted hereunder) be represented by one or more promissory notes
in such form payable to the order of the payee named therein (or,
if such promissory note is a registered note, to such payee and its
registered assigns).
.
The Borrowers shall
have the right at any time and from time to time to prepay any
Borrowing, in whole or in part, without premium or penalty, by
giving written notice (or telephonic notice promptly confirmed in
writing) to the Administrative Agent not less than one (1) Business
Day prior to the date of such prepayment or, in the case of
any prepayment of any Swingline Borrowing, prior to 11:00 a.m. on
the date of such prepayment; provided, that, the Tranche A-1
Revolving Loans may not be prepaid unless (a) the outstanding
amount of all Tranche A Revolving Loans is zero and all outstanding
Letters of Credit are Cash Collateralized, in each case, before and
after giving effect to such prepayment or (b) such prepayment is
made in connection with the termination of all Tranche A-1
Revolving Commitments and all conditions thereto are satisfied.
Each such notice shall be irrevocable and shall specify the
proposed date of such prepayment and the principal amount of each
Borrowing or portion thereof to be prepaid. Upon receipt of any
such notice, the Administrative Agent shall promptly notify each
affected Lender of the contents thereof and of such Lender’s
Pro Rata Share of any such prepayment. If such notice is given, the
aggregate amount specified in such notice shall be due and payable
on the date designated in such notice, together with accrued
interest to such date on the amount so prepaid in accordance with
Section 2.15(c).
Each partial prepayment of any Loan shall be in an amount that
would be permitted in the case of an advance of a Revolving
Borrowing of the same Type pursuant to Section 2.2 or, in the case of
a Swingline Loan, pursuant to Section 2.4. Each prepayment of
a Borrowing shall be applied ratably to the Loans comprising such
Borrowing and, in the case of a prepayment of the Term Loan, to
principal installments in inverse order of maturity.
(a) Immediately upon
receipt by any Loan Party of any proceeds of any sale or
disposition by any Loan Party of any of its assets (other than, at
any time that all or any portion of the Term Loan is outstanding,
the Real Estate of the Borrowers), or any proceeds from any
casualty insurance policies or eminent domain, condemnation or
similar proceedings with respect thereto, or any earnings, balance
sheet or similar adjustment payment under the March 2021
Acquisition Agreements, the Borrowers shall prepay the Revolving
Loans in an amount equal to all such proceeds, net of commissions
and other reasonable and customary transaction costs, fees and
expenses properly attributable to such transaction and payable by
the Borrowers in connection therewith (in each case, paid to
non-Affiliates).
(b) No later than the
Business Day following the date of receipt by any Loan Party of any
proceeds from any issuance of Indebtedness not permitted by
Section 7.1 or
equity securities by any Loan Party, the Borrowers shall prepay the
Obligations in an amount equal to all such proceeds, net of
underwriting discounts and commissions and other reasonable and
customary transaction costs, fees and expenses properly
attributable to such transaction and payable by the Borrowers in
connection therewith; provided that the Borrowers
shall not be required to prepay the Obligations with respect to
proceeds of Capital Stock issued by any Borrower to members of
management, directors, officers and employees pursuant to warrants
or employee stock or option plans of such Borrower and its
Subsidiaries or other warrants to stockholders. Any such prepayment
shall be applied in accordance with subsection (c) of this
Section.
(c) Any such prepayment
under clause (a) or (b) of this Section 2.14 shall be applied
as follows: first,
to the Administrative Agent’s fees and reimbursable expenses
then due and payable pursuant to any of the Loan Documents;
second, to all
reimbursable expenses of the Lenders and all fees and reimbursable
expenses of the Issuing Bank then due and payable pursuant to any
of the Loan Documents, pro
rata to the Lenders and the Issuing Bank based on their
respective pro rata shares
of such fees and expenses; third, to interest and fees
then due and payable hereunder, pro rata to the Lenders based on their
respective pro rata shares
of such interest and fees; fourth, to the Agent Advances
to the full extent thereof; fifth, to the principal balance of the
Swingline Loans, until the same shall have been paid in full, to
the Swingline Lender; sixth, to the principal balance
of the Tranche A Revolving Loans, until the same shall have been
paid in full, pro rata to
the Tranche A Lenders based on their respective Tranche A Revolving
Commitments; seventh, to the principal
balance of the Tranche A-1 Revolving Loans, until the same shall
have been paid in full, pro
rata to the Tranche A-1 Lenders based on their respective
Tranche A-1 Revolving Commitments; and eighth, to Cash Collateralize
the Letters of Credit in an amount in cash equal to the LC Exposure
as of such date plus any accrued and unpaid fees thereon,
provided,
that, at any time
that an Event of Default has occurred, at Administrative
Agent’s option or at the request of Required Lenders, such
amounts shall be distributed in accordance with Section 8.2 regardless of
whether such amounts constitute
“Collateral.” The Revolving Commitments of the
Lenders shall not be permanently reduced by the amount of any
prepayments made pursuant to clauses fourth
through eighth
above, unless an Event of Default has occurred and is continuing
and the Required Revolving Lenders so request.
(d) If at any time the
Aggregate Revolving Credit Exposure exceeds Availability, the
Aggregate Tranche A Revolving Credit Exposure exceeds the Tranche A
Availability or the Aggregate Tranche A-1 Revolving Credit Exposure
exceeds the Tranche A-1 Availability, in each case, after giving
effect to any reduction in the Aggregate Revolving Commitments
pursuant to Section
2.10 or otherwise, the Borrowers shall immediately repay the
Swingline Loans, Revolving Loans and Agent Advances in an amount
equal to such excess, together with all accrued and unpaid interest
on such excess amount. Each such prepayment shall be applied as
follows: first, to
the Agent Advances to the full extent thereof; second, to the Swingline Loans
to the full extent thereof; third, to the Tranche A
Revolving Loans to the full extent thereof; fourth, to the Tranche A-1
Revolving Loans to the full extent thereof; and fifth to Cash Collateralize the
Letters of Credit in an amount in cash equal to the LC Exposure as
of such date plus any accrued and unpaid fees thereon, provided, that, at any time that an Event
of Default has occurred, at Administrative Agent’s option or
at the request of Required Lenders, such amounts shall be
distributed in accordance with Section 8.2.
(e) During any such
time that all or any portion of the Term Loan is outstanding,
immediately upon receipt by any Borrower of any proceeds of any
sale or disposition by any Borrower of any of the Real Estate of
the Borrowers, the Borrowers shall prepay the Term Loan in an
amount equal to all such proceeds, net of commissions and other
reasonable and customary transaction costs, fees and expenses
properly attributable to such transaction and payable by the
Borrowers in connection therewith (in each case, paid to
non-Affiliates). Any such
prepayment shall be applied in accordance with Section 2.14(g).
(f) During any such
time that all or any portion of the Term Loan is outstanding, the
Borrowers shall prepay the Term Loan in an amount equal to the
amount by which the principal balance of the Term Loan exceeds 85%
of the fair market value of the Real Estate of the Borrowers, as
determined pursuant to the most recent Qualified Appraisal. Any
such prepayment shall be applied in accordance with Section 2.14(g).
(g) Any prepayments
made by the Borrowers pursuant to Section 2.14(e) or Section 2.14(f) shall be
applied as follows: first, to the principal balance
of the Term Loan, until the same shall have been paid in full,
pro rata to the Lenders
based on their Pro Rata Shares of the Term Loan, and applied to
installments of the Term Loan in inverse order of maturity,
then in the manner
provided in Section
2.14(c).
(a) The Borrowers
shall, jointly and severally, pay interest on (i) each Base Rate
Loan at the Base Rate plus the Applicable Margin in
effect from time to time and (ii) each LIBOR Index Rate Loan at the
LIBOR Index Rate plus the Applicable Margin in
effect from time to time.
(b) Notwithstanding
Section 2.15(a), at
the option of the Administrative Agent (in its discretion or at the
direction of Required Lenders) if an Event of Default has occurred
and is continuing, and automatically after acceleration or with
respect to any past due amount hereunder, the Borrowers shall,
jointly and severally, pay interest (“Default Interest”) with
respect to all Loans and other Obligations at the rate per annum equal to 200 basis points
above the otherwise applicable interest rate for such Loans and,
with respect to all other Obligations (other than Loans), at the
rate 200 basis points above the rate applicable to Tranche A
Revolving Loans; provided that, in the
Administrative Agent’s sole discretion, such interest shall
accrue at the Base Rate plus a rate per annum equal to 200 basis
points above the otherwise applicable Applicable Margin for such
Loans.
(c) Interest
on the principal amount of all Loans shall accrue from and
including the date such Loans are made to but excluding the date of
any repayment thereof. Interest on all outstanding Loans shall be
payable monthly in arrears on the first Business Day of each
calendar month, on the
Tranche A Revolving Commitment Termination Date, Tranche A-1
Revolving Commitment Termination Date or the Term Loan Maturity
Date, as the case may be. Interest on any Loan which is repaid or
prepaid shall be payable on the date of such repayment or
prepayment (on the amount repaid or prepaid) thereof. All Default
Interest shall be payable on
demand.
(d) The Administrative
Agent shall determine each interest rate applicable to the Loans
hereunder and shall promptly notify the Borrower Representative and
the Lenders of such rate in writing (or by telephone, promptly
confirmed in writing). Any such determination shall be conclusive
and binding for all purposes, absent manifest error.
(e) The LIBOR Index
Rate on the date hereof is 0.9613% per annum and, therefore, the
rate of interest in effect on the date hereof, expressed in simple
interest terms, is 2.7113% per annum for Tranche A Revolving Loans
and 2.9613% per annum for Term Loans.
(a) The
Borrowers shall, jointly and severally, pay to the Administrative
Agent for its own account fees in the amounts and at the times
previously agreed upon in writing by the Borrower Representative
and the Administrative Agent.
(b) The Borrowers,
jointly and severally, agree to pay to the Administrative Agent for
the account of each Lender (i) with respect to the Tranche A
Revolving Commitment, a commitment fee, which shall accrue at a
rate of 0.25% per annum on the average daily amount of the unused
Tranche A Revolving Commitment of such Lender during the Tranche A
Availability Period, and (ii) with respect to the Tranche A-1
Revolving Commitment, a commitment fee, which shall accrue at a
rate of 0.25% per annum on the average daily amount of the unused
Tranche A-1 Revolving Commitment] of such Lender during the Tranche A-1
Availability Period. For purposes of computing the
commitment fee, the Tranche A Revolving Commitment of each Tranche
A Revolving Lender shall be deemed used to the extent of the
outstanding Tranche A Revolving Loans and LC Exposure, but not
Swingline Exposure and Agent Advance Exposure, of such Tranche A
Revolving Lender.
(c) The Borrowers,
jointly and severally, agree to pay (i) to the Administrative
Agent, for the account of each Lender, a letter of credit fee with
respect to its participation in each Letter of Credit, which shall
accrue at a rate per annum
equal to the Applicable Margin for Tranche A Revolving Loans that
are LIBOR Index Rate Revolving Loans then in effect on the average
daily amount of such Lender’s LC Exposure attributable to
such Letter of Credit during the period from and including the date
of issuance of such Letter of Credit to but excluding the date on
which such Letter of Credit expires or is drawn in full (including
any LC Exposure that remains outstanding after the Tranche A
Revolving Commitment Termination Date) and (ii) to the Issuing Bank
for its own account a fronting fee, which shall accrue at the rate
of 0.125% per annum, which
shall accrue at the rate set forth in the Fee Letter on the average
daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the Tranche A
Availability Period (or until the date that such Letter of Credit
is irrevocably cancelled, whichever is later), as well as the
Issuing Bank’s standard fees with respect to issuance,
amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Notwithstanding the foregoing,
at any time Default Interest is applicable under Section 2.15(b), the rate
per annum used to calculate
the letter of credit fee pursuant to clause (i) above shall
automatically be increased by 200 basis points.
(d) The Borrowers
shall, jointly and severally, pay on the Closing Date to the
Administrative Agent and its affiliates all fees in the Fee Letter
that are due and payable on the Closing Date. In addition, the
Borrowers shall jointly and severally pay on the Closing Date to
the Lenders all upfront fees previously agreed in writing,
including any upfront fees due and payable under the Fee
Letter.
(e) Accrued fees under
Sections 2.16(b)
and 2.16(c) shall
be payable monthly in arrears on the first Business Day of each
calendar month, and on the Tranche A Revolving Commitment
Termination Date and Tranche A-1 Revolving Commitment Termination
Date, as applicable, (and, if later, the date the Loans and LC
Exposure shall be repaid in their entirety); provided that any such fees
accruing after the Tranche A Revolving Commitment Termination Date
or Tranche A-1 Revolving Commitment Termination Date shall be
payable on
demand.
.
Interest hereunder based on the Administrative Agent’s prime
lending rate shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days
elapsed (including the first day but excluding the last day). All
other interest and all fees hereunder shall be computed on the
basis of a year of 360 days and paid for the actual number of days
elapsed (including the first day but excluding the last day). Each
determination by the Administrative Agent of an interest rate or
fee hereunder shall be made in good faith and, except for manifest
error, shall be final, conclusive and binding for all
purposes.
.
(a) If:
(i) the
Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Borrowers) that, by reason
of circumstances affecting the relevant interbank market, adequate
and reasonable means do not exist for ascertaining the LIBOR Index
Rate (including, without limitation, because the Screen Rate is not
available or published on a current basis), or
(ii) the
Administrative Agent shall have received notice from the Required
Lenders that the LIBOR Index Rate will not adequately and fairly
reflect the cost to such Lenders of making, funding or maintaining
their LIBOR Index Rate Loans,
then
the Administrative Agent shall give written notice thereof (or
telephonic notice, promptly confirmed in writing) to the Borrower
Representative and to the Lenders as soon as practicable
thereafter. Until the Administrative Agent shall notify the
Borrower Representative and the Lenders that the circumstances
giving rise to such notice no longer exist, (i) the obligations of
the Lenders to make LIBOR Index Rate Loans shall be suspended and
(ii) all LIBOR Index Rate Loans shall be immediately converted into
Base Rate Loans unless the Borrowers prepay such Loans in
accordance with this Agreement.
(b) Notwithstanding
anything to the contrary herein or in any other Loan Document, if a
Benchmark Transition Event or an Early Opt-in Election, as
applicable, and its related Benchmark Replacement Date have
occurred prior to the Reference Time in respect of any setting of
the then-current Benchmark, then (x) if a Benchmark Replacement is
determined in accordance with clause (1) or (2) of the definition
of “Benchmark Replacement” for such Benchmark
Replacement Date, such Benchmark Replacement will replace such
Benchmark for all purposes hereunder and under any Loan Document in
respect of such Benchmark setting and subsequent Benchmark settings
without any amendment to, or further action or consent of any other
party to, this Agreement or any other Loan Document and (y) if a
Benchmark Replacement is determined in accordance with clause (3)
of the definition of “Benchmark Replacement” for such
Benchmark Replacement Date, such Benchmark Replacement will replace
such Benchmark for all purposes hereunder and under any Loan
Document in respect of any Benchmark setting at or after 5:00 p.m.
(New York City time) on the fifth (5th) Business Day after the date
notice of such Benchmark Replacement is provided to the Lenders
without any amendment to, or further action or consent of any other
party to, this Agreement or any other Loan Document so long as the
Administrative Agent has not received, by such time, written notice
of objection to such Benchmark Replacement from Lenders comprising
the Required Lenders.
(c) Notwithstanding
anything to the contrary herein or in any other Loan Document and
subject to the proviso below in this paragraph, if a Term SOFR
Transition Event and its related Benchmark Replacement Date have
occurred prior to the Reference Time in respect of any setting of
the then-current Benchmark, then the applicable Benchmark
Replacement will replace the then-current Benchmark for all
purposes hereunder or under any Loan Document in respect of such
Benchmark setting and subsequent Benchmark settings, without any
amendment to, or further action or consent of any other party to,
this Agreement or any other Loan Document; provided that this
clause (c) shall not be effective unless the Administrative Agent
has delivered to the Lenders and the Borrower Representative a Term
SOFR Notice.
(d) In
connection with the implementation of a Benchmark Replacement, the
Administrative Agent will have the right to make Benchmark
Replacement Conforming Changes from time to time and,
notwithstanding anything to the contrary herein or in any other
Loan Document, any amendments implementing such Benchmark
Replacement Conforming Changes will become effective without any
further action or consent of any other party to this Agreement or
any other Loan Document.
(e) The
Administrative Agent will promptly notify the Borrower
Representative and the Lenders of (i) any occurrence of a Benchmark
Transition Event, a Term SOFR Transition Event or an Early Opt-in
Election, as applicable, and its related Benchmark Replacement
Date, (ii) the implementation of any Benchmark Replacement, (iii)
the effectiveness of any Benchmark Replacement Conforming Changes,
(iv) the removal or reinstatement of a Benchmark and (v) the
commencement or conclusion of any Benchmark Unavailability Period.
Any determination, decision or election that may be made by the
Administrative Agent or, if applicable, any Lender (or group of
Lenders) pursuant to this Section 2.18, including any
determination with respect to a tenor, rate or adjustment or of the
occurrence or non-occurrence of an event, circumstance or date and
any decision to take or refrain from taking any action or any
selection, will be conclusive and binding absent manifest error and
may be made in its or their sole discretion and without consent
from any other party to this Agreement or any other Loan Document,
except, in each case, as expressly required pursuant to this
Section
2.18.
(f) Upon
the Borrower Representative’s receipt of notice of the
commencement of a Benchmark Unavailability Period, the Borrowers
may revoke any request for a LIBOR Index Rate Borrowing to be made
during any Benchmark Unavailability Period and, failing that, the
Borrowers will be deemed to have converted any such request into a
request for a Borrowing of Base Rate Loans. During any Benchmark
Unavailability Period, the component of Base Rate based upon the
then-current Benchmark will not be used in any determination of
Base Rate.
If any Change in Law shall
make it unlawful or impossible for any Lender to perform any of its
obligations hereunder or to make, maintain or fund any LIBOR Index
Rate Loan and such Lender shall so notify the Administrative Agent,
the Administrative Agent shall promptly give notice thereof to the
Borrower Representative and the other Lenders, whereupon until such
Lender notifies the Administrative Agent and the Borrower
Representative that the circumstances giving rise to such
suspension no longer exist, the obligation of such Lender to make
LIBOR Index Rate Loans, or to continue outstanding Loans as LIBOR
Index Rate Loans, shall be suspended. In the case of the making of
a LIBOR Index Rate Borrowing, such Lender’s Revolving Loan
shall be made as a Base Rate Loan as part of the same Revolving
Borrowing and, if the affected LIBOR Index Rate Loan is then
outstanding, such Loan shall be converted to a Base Rate Loan
either (i) on the last day of the month in which such notice is
provided if such Lender may lawfully continue to maintain such
LIBOR Index Rate Loan to such date or (ii) immediately if such
Lender shall determine that it may not lawfully continue to
maintain such LIBOR Index Rate Loan to such date. Notwithstanding
the foregoing, the affected Lender shall, prior to giving such
notice to the Administrative Agent, use reasonable efforts to
designate a different Applicable Lending Office if such designation
would avoid the need for giving such notice and if such designation
would not otherwise be disadvantageous to such Lender in the good
faith exercise of its discretion.
(a) If any Change in
Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit or similar
requirement that is not otherwise included in the determination of
the LIBOR Index Rate hereunder against assets of, deposits with or
for the account of, or credit extended by, any Lender (except any
such reserve requirement reflected in the LIBOR Index Rate) or the
Issuing Bank;
(ii) subject
any Recipient to any Taxes (other than (A) Indemnified Taxes and
(B) Taxes described in clauses (b) through (d) of the definition of
Excluded Taxes; or
(iii) impose
on any Lender, the Issuing Bank or the eurodollar interbank market
any other condition affecting this Agreement or any LIBOR Index
Rate Loans made by such Lender or any Letter of Credit or any
participation therein;
and the
result of any of the foregoing is to increase the cost to such
Lender of making, continuing or maintaining a LIBOR Index Rate Loan
or to increase the cost to such Lender or the Issuing Bank of
participating in or issuing any Letter of Credit or to reduce the
amount received or receivable by such Lender or the Issuing Bank
hereunder (whether of principal, interest or any other amount),
then, from time to time, such Lender or the Issuing Bank may
provide the Borrower Representative (with a copy thereof to the
Administrative Agent) with written notice and demand with respect
to such increased costs or reduced amounts, and within five (5)
Business Days after receipt of such notice and demand the Borrowers
shall, jointly and severally, pay to such Lender or the Issuing
Bank, as the case may be, such additional amounts as will
compensate such Lender or the Issuing Bank for any such increased
costs incurred or reduction suffered.
(b) If any Lender or
the Issuing Bank shall have determined that on or after the date of
this Agreement any Change in Law regarding capital or liquidity
ratios or requirements has or would have the effect of reducing the
rate of return on such Lender’s or the Issuing Bank’s
capital (or on the capital of the Parent Company of such Lender or
the Issuing Bank) as a consequence of its obligations hereunder or
under or in respect of any Letter of Credit to a level below that
which such Lender, the Issuing Bank or such Parent Company could
have achieved but for such Change in Law (taking into consideration
such Lender’s or the Issuing Bank’s policies or the
policies of such Parent Company with respect to capital adequacy
and liquidity), then, from time to time, such Lender or the Issuing
Bank may provide the Borrower Representative (with a copy thereof
to the Administrative Agent) with written notice and demand with
respect to such reduced amounts, and within five (5) Business Days
after receipt of such notice and demand the Borrowers shall,
jointly and severally, pay to such Lender or the Issuing Bank, as
the case may be, such additional amounts as will compensate such
Lender, the Issuing Bank or such Parent Company for any such
reduction suffered.
(c) A certificate of
such Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender, the Issuing Bank or the Parent
Company of such Lender or the Issuing Bank, as the case may be,
specified in Section
2.20(a) or 2.20(b) shall be delivered to
the Borrower Representative (with a copy to the Administrative
Agent) and shall be conclusive, absent manifest error.
(d) Failure
or delay on the part of any Lender or the Issuing Bank to demand
compensation pursuant to this Section 2.20 shall not
constitute a waiver of such Lender’s or the Issuing
Bank’s right to demand such compensation.
(a) Defined Terms. For purposes of
this Section 2.22,
the term “Lender” includes the Issuing Bank, and the
term “applicable law” includes FATCA.
(b) Payments Free of Taxes. Any and
all payments by or on account of any obligation of any Loan Party
under any Loan Document shall be made without deduction or
withholding for any Taxes, except as required by applicable law. If
any applicable law (as determined in the good faith discretion of
an applicable Withholding Agent) requires the deduction or
withholding of any Tax from any such payment by a Withholding
Agent, then the applicable Withholding Agent shall be entitled to
make such deduction or withholding and shall timely pay the full
amount deducted or withheld to the relevant Governmental Authority
in accordance with applicable law and, if such Tax is an
Indemnified Tax, then the sum payable by the applicable Loan Party
shall be increased as necessary so that after such deduction or
withholding has been made (including such deductions and
withholdings applicable to additional sums payable under this
Section) the applicable Recipient receives an amount equal to the
sum it would have received had no such deduction or withholding
been made.
(c) Payment of Other Taxes by the
Borrowers. The Borrowers shall, jointly and severally,
timely pay to the relevant Governmental Authority in accordance
with applicable law, or at the option of the Administrative Agent
timely reimburse it for the payment of, any Other
Taxes.
(d) Indemnification by the
Borrowers. The Borrowers shall, jointly and severally,
indemnify each Recipient, within ten (10) days after demand
therefor, for the full amount of any Indemnified Taxes (including
Indemnified Taxes imposed or asserted on or attributable to amounts
payable under this Section) payable or paid by such Recipient or
required to be withheld or deducted from a payment to such
Recipient and any reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes were
correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower Representative by a
Lender (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender,
shall be conclusive absent manifest error.
(e) Indemnification by the Lenders.
Each Lender shall severally indemnify the Administrative Agent,
within ten (10) days after demand therefor, for (i) any Indemnified
Taxes attributable to such Lender (but only to the extent that the
Borrowers have not already indemnified the Administrative Agent for
such Indemnified Taxes and without limiting the obligation of the
Borrowers to do so), (ii) any Taxes attributable to such
Lender’s failure to comply with the provisions of
Section 10.4(d)
relating to the maintenance of a Participant Register and (iii) any
Excluded Taxes attributable to such Lender, in each case, that are
payable or paid by the Administrative Agent in connection with any
Loan Document, and any reasonable expenses arising therefrom or
with respect thereto, whether or not such Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability
delivered to any Lender by the Administrative Agent shall be
conclusive absent manifest error. Each Lender hereby authorizes the
Administrative Agent to set off and apply any and all amounts at
any time owing to such Lender under any Loan Document or otherwise
payable by the Administrative Agent to the Lender from any other
source against any amount due to the Administrative Agent under
this Section
2.22(e).
(f) Evidence of Payments. As soon
as practicable after any payment of Taxes by any Borrower or any
other Loan Party to a Governmental Authority pursuant to this
Section 2.22, such
Borrower or other Loan Party shall deliver to the Administrative
Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the
return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(g) Status of Lenders.
(i) Any
Lender that is entitled to an exemption from or reduction of
withholding Tax with respect to payments made under any Loan
Document shall deliver to the Borrower Representative and the
Administrative Agent, at the time or times reasonably requested by
the Borrower Representative or the Administrative Agent, such
properly completed and executed documentation reasonably requested
by the Borrower Representative or the Administrative Agent as will
permit such payments to be made without withholding or at a reduced
rate of withholding. In addition, any Lender, if reasonably
requested by the Borrower Representative or the Administrative
Agent, shall deliver such other documentation prescribed by
applicable law or reasonably requested by the Borrower
Representative or the Administrative Agent as will enable the
Borrowers or the Administrative Agent to determine whether or not
such Lender is subject to backup withholding or information
reporting requirements. Notwithstanding anything to the contrary in
the preceding two sentences, the completion, execution and
submission of such documentation (other than such documentation set
forth in Section 2.22(g)
(ii)(A), (ii)(B) and (ii)(D) below) shall not be
required if in the Lender’s reasonable judgment such
completion, execution or submission would subject such Lender to
any material unreimbursed cost or expense or would materially
prejudice the legal or commercial position of such
Lender.
(ii) Without
limiting the generality of the foregoing, in the event that any
Borrower is a U.S. Borrower:
(A) any
Lender that is a U.S. Person shall deliver to the Borrower
Representative and the Administrative Agent on or prior to the date
on which such Lender becomes a Lender under this Agreement (and
from time to time thereafter upon the reasonable request of the
Borrower Representative or the Administrative Agent) executed
originals of IRS Form W-9 certifying that such Lender is exempt
from U.S. federal backup withholding tax;
(B) any
Foreign Lender shall, to the extent it is legally entitled to do
so, deliver to the Borrower Representative and the Administrative
Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time
thereafter upon the reasonable request of the Borrower
Representative or the Administrative Agent) whichever of the
following is applicable:
(i) in
the case of a Foreign Lender claiming the benefits of an income tax
treaty to which the United States is a party (x) with respect to
payments of interest under any Loan Document, executed originals of
IRS Form W-8BEN or IRS Form W-8BEN-E, establishing an exemption
from, or reduction of, U.S. federal withholding Tax pursuant to the
“interest” article of such tax treaty and (y) with
respect to any other applicable payments under any Loan Document,
IRS Form W-8BEN or IRS Form W-8BEN-E, establishing an exemption
from, or reduction of, U.S. federal withholding Tax pursuant to the
“business profits” or “other income”
article of such tax treaty;
(ii) executed
originals of IRS Form W-8ECI;
(iii) in
the case of a Foreign Lender claiming the benefits of the exemption
for portfolio interest under Section 881(c) of the Code, (x) a
certificate substantially in the form of Exhibit 2.22-A to the effect
that such Foreign Lender is not a “bank” within the
meaning of Section 881(c)(3)(A) of the Code, a “10 percent
shareholder” of any Borrower within the meaning of Section
881(c)(3)(B) of the Code, or a “controlled foreign
corporation” described in Section 881(c)(3)(C) of the Code (a
“U.S. Tax Compliance
Certificate”) and (y) executed originals of IRS
Form W-8BEN or IRS Form W-8BEN-E; or
(iv) to
the extent a Foreign Lender is not the beneficial owner, executed
originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS
Form W-8BEN or IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate
substantially in the form of Exhibit 2.22-B or Exhibit 2.22-C, IRS Form W-9,
and/or other certification documents from each beneficial owner, as
applicable; provided that if the Foreign
Lender is a partnership and one or more direct or indirect partners
of such Foreign Lender are claiming the portfolio interest
exemption, such Foreign Lender may provide a U.S. Tax Compliance
Certificate substantially in the form of Exhibit 2.22-D on behalf of
each such direct and indirect partner;
(C) any
Foreign Lender shall, to the extent it is legally entitled to do
so, deliver to the Borrower Representative and the Administrative
Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender
becomes a Lender under this Agreement (and from time to time
thereafter upon the reasonable request of the Borrower
Representative or the Administrative Agent) executed originals of
any other form prescribed by applicable law as a basis for claiming
exemption from or a reduction in U.S. federal withholding Tax, duly
completed, together with such supplementary documentation as may be
prescribed by applicable law to permit the Borrowers or the
Administrative Agent to determine the withholding or deduction
required to be made; and
(D) if
a payment made to a Lender under any Loan Document would be subject
to U.S. federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements
of FATCA (including those contained in Section 1471(b) or 1472(b)
of the Code, as applicable), such Lender shall deliver to the
Borrower Representative and the Administrative Agent at the time or
times prescribed by law and at such time or times reasonably
requested by the Borrower Representative or the Administrative
Agent such documentation prescribed by applicable law (including as
prescribed by Section 1471(b)(3)(C)(i) of the Code) and such
additional documentation reasonably requested by the Borrower
Representative or the Administrative Agent as may be necessary for
the Borrowers and the Administrative Agent to comply with their
obligations under FATCA and to determine that such Lender has
complied with such Lender’s obligations under FATCA or to
determine the amount to deduct and withhold from such payment.
Solely for purposes of this clause (D), “FATCA” shall
include any amendments made to FATCA after the date of this
Agreement.
Each
Lender agrees that if any form or certification it previously
delivered expires or becomes obsolete or inaccurate in any respect,
it shall update such form or certification or promptly notify the
Borrower Representative and the Administrative Agent in writing of
its legal inability to do so.
(h) Treatment of Certain Refunds.
If any party determines, in its sole discretion exercised in good
faith, that it has received a refund of any Taxes as to which it
has been indemnified pursuant to this Section 2.22 (including by the
payment of additional amounts pursuant to this Section 2.22), it shall pay to
the indemnifying party an amount equal to such refund (but only to
the extent of indemnity payments made under this Section 2.22 with respect to
the Taxes giving rise to such refund), net of all out-of-pocket
expenses (including Taxes) of such indemnified party and without
interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund). Such indemnifying party,
upon the request of such indemnified party, shall repay to such
indemnified party the amount paid over pursuant to this
Section 2.22(h)
(plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) in the event that such indemnified
party is required to repay such refund to such Governmental
Authority. Notwithstanding anything to the contrary in this
Section 2.22(h), in
no event will the indemnified party be required to pay any amount
to an indemnifying party pursuant to this Section 2.22(h) the payment of
which would place the indemnified party in a less favorable net
after-Tax position than the indemnified party would have been in if
the Tax subject to indemnification and giving rise to such refund
had not been deducted, withheld or otherwise imposed and the
indemnification payments or additional amounts with respect to such
Tax had never been paid. This Section 2.22(h) shall not be
construed to require any indemnified party to make available its
Tax returns (or any other information relating to its Taxes that it
deems confidential) to the indemnifying party or any other
Person.
(i) Survival. Each party’s
obligations under this Section 2.22 shall survive the
resignation or replacement of the Administrative Agent or any
assignment of rights by, or the replacement of, a Lender, the
termination of the Commitments and the repayment, satisfaction or
discharge of all obligations under any Loan Document.
(a) The Borrowers shall
make each payment required to be made by them hereunder (whether of
principal, interest, fees or reimbursement of LC Disbursements, or
of amounts payable under Section 2.20 or 2.22, or otherwise) prior to
12:00 noon on the date when due, in immediately available funds,
free and clear of any defenses, rights of set-off, counterclaim, or
withholding or deduction of taxes. Any amounts received after such
time on any date may, in the discretion of the Administrative
Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such
payments shall be made to the Administrative Agent at the Payment
Office, except payments to be made directly to the Issuing Bank or
the Swingline Lender as expressly provided herein and except that
payments pursuant to Sections 2.20, 2.22 and 10.3 shall be made directly to
the Persons entitled thereto. The Administrative Agent shall
distribute any such payments received by it for the account of any
other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day
that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be made payable
for the period of such extension. All payments hereunder shall be
made in Dollars.
(b) If at any time
insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied as follows: first, to all fees and
reimbursable expenses of the Administrative Agent then due and
payable pursuant to any of the Loan Documents; second, to all reimbursable
expenses of the Lenders and all fees and reimbursable expenses of
the Issuing Bank then due and payable pursuant to any of the Loan
Documents, pro rata to the
Lenders and the Issuing Bank based on their respective pro rata shares of such fees and
expenses; third, to
all interest and fees then due and payable hereunder, pro rata to the Lenders based on their
respective pro rata shares
of such interest and fees; and fourth, to all principal of the
Loans and unreimbursed LC Disbursements then due and payable
hereunder, pro rata to the
parties entitled thereto based on their respective pro rata shares of such principal and
unreimbursed LC Disbursements.
(c) If any Lender
shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or participations in LC Disbursements
or Swingline Loans that would result in such Lender receiving
payment of a greater proportion of the aggregate amount of its
Revolving Credit Exposure, Term Loans and accrued interest and fees
thereon than the proportion received by any other Lender with
respect to its Revolving Credit Exposure or Term Loans, then the
Lender receiving such greater proportion shall purchase (for cash
at face value) participations in the Revolving Credit Exposure and
Term Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably
in accordance with the aggregate amount of principal of and accrued
interest on their respective Revolving Credit Exposure and Term
Loans; provided
that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored
to the extent of such recovery, without interest, and (ii) the
provisions of this subsection shall not be construed to apply to
any payment made by the Borrowers pursuant to and in accordance
with the express terms of this Agreement (including the application
of funds arising from the existence of a Defaulting Lender) or any
payment obtained by a Lender as consideration for the assignment of
or sale of a participation in any of its Revolving Credit Exposure
or Term Loans to any assignee or participant, other than to any
Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this subsection shall apply). Each Borrower consents
to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against such
Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of
such Borrower in the amount of such participation.
(d) Unless the
Administrative Agent shall have received notice from the Borrower
Representative prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing
Bank hereunder that the Borrowers will not make such payment, the
Administrative Agent may assume that the Borrowers have made such
payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the Lenders or the Issuing
Bank, as the case may be, the amount or amounts due. In such event,
if the Borrowers have not in fact made such payment, then each of
the Lenders or the Issuing Bank, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and
a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.
(a) During the Tranche
A Availability Period, the Issuing Bank, in reliance upon the
agreements of the other Lenders pursuant to Section 2.24(d) and
Section 2.24(e),
may, in its sole discretion, issue, at the request of the Borrower
Representative, Letters of Credit for the account of the
Borrowers on the terms
and conditions hereinafter set forth; provided that (i) each Letter
of Credit shall expire on the earlier of (A) the date one year
after the date of issuance of such Letter of Credit (or, in the
case of any renewal or extension thereof, one year after such
renewal or extension) and (B) the date that is five (5) Business
Days prior to the Tranche A Revolving Commitment Termination Date;
(ii) each Letter of Credit shall be in a stated amount of at least
$50,000 (or such lesser amount approved by the Administrative Agent
on a case by case basis); and (iii) the Borrowers may not request
any Letter of Credit if, after giving effect to such issuance, (A)
the aggregate LC Exposure would exceed the LC Commitment, (B) the
Aggregate Revolving Credit Exposure would exceed Availability (C)
the Aggregate Tranche A Revolving Credit Exposure would exceed the
Tranche A Availability, or (D) the Aggregate Tranche A-1 Revolving
Credit Exposure would exceed the Tranche A-1 Availability; and (iv)
the Borrowers shall not request, and the Issuing Bank shall have no
obligation to issue, any Letter of Credit the proceeds of which
would be made available to any Person (A) to fund any activity or
business of or with any Sanctioned Person or in any Sanctioned
Countries or, that, at the time of such funding, is the subject of
any Sanctions or (B) in any manner that would result in a violation
of any Sanctions by any party to this Agreement. Each Lender shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from
the Issuing Bank without recourse a participation in each Letter of
Credit equal to such Lender’s Pro Rata Share of the aggregate
amount available to be drawn under such Letter of Credit on the
date of issuance. Each issuance of a Letter of Credit shall be
deemed to utilize the Revolving Commitments of each Lender by an
amount equal to the amount of such participation.
(b) To request the
issuance of a Letter of Credit (or any amendment, renewal or
extension of an outstanding Letter of Credit), the Borrower
Representative shall give the Issuing Bank and the Administrative
Agent irrevocable written notice at least three (3) Business Days
prior to the requested date of such issuance specifying the date
(which shall be a Business Day) such Letter of Credit is to be
issued (or amended, renewed or extended, as the case may be), the
expiration date of such Letter of Credit, the amount of such Letter
of Credit, the name and address of the beneficiary
thereof and such other
information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. In addition to the satisfaction of
the conditions in Article
III, the issuance of such Letter of Credit (or any amendment
which increases the amount of such Letter of Credit) will be
subject to the further conditions that such Letter of Credit shall
be in such form and contain such terms as the Issuing Bank shall
approve and that the Borrowers shall have
executed and delivered any additional applications, agreements and
instruments relating to such Letter of Credit as the Issuing Bank
shall reasonably require; provided that in the event of
any conflict between such applications, agreements or instruments
and this Agreement, the terms of this Agreement shall
control.
(c) At least two (2)
Business Days prior to the issuance of any Letter of Credit, the
Issuing Bank will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received
such notice, and, if not, the Issuing Bank will provide the
Administrative Agent with a copy thereof. Unless the Issuing Bank
has received notice from the Administrative Agent, on or before the
Business Day immediately preceding the date the Issuing Bank is to
issue the requested Letter of Credit, directing the Issuing Bank
not to issue the Letter of Credit because such issuance is not then
permitted hereunder because of the limitations set forth in
subsection (a) of this Section or that one or more conditions
specified in Article
III are not then satisfied, then, subject to the terms and
conditions hereof, the Issuing Bank shall, on the requested date,
issue such Letter of Credit in accordance with the Issuing
Bank’s usual and customary business practices.
(d) The
Issuing Bank shall examine all documents purporting to represent a
demand for payment under a Letter of Credit promptly following its
receipt thereof. The Issuing Bank shall notify the Borrower
Representative and the Administrative Agent of such demand for
payment and whether the Issuing Bank has made or will make a LC
Disbursement thereunder; provided that any failure to
give or delay in giving such notice shall not relieve the Borrowers
of their obligation to reimburse the Issuing Bank and the Lenders
with respect to such LC Disbursement. The Borrowers shall be
irrevocably and unconditionally obligated, jointly and severally,
to reimburse the Issuing Bank for any LC Disbursements paid by the
Issuing Bank in respect of such drawing, without presentment,
demand or other formalities of any kind. Unless the Borrower
Representative shall have notified the Issuing Bank and the
Administrative Agent prior to 11:00 a.m. on the Business Day
immediately prior to the date on which such drawing is honored that
the Borrowers intend to reimburse the Issuing Bank for the amount
of such drawing in funds other than from the proceeds of Revolving
Loans, the Borrowers shall be deemed to have timely given a Notice
of Revolving Borrowing to the Administrative Agent requesting the
Lenders to make a Revolving Borrowing on the date on which such drawing
is honored in an exact amount due to the Issuing Bank, which shall
be for a Tranche A Revolving Loan or a Tranche A-1 Revolving Loan,
as applicable, in accordance with Section 2.2(c); provided that for purposes
solely of such Borrowing, the conditions precedent set forth in
Section 3.2 hereof
shall not be applicable. The Administrative Agent shall notify the
Lenders of such Borrowing in accordance with Section 2.3, and each Lender
shall make the proceeds of its Base Rate Loan included in such
Borrowing available to the Administrative Agent for the account of
the Issuing Bank in accordance with Section 2.8. The proceeds of
such Borrowing shall be applied directly by the Administrative
Agent to reimburse the Issuing Bank for such LC
Disbursement.
(e) If
for any reason a Revolving Borrowing may not be (as determined in
the sole discretion of the Administrative Agent), or is not, made
in accordance with the foregoing provisions, then each Lender
(other than the Issuing Bank) shall be obligated to fund the
participation that such Lender purchased pursuant to subsection (a)
of this Section in an amount equal to its Pro Rata
Share of such LC
Disbursement on and as of the date which such Revolving Borrowing
should have occurred. Each Lender’s obligation to
fund its participation shall be absolute and unconditional and
shall not be affected by any circumstance, including, (i) any
set-off, counterclaim, recoupment, defense or other right that such
Lender or any other Person may have against the Issuing Bank or any
other Person for any reason whatsoever, (ii) the existence of a
Default or an Event of Default or the termination of all or any
portion of the Aggregate Revolving Commitments, the Aggregate
Tranche A Revolving Commitments or the Aggregate Tranche A-1
Revolving Commitments, (iii) any adverse change in the condition
(financial or otherwise) of any Borrower or any of its
Subsidiaries, (iv) any breach of this Agreement by any Borrower or
any other Lender, (v) any amendment, renewal or extension of any
Letter of Credit or (vi) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing. On the
date that such participation is required to be funded, each Lender
shall promptly transfer, in immediately available funds, the amount
of its participation to the Administrative Agent for the account of
the Issuing Bank. Whenever, at any time after the Issuing Bank has
received from any such Lender the funds for its participation in a
LC Disbursement, the Issuing Bank (or the Administrative Agent on
its behalf) receives any payment on account thereof, the
Administrative Agent or the Issuing Bank, as the case may be, will
distribute to such Lender its Pro Rata Share of such payment;
provided that if
such payment is required to be returned for any reason to the
Borrowers or to a trustee, receiver, liquidator, custodian or
similar official in any bankruptcy proceeding, such Lender will
return to the Administrative Agent or the Issuing Bank any portion
thereof previously distributed by the Administrative Agent or the
Issuing Bank to it.
(f) To the extent that
any Lender shall fail to pay any amount required to be paid
pursuant to Section
2.24(d) or 2.24(e) on the due date
therefor, such Lender shall pay interest to the Issuing Bank
(through the Administrative Agent) on such amount from such due
date to the date such payment is made at a rate per annum equal to the Federal Funds
Rate; provided that
if such Lender shall fail to make such payment to the Issuing Bank
within three (3) Business Days after such due date, then,
retroactively to the due date, such Lender shall be obligated to
pay interest on such amount at the rate set forth in Section 2.15(b) for Tranche A
Revolving Loans.
(g) If any Event of
Default shall occur and be continuing on the Business Day that the
Borrower Representative receives notice from the Administrative
Agent or the Required Lenders demanding that the Borrowers’
reimbursement obligations with respect to the Letters of Credit be
Cash Collateralized pursuant to this Section 2.24(g), the Borrowers
shall deposit in an account with the Administrative Agent, in the
name of the Administrative Agent and for the benefit of the Issuing
Bank and the Lenders, an amount in cash equal to 103% of the
aggregate LC Exposure of all Lenders as of such date plus any
accrued and unpaid fees thereon; provided that such obligation
to Cash Collateralize the reimbursement obligations of the
Borrowers with respect to the Letters of Credit shall become
effective immediately, and such deposit shall become immediately
due and payable, without demand or notice of any kind, upon the
occurrence of any Event of Default with respect to any Borrower
described in Section
8.1(h) or 8.1(i). Such deposit shall be
held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrowers under this
Agreement. The Administrative Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over such
account. The Borrowers agree to execute any documents and/or
certificates to effectuate the intent of this Section 2.24(g). Other than any
interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrowers’ risk and expense,
such deposits shall not bear interest. Interest and profits, if
any, on such investments shall accumulate in such account. Moneys
in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it had
not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the
Borrowers for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated, with the consent of the Required
Lenders, be applied to satisfy other Obligations of the Borrowers
under this Agreement and the other Loan Documents. If the Borrowers
are required to Cash Collateralize their reimbursement obligations
with respect to the Letters of Credit as a result of the occurrence
of an Event of Default, such cash collateral so posted (to the
extent not so applied as aforesaid) shall be returned to the
Borrowers within three (3) Business Days after all Events of
Default have been waived in writing by the Administrative Agent and
to the extent appliable, the Lenders.
(h) Upon the request of
any Lender, but no more frequently than quarterly, the Issuing Bank
shall deliver (through the Administrative Agent) to each Lender and
the Borrower Representative a report describing the aggregate
Letters of Credit then outstanding. Upon the request of any Lender
from time to time, the Issuing Bank shall deliver to such Lender
any other information reasonably requested by such Lender with
respect to each Letter of Credit then outstanding.
(i) The
Borrowers’ obligations to reimburse LC Disbursements
hereunder shall be absolute, unconditional and irrevocable and
shall be performed strictly in accordance with the terms of this
Agreement under all circumstances whatsoever and irrespective of
any of the following circumstances:
(i) any
lack of validity or enforceability of any Letter of Credit or this
Agreement;
(ii) the
existence of any claim, set-off, defense or other right which any
Borrower or any Subsidiary or Affiliate of any Borrower may have at
any time against a beneficiary or any transferee of any Letter of
Credit (or any Persons or entities for whom any such beneficiary or
transferee may be acting), any Lender (including the Issuing Bank)
or any other Person, whether in connection with this Agreement or
the Letter of Credit or any document related hereto or thereto or
any unrelated transaction;
(iii) any
draft or other document presented under a Letter of Credit proving
to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) payment
by the Issuing Bank under a Letter of Credit against presentation
of a draft or other document to the Issuing Bank that does not
comply with the terms of such Letter of Credit;
(v) any
other event or circumstance whatsoever, whether or not similar to
any of the foregoing, that might, but for the provisions of this
Section 2.24,
constitute a legal or equitable discharge of, or provide a right of
set-off against, the Borrowers’ obligations hereunder;
or
(vi) the
existence of a Default or an Event of Default.
Neither
the Administrative Agent, the Issuing Bank, any Lender nor any
Related Party of any of the foregoing shall have any liability or
responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make
any payment thereunder (irrespective of any of the circumstances
referred to above), or any error, omission, interruption, loss or
delay in transmission or delivery of any draft, notice or other
communication under or relating to any Letter of Credit (including
any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Bank; provided that the foregoing
shall not be construed to excuse the Issuing Bank from liability to
the Borrowers to the extent of any actual direct damages (as
opposed to special, indirect (including claims for lost profits or
other consequential damages), or punitive damages, claims in
respect of which are hereby waived by the Borrowers to the extent
permitted by applicable law) suffered by the Borrowers that are
caused by the Issuing Bank’s failure to exercise due care
when determining whether drafts or other documents presented under
a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or
willful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank
shall be deemed to have exercised due care in each such
determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to
documents presented that appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation,
regardless of any notice or information to the contrary, or refuse
to accept and make payment upon such documents if such documents
are not in strict compliance with the terms of such Letter of
Credit.
(j) Unless otherwise
expressly agreed by the Issuing Bank and the Borrower
Representative when a Letter of Credit is issued and subject to
applicable laws, (i) each standby Letter of Credit shall be
governed by the “International Standby Practices 1998”
(ISP98) (or such later revision as may be published by the
Institute of International Banking Law & Practice on any date
any Letter of Credit may be issued), (ii) each documentary Letter
of Credit shall be governed by the Uniform Customs and Practices
for Documentary Credits (2007 Revision), International Chamber of
Commerce Publication No. 600 (or such later revision as may be
published by the International Chamber of Commerce on any date any
Letter of Credit may be issued) and (iii) the Borrower
Representative shall specify the foregoing in each letter of credit
application submitted for the issuance of a Letter of
Credit.
(a) From time to time
after the Closing Date and in accordance with this Section 2.25, the Borrowers and
one or more Increasing Lenders or Additional Lenders (each as
defined below) may enter into an agreement to increase the
Aggregate Tranche A Revolving Commitments (each such increase, an
“Incremental Tranche
A Revolving Commitment”) so long as the following
conditions are satisfied:
(i) the
aggregate principal amount of all such Incremental Tranche A
Revolving Commitments made pursuant to this Section 2.25 shall not exceed
$20,000,000 (the
principal amount of each such Incremental Tranche A Revolving
Commitment, the “Incremental Tranche A Revolving
Commitment Amount”);
(ii) the
Borrowers shall execute and deliver such documents and instruments
and take such other actions as may be reasonably required by
the Administrative Agent in connection with and at the time of any
such proposed increase;
(iii) at
the time of and immediately after giving effect to any such
proposed increase, (x) no Default or Event of Default shall exist,
(y) all representations and warranties of each Loan Party set forth
in the Loan Documents shall be true and correct in all material
respects (other than those representations and warranties that are
expressly qualified by a Material Adverse Effect or other
materiality, in which case such representations and warranties
shall be true and correct in all respects), and (z) since December
31, 2019, there shall have been no change which has had or could
reasonably be expected to have a Material Adverse
Effect;
(iv) [reserved];
(v) the
Borrowers and their Subsidiaries shall be in pro forma compliance
with each of the financial covenants set forth in Article VI as of the most
recently ended Fiscal Month for which financial statements are
required to have been delivered, calculated as if all such
Incremental Tranche A Revolving Commitments had been established
(and fully funded) as of the first day of the relevant period for
testing compliance;
(vi) any
Incremental Tranche A Revolving Commitments shall have the same
terms and conditions as the Tranche A Revolving Commitments,
including interest rates, covenants, collateral and maturity (other
than any arrangement, upfront or similar fees paid to the Lenders
or the Administrative Agent under the Incremental Tranche A
Revolving Commitments) and any commitment, arrangement, upfront or
similar fees paid to the Lenders or the Administrative Agent under
the Incremental Tranche A Revolving Commitments;
(vii) after
giving effect to the issuance of any Incremental Tranche A
Revolving Commitment, each Lender shall maintain the same Pro Rata
Share of each of the Aggregate Tranche A Revolving Commitments
(after giving effect to the Incremental Tranche A Revolving
Commitment), the Aggregate Tranche A-1 Revolving Commitments and
the Term Loan, and each Lender agrees to make such assignments of
its Tranche A-1 Revolving Commitments and the Term Loan in order
for each Lender to hold such Pro Rata Share;
(viii) the
Borrowers shall satisfy all of the conditions set forth in
Section 3.2 on the
date of the issuance of the Incremental Tranche A Revolving
Commitments;
(ix) all
other terms and conditions with respect to any such Incremental
Tranche A Revolving Commitments shall be reasonably satisfactory to
the Administrative Agent; and
(x) the
Loan Parties shall provide to the Administrative Agent and each
Lender with respect to all Mortgaged Property (A) if required by
the Administrative Agent, an updated "Life of Loan" Federal
Emergency Management Agency Standard Flood Hazard determinations,
(B) notices, in the form required under the Flood Insurance Laws,
about special flood hazard area status and flood disaster
assistance duly executed by each applicable Loan Party, and (C) if
any improved real property encumbered by any Mortgage is located in
a special flood hazard area, a policy of flood insurance that is on
terms satisfactory to each Lender.
(b) The Borrower
Representative shall provide at least thirty (30) days’ prior
written notice to the Administrative Agent (who shall promptly
provide a copy of such notice to each Lender) of any proposal to
establish an Incremental Tranche A Revolving Commitment. The
Borrower Representative may also, but is not required to,
specify any fees offered to those Lenders (the “Increasing Lenders”) that
agree to increase the principal amount of their Tranche A Revolving
Commitments, which fees may be variable based upon the amount
by which any such Lender is willing to increase the principal
amount of its Tranche A Revolving Commitment. Each Increasing
Lender shall as soon as practicable, and in any case within fifteen
(15) days following receipt of such notice, specify in a written
notice to the Borrower Representative and the Administrative Agent
the amount of such proposed Incremental Tranche A Revolving
Commitment that it is willing to provide. No Lender (or any
successor thereto) shall have any obligation, express or implied,
to offer to increase the aggregate principal amount of its Tranche
A Revolving Commitment, and any decision by a Lender to increase
its Tranche A Revolving Commitment shall be made in its sole
discretion independently from any other Lender. Only the consent of
each Increasing Lender shall be required for an increase in the
aggregate principal amount of the Revolving Commitments pursuant to
this Section. No Lender which declines to increase the principal
amount of its Tranche A Revolving Commitment may be replaced
with respect to its existing Tranche A Revolving Commitment as a
result thereof without such Lender’s consent. If any Lender
shall fail to notify the Borrower Representative and the
Administrative Agent in writing about whether it will increase its
Tranche A Revolving Commitment within fifteen (15) days after
receipt of such notice, such Lender shall be deemed to have
declined to increase its Tranche A Revolving Commitment. The
Borrowers may accept some or all of the offered amounts or
designate new lenders that are acceptable to the Administrative
Agent (such approval not to be unreasonably withheld) as additional
Lenders hereunder in accordance with this Section (the
“Additional
Lenders”), which Additional Lenders may assume
all or a portion of such Incremental Tranche A Revolving
Commitment. The Borrowers and the Administrative Agent shall have
discretion jointly to adjust the allocation of such Incremental
Tranche A Revolving Commitments among the Increasing Lenders and
the Additional Lenders. The sum of the increase in the Tranche A
Revolving Commitments of the Increasing Lenders plus the Tranche A
Revolving Commitments of the Additional Lenders shall not in the
aggregate exceed the unsubscribed amount of the Incremental Tranche
A Revolving Commitment Amount.
(c) Subject to
Sections 2.25(a)
and 2.25(b), any
increase requested by the Borrowers shall be effective upon
delivery to the Administrative Agent of each of the following
documents:
(i) an
originally executed copy of an instrument of joinder, in form and
substance reasonably acceptable to the Administrative Agent,
executed by each Borrower, by each Additional Lender and by each
Increasing Lender, setting forth the new Tranche A Revolving
Commitments of such Lenders and setting forth the agreement of each
Additional Lender to become a party to this Agreement and to be
bound by all of the terms and provisions hereof;
(ii) such
evidence of appropriate corporate authorization on the part of the
Borrowers with respect to such Incremental Tranche A Revolving
Commitment and such opinions of counsel for the Borrowers with
respect to such Incremental Tranche A Revolving Commitment as the
Administrative Agent may reasonably request;
(iii) a
certificate of the Borrower Representative signed by a Responsible
Officer, in form and substance reasonably acceptable to the
Administrative Agent, certifying that each of the conditions in
Section 2.25(a) has
been satisfied;
(iv) to
the extent requested by any Additional Lender or any Increasing
Lender, executed promissory notes evidencing such Incremental
Tranche A Revolving Commitments issued by the Borrowers in
accordance with Section 2.12;
and
(v) any
other certificates or documents that the Administrative Agent shall
reasonably request, in form and substance reasonably satisfactory
to the Administrative Agent.
Upon
the effectiveness of any such Incremental Tranche A Revolving
Commitment, the Commitments and Pro Rata Share of each Lender will
be adjusted to give effect to the Incremental Tranche A Revolving
Commitments and Schedule
II shall automatically be deemed amended
accordingly.
. If any Lender requests
compensation under Section
2.20, or if the Borrowers are required to pay any additional
amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.22, then such Lender
shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the sole judgment of such Lender,
such designation or assignment (i) would eliminate or reduce
amounts payable under Section 2.20 or Section 2.22, as the case may
be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrowers hereby, jointly and
severally, agree to pay all costs and expenses incurred by any
Lender in connection with such designation or
assignment.
If (a)
any Lender requests compensation under Section 2.20, or if any
Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant
to Section 2.22,
(b) any Lender is a Defaulting Lender, or (c) in connection with
any proposed amendment, modification, termination, waiver or
consent with respect to any of the provisions hereof as
contemplated by Section
10.2(b), the consent of the Required Lenders shall have been
obtained but the consent of one or more of such other Lenders
(each, a “Non-Consenting Lender”)
whose consent is required shall not have been obtained, then the
Borrowers may, at their sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and
subject to the restrictions set forth in Section 10.4(b)), all of its
interests, rights (other than its existing rights to payments
pursuant to Section
2.20 or 2.22, as applicable) and
obligations under this Agreement to an Eligible Assignee that shall
assume such obligations (which assignee may be another Lender if
agreed to by such Lender) (a “Replacement Lender”);
provided that (i)
the Borrowers shall have received the prior written consent of the
Administrative Agent, which consent shall not be unreasonably
withheld, (ii) such Lender shall have received payment of an amount
equal to the outstanding principal amount of all Loans owed to it,
accrued interest thereon, accrued fees and all other amounts
payable to it hereunder from the assignee (in the case of such
outstanding principal and accrued interest) and from the Borrowers
(in the case of all other amounts), and (iii) in the case of a
claim for compensation under Section 2.20 or payments
required to be made pursuant to Section 2.22, such assignment
will result in a reduction in such compensation or payments. A
Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrowers to
require such assignment and delegation cease to apply.
(a) Cash Collateral.
(i) At
any time that there shall exist a Defaulting Lender, within one
Business Day following the written request of the Administrative
Agent or the Issuing Bank (with a copy to the Administrative Agent)
the Borrowers shall Cash Collateralize the Issuing Bank’s LC
Exposure with respect to such Defaulting Lender (determined after
giving effect to Section
2.28(b)(iv) and any Cash Collateral provided by such
Defaulting Lender) in an amount not less than 103% of the Issuing
Bank’s LC Exposure with respect to such Defaulting
Lender.
(ii) The
Borrowers and, to the extent provided by any Defaulting Lender,
such Defaulting Lender, hereby grant to the Administrative Agent,
for the benefit of the Issuing Bank and the other Secured Parties,
and agree to maintain, a first priority security interest in all
such Cash Collateral as security for such Defaulting Lender’s
obligations to fund participations in respect of Letters of Credit,
to be applied pursuant to clause (iii) below. If at any time the
Administrative Agent determines that such Cash Collateral is
subject to any right or claim of any Person other than the
Administrative Agent and the Issuing Bank as herein provided, or
that the total amount of such Cash Collateral is less than the
minimum amount required pursuant to clause (i) above, the Borrowers
will, promptly upon demand by the Administrative Agent, pay or
provide to the Administrative Agent additional Cash Collateral in
an amount sufficient to eliminate such deficiency (after giving
effect to any Cash Collateral provided by the applicable Defaulting
Lender).
(iii) Notwithstanding
anything to the contrary contained in this Agreement, Cash
Collateral provided under this Section 2.28(a) or Section 2.28(b) in respect of
Letters of Credit shall be applied to the satisfaction of the
applicable Defaulting Lender’s obligation to fund
participations in respect of Letters of Credit or LC Disbursements
(including, as to Cash Collateral provided by a Defaulting Lender,
any interest accrued on such obligation) for which the Cash
Collateral was so provided, prior to any other application of such
property as may otherwise be provided for herein.
(iv) Cash
Collateral (or the appropriate portion thereof) provided to reduce
any Issuing Bank’s LC Exposure shall no longer be required to
be held as Cash Collateral pursuant to this Section 2.28(a) following (A)
the elimination of the applicable LC Exposure (including by the
termination of the Defaulting Lender status of the applicable
Lender) or (ii) the determination by the Administrative Agent and
the Issuing Bank that there exists excess Cash Collateral;
provided that,
subject to Section
2.28(b) through 2.28(d), the Person providing
Cash Collateral and each Issuing Bank may agree that Cash
Collateral shall be held to support future anticipated LC Exposure
or other obligations; and provided, further, that, to the extent
that such Cash Collateral was provided by the Borrowers, such Cash
Collateral shall remain subject to the security interest granted
pursuant to the Loan Documents.
(b) Defaulting
Lender Adjustments. Notwithstanding anything to the contrary
contained in this Agreement, if any Lender becomes a Defaulting
Lender, then, until such time as such Lender is no longer a
Defaulting Lender, to the extent permitted by applicable
law:
(i) Such
Defaulting Lender’s right to approve or disapprove any
amendment, waiver or consent with respect to this Agreement shall
be restricted as set forth in the definitions of “Required
Lenders”, and “Required Revolving Lenders” and in
Section
10.2.
(ii) Any
payment of principal, interest, fees or other amounts received by
the Administrative Agent for the account of such Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to
Article VIII or
otherwise) or received by the Administrative Agent from a
Defaulting Lender pursuant to Section 10.7 shall be applied
at such time or times as may be determined by the Administrative
Agent as follows: first, to the payment of any
amounts owing by such Defaulting Lender to the Administrative Agent
hereunder; second,
to the payment on a pro
rata basis of any amounts owing by such Defaulting Lender to
the Issuing Bank or the Swingline Lender hereunder; third, to Cash Collateralize
the Issuing Bank’s LC Exposure with respect to such
Defaulting Lender in accordance with Section 2.28(a); fourth, as the Borrowers may
request (so long as no Default or Event of Default exists), to the
funding of any Loan in respect of which such Defaulting Lender has
failed to fund its portion thereof as required by this Agreement,
as determined by the Administrative Agent; fifth, if so determined by the
Administrative Agent and the Borrowers, to be held in a deposit
account and released pro
rata in order to (x) satisfy such Defaulting Lender’s
potential future funding obligations with respect to Loans under
this Agreement and (y) Cash Collateralize the Issuing Banks’
future LC Exposure with respect to such Defaulting Lender with
respect to future Letters of Credit issued under this Agreement, in
accordance with Section
2.28(a); sixth, to the payment of any
amounts owing to the Lenders, the Issuing Bank or the Swingline
Lender as a result of any judgment of a court of competent
jurisdiction obtained by any Lender, the Issuing Bank or the
Swingline Lender against such Defaulting Lender as a result of such
Defaulting Lender’s breach of its obligations under this
Agreement; seventh,
so long as no Default or Event of Default exists, to the payment of
any amounts owing to the Borrowers as a result of any judgment of a
court of competent jurisdiction obtained by the Borrowers against
such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement; and
eighth, to such
Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided that if (x) such
payment is a payment of the principal amount of any Loans or LC
Disbursements in respect of which such Defaulting Lender has not
fully funded its appropriate share and (y) such Loans were made or
the related Letters of Credit were issued at a time when the
conditions set forth in Section 3.2 were satisfied or
waived, such payment shall be applied solely to pay the Loans of,
and LC Disbursements owed to, all Non-Defaulting Lenders on a
pro rata basis prior to
being applied to the payment of any Loans of, or LC Disbursements
owed to, such Defaulting Lender until such time as all Loans and
funded and unfunded participations in LC Obligations and Swingline
Loans are held pro rata by
the Lenders in accordance with the applicable Commitments under the
applicable facility without giving effect to subsection (iv)
below). Any payments, prepayments or other amounts paid or payable
to a Defaulting Lender that are applied (or held) to pay amounts
owed by a Defaulting Lender or to post Cash Collateral pursuant to
this Section
2.28(b)(ii) shall be deemed paid to and redirected by such
Defaulting Lender, and each Lender irrevocably consents
hereto.
(iii) (A) No
Defaulting Lender shall be entitled to receive any commitment fee
pursuant to Section
2.16(b) for any period during which that Lender is a
Defaulting Lender (and the Borrowers shall not be required to pay
any such fee that otherwise would have been required to have been
paid to that Defaulting Lender.
(B) Each
Defaulting Lender shall be entitled to receive letter of credit
fees pursuant to Section
2.16(c) for any period during which that Lender is a
Defaulting Lender only to the extent allocable to that portion of
its LC Exposure for which it has provided Cash Collateral pursuant
to Section
2.28(a).
(C) With
respect to any commitment fee or letter of credit fee not required
to be paid to any Defaulting Lender pursuant to clause (A) or (B)
above, the Borrowers shall (x) pay to each Non-Defaulting Lender
that portion of any such fee otherwise payable to such Defaulting
Lender with respect to such Defaulting Lender’s participation
in Letters of Credit or Swingline Loans that has been reallocated
to such Non-Defaulting Lender pursuant to clause (iv) below, (y)
pay to each Issuing Bank and the Swingline Lender, as applicable,
the amount of any such fee otherwise payable to such Defaulting
Lender to the extent allocable to the Issuing Bank’s LC
Exposure or the Swingline Lender’s Swingline Exposure with
respect to such Defaulting Lender, and (z) not be required to
pay the remaining amount of any such fee.
(iv) All
or any part of such Defaulting Lender’s participation in
Letters of Credit and Swingline Loans shall be reallocated among
the Non-Defaulting Lenders in accordance with their respective Pro
Rata Shares of the Revolving Commitments (calculated without regard
to such Defaulting Lender’s Revolving Commitment) but only to
the extent that (x) the conditions set forth in Section 3.2 are satisfied at
the time of such reallocation (and, unless the Borrowers shall have
otherwise notified the Administrative Agent at such time, the
Borrowers shall be deemed to have represented and warranted that
such conditions are satisfied at such time) and (y) such
reallocation does not cause the Aggregate Revolving Credit Exposure
of any Non-Defaulting Lender to exceed such Non-Defaulting
Lender’s Revolving Commitment. Subject to Section 10.17, no reallocation
hereunder shall constitute a waiver or release of any claim of any
party hereunder against a Defaulting Lender arising from that
Lender having become a Defaulting Lender, including any claim of a
Non-Defaulting Lender as a result of such Non-Defaulting
Lender’s increased exposure following such
reallocation.
(v) If
the reallocation described in clause (iv) above cannot, or can only
partially, be effected, the Borrowers shall, without prejudice to
any right or remedy available to it hereunder or under law, (x)
first, prepay
Swingline Loans in an amount equal to the Swingline Lender’s
Swingline Exposure with respect to such Defaulting Lender and (y)
second, Cash
Collateralize the Issuing Banks’ LC Exposure with respect to
such Defaulting Lender in accordance with the procedures set forth
in Section
2.28(a).
(c) Defaulting Lender Cure. If the
Borrower Representative, the Administrative Agent, the Swingline
Lender and the Issuing Bank agree in writing that a Lender is no
longer a Defaulting Lender, the Administrative Agent will so notify
the parties hereto, whereupon as of the effective date specified in
such notice and subject to any conditions set forth therein (which
may include arrangements with respect to any Cash Collateral), that
Lender will, to the extent applicable, purchase at par that portion
of outstanding Loans of the other Lenders or take such other
actions as the Administrative Agent may determine to be necessary
to cause the Loans and funded and unfunded participations in
Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance
with the applicable Commitments (without giving effect to
Section
2.28(b)(iv)), whereupon such Lender will cease to be a
Defaulting Lender; provided that no adjustments
will be made retroactively with respect to fees accrued or payments
made by or on behalf of the Borrowers while that Lender was a
Defaulting Lender; provided, further, that, except to the
extent otherwise expressly agreed by the affected parties, no
change hereunder from Defaulting Lender to Lender will constitute a
waiver or release of any claim of any party hereunder arising from
that Lender’s having been a Defaulting Lender.
(d) New
Swingline Loans/Letters of Credit. So long as any Lender is
a Defaulting Lender, (i) the Swingline Lender shall not be required
to fund any Swingline Loans unless it is satisfied that it will
have no Swingline Exposure after giving effect to such Swingline
Loan and (ii) no Issuing Bank shall be required to issue, extend,
renew or increase any Letter of Credit unless it is satisfied that
it will have no LC Exposure after giving effect
thereto.
(a) Joint and Several Liability.
Each Borrower shall be liable for, on a joint and several basis,
and hereby guarantees the timely payment by all other Borrowers of,
all of the Loans and other Obligations, regardless of which
Borrower actually may have received the proceeds of any Loans or
other extensions of credit hereunder or the amount of such Loans
received or the manner in which the Administrative Agent or any
Lender accounts for such Loans or other extensions of credit on its
books and records, it being acknowledged and agreed that Loans to
any Borrower inure to the mutual benefit of all Borrowers and that
the Administrative Agent and the Lenders are relying on the joint
and several liability of the Borrowers in extending the Loans and
other financial accommodations hereunder. Each Borrower hereby
unconditionally and irrevocably agrees to pay when due (without
notice or demand or, if no due date is specified hereunder, upon
demand) all principal of, and interest owed on, the Loans and all
other Obligations.
(b) Unconditional Nature of
Liability. Each Borrower’s joint and several liability
hereunder with respect to, and guaranty of, the Loans and other
Obligations shall, to the fullest extent permitted by applicable
law, be unconditional irrespective of (i) the validity,
enforceability, avoidance or subordination of any of the
Obligations or of any promissory note or other document evidencing
all or any part of the Obligations, (ii) the absence of any attempt
to collect any of the Obligations from any other Loan Party or any
Collateral or other security therefor, or the absence of any other
action to enforce the same, (iii) the waiver, consent, extension,
forbearance or granting of any indulgence by the Administrative
Agent or any Lender with respect to any provision of any instrument
evidencing or securing the payment of any of the Obligations, or
any other agreement now or hereafter executed by any other Borrower
and delivered to the Administrative Agent or any Lender, (iv) the
failure by the Administrative Agent to take any steps to perfect or
maintain the perfected status of its security interest in or Lien
upon, or to preserve its rights to, any of the Collateral or other
security for the payment or performance of any of the Obligations
or the Administrative Agent’s release of any Collateral or of
its Liens upon any Collateral, (v) the Administrative Agent’s
or any Lender’s election, in any proceeding instituted under
the Bankruptcy Code, for the application of Section 1111(b)(2) of
the Bankruptcy Code, (vi) any borrowing or grant of a security
interest by any other Borrower as debtor-in-possession under
Section 364 of the Bankruptcy Code, (vii) the release or
compromise, in whole or in part, of the liability of any other Loan
Party for the payment of any of the Obligations, (viii) any
amendment or modification of any of the Loan Documents or any
waiver of a Default or an Event of Default, (ix) any increase in
the amount of the Obligations beyond any limits imposed herein or
in the amount of any interest, fees or other charges payable in
connection therewith, or any decrease in the same, (x) the
disallowance of all or any portion of the Administrative
Agent’s or any Lender’s claims against any other Loan
Party for the repayment of any of the Obligations under Section 502
of the Bankruptcy Code, or (xi) any other circumstance that might
constitute a legal or equitable discharge or defense of any other
Loan Party. After the occurrence and during the continuance of any
Event of Default, the Administrative Agent may proceed directly and
at once, without notice to any Loan Party, against any or all of
the Loan Parties to collect and recover all or any part of the
Obligations, without first proceeding against any other Loan Party
or against any Collateral or other security for the payment or
performance of any of the Obligations, and each Borrower waives any
provision under applicable law that might otherwise require the
Administrative Agent to pursue or exhaust its remedies against any
Collateral or any Loan Party before pursuing another Loan Party.
Each Borrower consents and agrees that the Administrative Agent
shall be under no obligation to marshal any assets in favor of any
Loan Party or against or in payment of any or all of the
Obligations.
(c) No Reduction in Liability for
Obligations. No payment or payments made by any Loan Party
or received or collected by the Administrative Agent or any Lender
from any Borrower or any other Person by virtue of any action or
proceeding or any setoff or appropriation or application at any
time or from time to time in reduction of or in payment of the
Obligations shall be deemed to modify, reduce, release or otherwise
affect the liability of any Borrower under this Agreement and the
other Loan Documents, each of whom shall remain jointly and
severally liable for the payment and performance of all Loans and
other Obligations until Payment in Full of the
Obligations.
(d) Contribution. Each Borrower is
unconditionally obligated to repay the Obligations as a joint and
several obligor under this Agreement and the other Loan Documents.
If, as of any date, the aggregate amount of payments made by any
Borrower on account of the Obligations and proceeds of such
Borrower’s Collateral that are applied to the Obligations
exceeds the aggregate amount of Loan proceeds actually used by such
Borrower in its business (such excess amount being referred to as
an “Accommodation
Payment”), then each of the other Borrowers (each such
Borrower being referred to as a “Contributing Borrower”)
shall be obligated to make contribution to such Borrower (the
“Paying
Borrower”) in an amount equal to (A) the product
derived by multiplying the sum of each Accommodation Payment of the
Paying Borrower by the Allocable Percentage of the Contributing
Borrower from whom contribution is sought less (B) the amount, if any, of
the then outstanding Accommodation Payments of such Contributing
Borrower (such last mentioned amount which is to be subtracted from
the aforesaid product to be increased by any amounts theretofore
paid by such Contributing Borrower by way of contribution
hereunder, and to be decreased by any amounts theretofore received
by such Contributing Borrower by way of contribution hereunder);
provided that the
Paying Borrower’s recovery of contribution hereunder from the
other Borrowers shall be limited to that amount paid by the Paying
Borrower in excess of its Allocable Percentage of all Accommodation
Payments then outstanding of all Borrowers. As used herein, the
term “Allocable
Percentage” shall mean, on any date of determination
thereof, a fraction the denominator of which shall be equal to the
number of Borrowers who are parties to this Agreement on such date
and the numerator of which shall be 1; provided that such percentages
shall be modified in the event that contribution from a Borrower is
not possible by reason of insolvency, bankruptcy or otherwise by
reducing such Borrower’s Allocable Percentage equitably and
by adjusting the Allocable Percentage of the other Borrowers
proportionately so that the Allocable Percentages of all Borrowers
at all times equals 100%.
(e) Subordination. Each Borrower
hereby subordinates any claims, including any rights of payment,
subrogation, contribution and indemnity, that it may have from or
against any other Loan Party, and any successor or assign of any
other Loan Party, including any trustee, receiver or debtor in
possession, howsoever arising, due or owing or whether heretofore,
now or hereafter existing, to the Payment in Full of all of the
Obligations.
. Each
Borrower hereby designates Holdings as its representative and agent
(in such capacity, the “Borrower Representative”)
for all purposes under the Loan Documents, including requests for
and receipt of Loans and Letters of Credit, designation of interest
rates, delivery or receipt of communications, payment of
Obligations, requests for waivers, amendments or other
accommodations, actions under the Loan Documents (including in
respect of compliance with covenants), and all other dealings with
the Administrative Agent and the Lenders. Borrower Representative
hereby accepts such appointment. The Administrative Agent and the
Lenders shall be entitled to rely upon, and shall be fully
protected in relying upon, any notice or communication (including
any notice of borrowing) delivered by the Borrower Representative
on behalf of any Borrower. The Administrative Agent and the Lenders
may give any notice or communication with a Borrower hereunder to
the Borrower Representative on behalf of such Borrower. The
Administrative Agent and the Lenders shall have the right, in their
discretion, to deal exclusively with the Borrower Representative
for all purposes under the Loan Documents. Each Borrower agrees
that any notice, election, communication, delivery, representation,
agreement, action or undertaking on its behalf by the Borrower
Representative shall be binding upon and enforceable against
it.
ARTICLE III
The
obligations of the Lenders (including the Swingline Lender) to make
Loans and the obligation of the Issuing Bank to issue any Letters
of Credit hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in
accordance with Section
10.2):
(a) The Administrative
Agent (for itself and, in the case of upfront fees, for the benefit
of the Lenders) shall have received payment of all fees, expenses
and other amounts due and payable on or prior to the Closing Date,
including reimbursement or payment of all out-of-pocket expenses of
the Administrative Agent, the Lead Arranger and their Affiliates
(including reasonable fees, charges and disbursements of counsels
to the Administrative Agent) required to be reimbursed or paid by
the Borrowers hereunder, under any other Loan Document and under
any agreement with the Administrative Agent or the Lead
Arranger.
(b) The Administrative
Agent (or its counsels) shall have received the following, each to
be in form and substance satisfactory to the Administrative
Agent:
(i) a counterpart of
this Agreement signed by or on behalf of each party hereto or
written evidence satisfactory to the Administrative Agent (which
may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this
Agreement;
(ii) a
certificate of the Secretary or Assistant Secretary of each Loan
Party, in the form of Exhibit 3.1(b)(ii) attaching
and certifying copies of its bylaws, partnership agreement or
limited liability company agreement, and of the resolutions of its
board of directors or other equivalent governing body, or
comparable organizational documents and authorizations, authorizing
the execution, delivery and performance of the Loan Documents to
which it is a party and certifying the name, title and true
signature of each officer of such Loan Party executing the Loan
Documents to which it is a party;
(iii) certified
copies of the articles or certificate of incorporation, certificate
of organization or limited partnership, or other registered
organizational documents of each Loan Party, together with
certificates of good standing or existence, as may be available
from the Secretary of State of the jurisdiction of organization of
such Loan Party and each other jurisdiction where such Loan Party
is required to be qualified to do business as a foreign
corporation;
(iv) a
favorable written opinion of Nelson Mullins Riley & Scarborough
LLP, counsel to the Loan Parties, addressed to the Administrative
Agent, the Issuing Bank and each of the Lenders, and covering such
matters relating to the Loan Parties, the Loan Documents and the
transactions contemplated therein as the Administrative Agent shall
reasonably request (which opinions will expressly permit reliance
by permitted successors and assigns of the Administrative Agent,
the Issuing Bank and the Lenders);
(v) a certificate in
the form of Exhibit
3.1(b)(v), dated the Closing Date and signed by a
Responsible Officer, certifying that after giving effect to the
funding of the Term Loans and any initial Revolving Borrowing, (x)
no Default or Event of Default exists, (y) all representations and
warranties of each Loan Party set forth in the Loan Documents are
true and correct in all material respects and (z) since the date of
the financial statements of the Borrowers and their Subsidiaries
and the Targets and their Subsidiaries described in Section 4.4, there shall have
been no change which has had or could reasonably be expected to
have a Material Adverse Effect;
(vi) a
duly executed Notice of Borrowing for any initial Revolving
Borrowing or, in the case of any Letter of Credit to be issued on
the Closing Date, the written notice requesting such Letter of
Credit required in accordance with Section 2.24(b);
(vii) a
duly executed funds disbursement agreement, together with a report
setting forth the sources and uses of the proceeds
hereof;
(viii) certified
copies of all consents, approvals, authorizations, registrations
filings and orders required or advisable to be made or obtained
under any Requirement of Law, or by any Contractual Obligation of
any Loan Party, the Sellers or the Targets, in connection with
the execution, delivery, performance, validity and enforceability
of the Loan Documents and the Related Transaction Documents or any
of the transactions contemplated thereby, and such consents,
approvals, authorizations, registrations and filings and orders
shall be in full force and effect and all applicable waiting
periods shall have expired, and no investigation or inquiry by any
Governmental Authority regarding the Commitments or any transaction
being financed with the proceeds thereof shall be
ongoing;
(ix) copies
of (A) the internally prepared quarterly financial statements of
the Borrowers and their Subsidiaries and the Targets and their
Subsidiaries on a consolidated basis for the Fiscal Quarter ended
December 31, 2020, (B) the audited consolidated financial
statements for the Borrowers and their Subsidiaries for the Fiscal
Years ended December 31, 2018, December 31, 2019 and December 31,
2020 (or, if audited financial statements for the Fiscal Year ended
December 31, 2020 are unavailable, consolidated unaudited financial
statements, in each case, including balance sheets, income
statements and cash flow statements, and (C) financial
projections on a monthly basis for the Fiscal Years ending December
31, 2021 through December 31, 2026;
(x) [Reserved];
(xi) a
certificate, dated the Closing Date and signed by the chief
financial officer of each Loan Party, confirming that each Loan
Party is Solvent before and after giving effect to the funding of
the Term Loan and any initial Revolving Borrowing and the
consummation of the transactions contemplated to occur on the
Closing Date;
(xii) the
Security Agreement, duly executed by Holdings, each other Borrower
and each other Loan Party, together with (A) UCC financing
statements and other applicable documents under the laws of all
necessary or appropriate jurisdictions with respect to the
perfection of the Liens granted under the Security Agreement, as
requested by the Administrative Agent in order to perfect such
Liens, duly authorized by the Loan Parties, (B) copies of
favorable UCC, tax, judgment and fixture lien search reports in all
necessary or appropriate jurisdictions and under all legal and
trade names of the Loan Parties, the Targets and their
Subsidiaries, as requested by the Administrative Agent, indicating
that there are no prior Liens on any of the Collateral other than
Permitted Liens and Liens to be released on the Closing Date, (C)
an Information Certificate, duly completed and executed by the Loan
Parties, (D) a duly
executed Intellectual
Property Security Agreement, (E) original certificates evidencing
all issued and outstanding shares of Capital Stock of all
Subsidiaries owned directly by any Loan Party (or, if the pledge of
all of the voting Capital Stock of any Foreign Subsidiary would
result in materially adverse tax consequences, limited to 65% of
the issued and outstanding voting Capital Stock of such Foreign
Subsidiary and 100% of the issued and outstanding non-voting
Capital Stock of such Foreign Subsidiary, as applicable) and (F)
stock or membership interest powers or other appropriate
instruments of transfer executed in blank;
(xiii) [Reserved];
(xiv) Real
Estate Documents, with respect to all Real Estate owned by the Loan
Parties;
(xv) a
Certificate Regarding Office Project, with true, correct and
complete copies of the following documents attached (A) the Plans
and Specifications for the Office Project, (B) the Operating Budget
for the Office Project, (C) the Office Project Contracts, and (D)
copies of all permits required for the completion of the Office
Project;
(xvi) a
duly executed Collateral Assignment of Office Project Contracts,
Plans and Specifications and Permits;
(xvii) [Reserved];
(xviii) copies
of duly executed payoff letters, in form and substance satisfactory
to the Administrative Agent, executed by Existing Lender or the
administrative agent thereof, together with (A) UCC-3 or other appropriate
termination statements, in form and substance satisfactory to the
Administrative Agent, releasing all liens of the Existing Lender
upon any of the personal property of each Loan Party and its
Subsidiaries (B) cancellations and
releases, in form and substance satisfactory to the Administrative
Agent, releasing all liens of the Existing Lenders upon any of the
real property of Loan Parties and their Subsidiaries, and (C) any
other releases, terminations or other documents reasonably required
by the Administrative Agent to evidence the payoff of Indebtedness
owed to the Existing Lender;
(xix) a
duly completed and executed Borrowing Base Certificate prepared as
of February 28, 2021, which shall reflect that, upon giving effect
to the initial funding of the Tranche A Revolving Loans and
issuance of Letters of Credit, and the payment by Borrowers of all
fees and expenses incurred in connection herewith, Excess
Availability is not less than the greater of (A) $7,500,000 and (B)
the lesser of 20% of the Borrowing Base and the Aggregate Revolving
Commitments;
(xx) [Reserved];
(xxi) certificates
of insurance, in form and detail acceptable to the Administrative
Agent, describing the types and amounts of insurance (property and
liability) maintained by any of the Loan Parties, in each case
naming the Administrative Agent as lender’s loss payee,
additional insured or mortgagee, as the case may be, together with
lender’s loss payable, additional insured and mortgagee
endorsements in form and substance satisfactory to the
Administrative Agent;
(xxii) at
least five (5) days prior to the date of this Agreement, all
documentation and other information required by bank regulatory
authorities or reasonably requested by the Administrative Agent or
any Lender under or in respect of applicable “know your
customer” and anti-money laundering Requirements of Law
including the Patriot Act and, if any Loan Party qualifies as a
“legal entity customer” under the Beneficial Ownership
Regulation, a Beneficial Ownership Certification in relation to
such Loan Party;
(xxiii) the
Collateral Assignments, duly executed by the Loan Parties, together
with the consent of the Sellers thereto; and
(xxiv) such other
documents, certificates, information or legal opinions as the
Administrative Agent or Required Lenders may reasonably request,
all in form and substance satisfactory to the Administrative Agent
or such Required Lenders.
(c) The Administrative
Agent (or its counsel) shall have received certified copies of the
March 2021 Acquisition Documents.
(d) The Loan Parties
shall have completed all procedures necessary to establish treasury
management services with Truist Bank in form and substance
reasonably satisfactory to the Administrative Agent and shall have
established the Collateral Reserve Account for the
Borrowers.
(e) The Administrative
Agent shall have completed all business and legal due diligence
reasonably required by the Administrative Agent, including (i)
completion of an initial field examination of all Accounts of the
Borrowers by an auditor selected by, or acceptable to, the
Administrative Agent and the Lead Arranger and a Qualified
Appraisal and environmental review of all Real Estate of the
Borrowers, the results of each of which shall be in form and
substance reasonably satisfactory to the Administrative Agent and
the Lead Arranger; and (ii) the Administrative Agent’s
satisfactory review of the capital structure of the Loan
Parties.
Without limiting
the generality of the provisions of this Section 3.1, for purposes of
determining compliance with the conditions specified in this
Section 3.1, each
Lender that has signed this Credit Agreement shall be deemed to
have consented to, approved of, accepted or been satisfied with
each document or other matter required thereunder to be consented
to, approved by or acceptable or satisfactory to a Lender unless
the Administrative Agent shall have received notice from such
Lender prior to the proposed Closing Date specifying its objection
thereto.
The
obligation of each Lender to make a Loan on the occasion of any
Borrowing and of the Issuing Bank to issue, amend, renew or extend
any Letter of Credit is subject to Section 2.28(c) and the
satisfaction of the following conditions:
(a) at the time of and
immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as
applicable, no Default or Event of Default shall
exist;
(b) at the time of and
immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as
applicable, all representations and warranties of each Loan Party
set forth in the Loan Documents shall be true and correct in all
material respects (other than those representations and warranties
that are expressly qualified by a Material Adverse Effect or other
materiality, in which case such representations and warranties
shall be true and correct in all respects);
(c) since December 31,
2019, there shall have been no change which has had or could
reasonably be expected to have a Material Adverse
Effect;
(d) the Borrower
Representative shall have delivered the required Notice of
Borrowing or, in the case of the issuance, amendment, renewal or
extension of any Letters of Credit, the required written notice
requesting such Letter of Credit required in accordance with
Section
2.24(b);
(e) the most recent
Borrowing Base Certificate which shall have been duly completed,
executed and delivered to the Administrative Agent pursuant to
Section 5.1(h)
shall demonstrate that, after giving effect to such Borrowing or
the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Overadvance shall exist; and
(f) the Administrative
Agent shall have received such other documents, certificates,
information or legal opinions as the Administrative Agent or the
Required Lenders may reasonably request, all in form and substance
reasonably satisfactory to the Administrative Agent or the Required
Lenders.
Each
Borrowing and each issuance, amendment, renewal or extension of any
Letter of Credit shall be deemed to constitute a representation and
warranty by the Borrowers on the date thereof as to the matters
specified in Sections
3.2(a), 3.2(b), 3.2(c) and 3.2(e).
All of
the Loan Documents, certificates, legal opinions and other
documents and papers referred to in this Article III, unless otherwise
specified, shall be delivered to the Administrative Agent for the
account of each of the Lenders and in sufficient counterparts or
copies for each of the Lenders and shall be in form and substance
satisfactory in all respects to the Administrative
Agent.
ARTICLE IV
The
Borrowers, jointly and severally, represent and warrant, on behalf
of themselves and the other Loan Parties, both before and after
giving effect to the transactions under this Agreement and the
Related Transactions, to the Administrative Agent, each Lender and
the Issuing Bank as follows:
. Each
Loan Party and each of its Subsidiaries (i) is duly organized,
validly existing and in good standing as a corporation, partnership
or limited liability company under the laws of the jurisdiction of
its organization, (ii) has all requisite power and authority to
carry on its business as now conducted, and (iii) is duly
qualified to do business, and is in good standing, in each
jurisdiction where such qualification is required, except where a
failure to be so qualified could not reasonably be expected to
result in a Material Adverse Effect.
. The
execution, delivery and performance by each Loan Party of the Loan
Documents and the Related Transaction Documents to which it is a
party are within such Loan Party’s organizational powers and
have been duly authorized by all necessary organizational and, if
required, shareholder, partner or member action. This Agreement has
been duly executed and delivered by each Borrower and constitutes,
and each other Loan Document and Related Transaction Document to
which any Loan Party is a party, when executed and delivered by
such Loan Party, will constitute, valid and binding obligations of
such Borrower or such Loan Party (as the case may be), enforceable
against it in accordance with their respective terms, except as may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general principles of
equity.
. The
execution, delivery and performance by each Loan Party of the Loan
Documents and the Related Transaction Documents to which it is a
party (i) do not require any consent or approval of, registration
or filing with, or any action by, any Governmental Authority,
except those as have been obtained or made and are in full force
and effect and except for filings necessary to perfect or maintain
perfection of the Liens created under the Loan Documents, (ii) will
not violate any Requirement of Law applicable to any Loan Party or
any of its Subsidiaries or any judgment, order or ruling of any
Governmental Authority, (iii) will not violate or result in a
default under any Contractual Obligation of any Loan Party or any
of its Subsidiaries or any of its assets or give rise to a right
thereunder to require any payment to be made by any Loan Party or
any of its Subsidiaries and (iv) will not result in the creation or
imposition of any Lien on any asset of any Loan Party or any of its
Subsidiaries, except Liens created under the Loan
Documents.
. The
Borrowers have furnished to each Lender (i) the audited
consolidated balance sheet of the Borrowers and their Subsidiaries
as of December 31, 2018, December 31, 2019, and December 31, 2020
and the related audited consolidated statements of income,
shareholders’ equity and cash flows for the Fiscal Year then
ended, the audited consolidated balance sheet of the Targets and
their Subsidiaries as of December 31, 2018 and December 31, 2019
(and consolidated balance sheets for the Fiscal Quarter ended in
September 2020) and the related consolidated statements of income,
shareholders’ equity and cash flows for the Fiscal Years then
ended (or, in the case of 2020, the unaudited consolidated
statements of income, shareholders’ equity, and cash flows
for the Fiscal Quarter and three Fiscal Quarters ended in September
2020) prepared by the applicable accountants named therein (or, in
the case of such unaudited financial statements, a Responsible
Officer of the Loan Parties or an employee of the Targets), (ii)
the unaudited consolidated balance sheet of the Borrowers and
their Subsidiaries and the Targets and their Subsidiaries as of
February 28, 2021, and the related unaudited
consolidated statements
of income and cash flows for the Fiscal Month then ended, certified
by a Responsible Officer and (iii) financial projections as of the
last day of each Fiscal Month for the Fiscal
Years ending December 31, 2021 through December 31, 2026. Such
financial statements fairly present in all material respects the
consolidated financial condition of the Borrowers and their
Subsidiaries and the Targets and their Subsidiaries as of such
dates and the consolidated results of operations for such periods
in conformity with GAAP consistently applied, subject to year-end
audit adjustments and the absence of footnotes in the case of the
statements referred to in clause (ii). Since December 31, 2019,
there have been no changes with respect to the Borrowers and their
Subsidiaries and the Targets and their Subsidiaries which have had
or could reasonably be
expected to have, either individually or in the aggregate, a
Material Adverse Effect.
(a) No litigation,
investigation, claim or proceeding of or before any arbitrators or
Governmental Authorities is pending against or, to the knowledge of
any Borrower, threatened against or affecting any Loan Party or any
of its Subsidiaries (i) as to which there is a reasonable
possibility of an adverse determination that could reasonably be
expected to have, either individually or in the aggregate, a
Material Adverse Effect or (ii) which in any manner draws into
question the validity or enforceability of this Agreement, any
other Loan Document or Related Transaction Document.
(b) No Loan Party or
any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has
received notice of any claim with respect to any Environmental
Liability or (iv) knows of any basis for any Environmental
Liability.
. Each Loan Party and each of its
Subsidiaries is in compliance with (a) all Requirements of Law and
all judgments, decrees and orders of any Governmental Authority and
(b) all indentures, agreements and other instruments binding upon
it or its properties, except where non-compliance, either
individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect.
No Loan
Party or any of its Subsidiaries is (a) an “investment
company” or is “controlled” by an
“investment company”, as such terms are defined in, or
subject to regulation under, the Investment Company Act of 1940, as
amended and in effect from time to time, or (b) otherwise subject
to any other regulatory scheme limiting its ability to incur debt
or requiring any approval or consent from, or registration or
filing with, any Governmental Authority in connection
therewith.
. Each
Loan Party, each of its Subsidiaries and each other Person for
whose taxes any Loan Party or any of its Subsidiaries could become
liable have timely filed or caused to be filed all Federal income
tax returns and all other material tax returns that are required to
be filed by it, and have paid all taxes shown to be due and payable
on such returns or on any assessments made against it or its
property and all other taxes, fees or other charges imposed on it
or any of its property by any Governmental Authority, except where
the same are currently being Properly Contested. The charges,
accruals and reserves on the books of each Loan Party and each of
its Subsidiaries in respect of such taxes are adequate, and no tax
liabilities that could be materially in excess of the amount so
provided are anticipated. No Loan Party or any of its Subsidiaries
has any obligation to pay or has any liability with respect to the
Seller’s or any of its Affiliates’ tax liability other
than as expressly provided in the Related Transaction
Documents.
. None
of the proceeds of any of the Loans or Letters of Credit will be
used, directly or indirectly, for “purchasing” or
“carrying” any “margin stock” within the
respective meanings of each of such terms under Regulation U or for
any purpose that violates the provisions of Regulation T,
Regulation U or Regulation X. No Loan Party nor any of its
Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of
purchasing or carrying “margin stock”.
. Each
Plan is in substantial compliance in form and operation with its
terms and with ERISA and the Code (including the Code provisions
compliance with which is necessary for any intended favorable tax
treatment) and all other applicable laws and regulations. Each Plan
(and each related trust, if any) which is intended to be qualified
under Section 401(a) of the Code has received a favorable
determination letter from the Internal Revenue Service to the
effect that it meets the requirements of Sections 401(a) and 501(a)
of the Code covering all applicable tax law changes, or is
comprised of a master or prototype plan that has received a
favorable opinion letter from the Internal Revenue Service, and
nothing has occurred since the date of such determination that
would adversely affect such determination (or, in the case of a
Plan with no determination, nothing has occurred that would
adversely affect the issuance of a favorable determination letter
or otherwise adversely affect such qualification). No ERISA Event
has occurred or is reasonably expected to occur. There exists no
Unfunded Pension Liability with respect to any Plan. Except as set
forth on Schedule
4.10, no Loan Party, any of its Subsidiaries or any ERISA
Affiliate is making or accruing an obligation to make
contributions, or has, within any of the five calendar years
immediately preceding the date this assurance is given or deemed
given, made or accrued an obligation to make, contributions to any
Multiemployer Plan. There are no actions, suits or claims pending
against or involving a Plan (other than routine claims for
benefits) or, to the knowledge of any Loan Party, any of its
Subsidiaries or any ERISA Affiliate, threatened, which would
reasonably be expected to be asserted successfully against any Plan
and, if so asserted successfully, would reasonably be expected
either singly or in the aggregate to result in liability to any
Loan Party or any of its Subsidiaries or any ERISA Affiliate. Each
Loan Party, each of its Subsidiaries and each ERISA Affiliate have
made all contributions to or under each Plan and Multiemployer Plan
required by law within the applicable time limits prescribed
thereby, by the terms of such Plan or Multiemployer Plan,
respectively, or by any contract or agreement requiring
contributions to a Plan or Multiemployer Plan. No Plan which is
subject to Section 412 of the Code or Section 302 of ERISA has
applied for or received an extension of any amortization period
within the meaning of Section 412 of the Code or Section 303 or 304
of ERISA. No Loan Party, any of its Subsidiaries or any ERISA
Affiliate has ceased operations at a facility so as to become
subject to the provisions of Section 4068(a) of ERISA, withdrawn as
a substantial employer so as to become subject to the provisions of
Section 4063 of ERISA or ceased making contributions to any Plan
subject to Section 4064(a) of ERISA to which it made contributions.
Each Non-U.S. Plan has been maintained in material compliance with
its terms and with the requirements of any and all applicable laws,
statutes, rules, regulations and orders and has been maintained,
where required, in good standing with applicable regulatory
authorities, except as would not reasonably be expected to result
in liability to any Loan Party or any of its Subsidiaries. No Loan
Party sponsors, has ever sponsored, or has ever been a party to any
Non-U.S. Plan.
(a) Each Loan Party and
its Subsidiaries has good title to, or valid leasehold interests
in, all of the real and personal property material to the operation
of its business including all such properties reflected in the most
recent audited consolidated balance sheet of Borrowers and their
Subsidiaries referred to in Section 4.4 or purported to
have been acquired by the Loan Parties and its Subsidiaries after
said date (except as sold or otherwise disposed of in the ordinary
course of business, as set forth on Schedule 4.11(a) or as
permitted by Section
7.6), in each case free and clear of Liens prohibited by
this Agreement. All leases that individually or in the aggregate
are material to the business or operations of any Loan Party and
its Subsidiaries are valid and subsisting and are in full
force.
(b) Each Loan Party and
its Subsidiaries owns, or is licensed or otherwise has the right to
use, all patents, trademarks, service marks, trade names,
copyrights and other intellectual property material to the business
of such Loan Party and its Subsidiaries, and the use thereof by
such Loan Party and its Subsidiaries does not infringe in any
material respect on the rights of any other Person.
(c) The properties of
each Loan Party and its Subsidiaries are insured with financially
sound and reputable insurance companies which are not Affiliates of
such Loan Party, in such amounts with such deductibles and covering
such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities
where such Loan Party or any Subsidiary operates.
(d) Schedule 4.11(d) lists all Real
Estate owned by each Loan Party as of the Closing Date, and such
Schedule identifies the fair market value of such Real Estate as of
the Closing Date.
. (a)
The Borrowers have disclosed to the Lenders all agreements,
instruments, and corporate or other restrictions to which any Loan
Party or any of its Subsidiaries is subject, and all other matters
known to any of them, that, either individually or in the
aggregate, could reasonably be expected to result in a Material
Adverse Effect. Neither the Information Memorandum, if any, nor any
of the reports (including all reports that each Loan Party is
required to file with the Securities and Exchange Commission),
financial statements, certificates or other information furnished
by or on behalf of the Loan Parties to the Administrative Agent or
any Lender in connection with the negotiation or syndication of
this Agreement or any other Loan Document or delivered hereunder or
thereunder (as modified or supplemented by any other information so
furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein,
taken as a whole in light of the circumstances under which they
were made, not misleading; provided that, with respect to
projected financial information, the Borrowers represent only that
such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.
(b) As
of the Closing Date, the information included in the Beneficial
Ownership Certification is true and correct in all
respects.
. There
are no strikes, lockouts or other material labor disputes or
grievances against any Loan Party or any of its Subsidiaries, or,
to any Loan Party’s knowledge, threatened against or
affecting any Loan Party or any of its Subsidiaries, and no
significant unfair labor practice charges or grievances are pending
against any Loan Party or any of its Subsidiaries, or, to any Loan
Party’s knowledge, threatened against any of them before any
Governmental Authority. All payments due from any Loan Party or any
of its Subsidiaries pursuant to the provisions of any collective
bargaining agreement have been paid or accrued as a liability on
the books of such Loan Party or such Subsidiary, except where the
failure to do so could not reasonably be expected to have a
Material Adverse Effect. None of the Loan Parties or any of the
respective Subsidiaries are a party to any collective bargaining
agreement or is in negotiations with any union employees regarding
any collective bargaining agreement as of the Closing
Date.
.
Schedule 4.14 sets
forth the name of, the ownership interest of the applicable Loan
Party in, the jurisdiction of incorporation or organization of, and
the type of each Subsidiary of the Borrowers and the other Loan
Parties and identifies each Subsidiary that is a Loan Party, in
each case as of the Closing Date.
. After
giving effect to the execution and delivery of the Loan Documents
and the Related Transaction Documents, the making of the Loans
under this Agreement and the consummation of the Related Transactions, each Loan
Party is Solvent.
.
Schedule 4.16 lists
all banks and other financial institutions at which any Loan Party
maintains deposit accounts, lockbox accounts, disbursement
accounts, securities accounts, investment accounts or other similar
accounts as of the Closing Date, and such Schedule correctly
identifies the name, address and telephone number of each financial
institution, the name in which the account is held, the type of the
account (and, if applicable, whether the account is a lockbox
account), and the complete account number therefor.
(a) All Liens of the
Administrative Agent in the Collateral are duly perfected, first
priority Liens, subject only to Permitted Liens that are expressly
allowed to have priority over the Administrative Agent's
Liens.
(b) No Mortgage
encumbers improved real property that is located in an area that
has been identified by the Secretary of Housing and Urban
Development as an area having special flood hazards and in which
flood insurance has been made available under the National Flood
Insurance Act of 1968 except to the extent that the applicable Loan
Party maintains flood insurance with respect to such improved real
property in compliance with the requirements of Section 5.8.
. As of the Closing Date, all
Material Agreements of the Loan Parties and their Subsidiaries are
described on Schedule
4.19, and each such Material Agreement is in full force and
effect. No Loan Party has any knowledge of any pending amendments
or threatened termination of any of the Material Agreements. As of
the Closing Date, the Loan Parties have delivered to the
Administrative Agent a true, complete and correct copy of each
Material Agreement (including all schedules, exhibits, amendments,
supplements, modifications, assignments and all other documents
delivered pursuant thereto or in connection
therewith).
(a) No
Loan Party nor any of its Subsidiaries or any of their respective
directors, officers, employees, agents or affiliates is a
Sanctioned Person.
(b) Loan
Parties, their Subsidiaries and their respective directors,
officers and employees and, to the knowledge of the Loan Parties,
the agents of the Loan Parties and their Subsidiaries, are in
compliance with applicable Anti-Corruption Laws and applicable
Sanctions. The Loan Parties and their Subsidiaries have instituted
and maintain policies and procedures designed to ensure continued
compliance with applicable Sanctions and Anti-Corruption
Laws.
With
respect to all Accounts of each Loan Party, such Loan Party hereby
warrants and represents to the Administrative Agent that such
Accounts are bona fide existing payment obligations of Account
Debtors created by the rendition of services to such Account
Debtors in the ordinary course of such Loan Party’s business.
As to each Account that was included by any Borrower as an Eligible
Account in the most recent Borrowing Base Certificate submitted to
the Administrative Agent by the Borrower Representative, such
Account was not ineligible by virtue of one or more of the
applicable criteria set forth in the definition of “Eligible
Accounts” as of the date of such Borrowing Base
Certificate.
Each
Loan Party and its Subsidiaries owns or has the lawful right to use
all Intellectual Property necessary for the conduct of its
business, without conflict with any rights of others. Except as
disclosed on Schedule
4.22, there is no pending or, to any Loan Party's knowledge,
threatened Intellectual Property Claim with respect to any Loan
Party, any of its Subsidiaries or any of their property (including
any Intellectual Property). Except as disclosed on Schedule 4.22, no Loan Party or
any of its Subsidiaries pays or owes any royalty or other
compensation to any Person with respect to any Intellectual
Property other than license fees for off-the-shelf software payable
in the ordinary course of business. All Intellectual Property
(other than off-the-shelf software licensed in the ordinary course
of business) owned, used or licensed by, or otherwise subject to
any interests of, any Loan Party or any of its Subsidiaries is
shown on Schedule
4.22.
No
Loan Party, nor any of its Subsidiaries, has permitted any work at
the Office Project Premises or the delivery of any materials to the
Office Project Premises, in each case, which could give rise to a
Lien on the Office Project Premises or the Office Project
Improvements that is not a Permitted Lien. The Office Project
Premises are zoned to permit the construction and operation of the
Office Project Improvements for the intended purpose, and Loan
Parties have all zoning approvals necessary for construction and
operation of the Office Project. The Contractor is licensed to
conduct business in the State where the Office Project is
located.
No Loan
Party, nor any of its Subsidiaries, nor any director,
officer, employee, agent, affiliate or representative thereof, is
or is owned or controlled by any individual or entity that is
currently the target of any Sanction or is located, organized or
resident in a Sanctioned Country. Each Loan Party and its
Subsidiaries has conducted its business in compliance with all
applicable Anti-Corruption Laws.
No Loan Party nor any of its
Subsidiaries is an Affected Financial Institution.
Subject
to Section 5.16(a),
(a) all Franchise Agreements with franchisees of Borrowers contain
a provision substantially in the form of Exhibit F or, with respect to
franchise agreements acquired from Snelling Staffing Sellers,
contain a comparable grant of security in the form in existence on
the date of the acquisition thereof, in each case, or otherwise in
form and substance satisfactory to Administrative Agent in its
Permitted Discretion, (b) all agreements and invoices with Account
Debtors require payments to be made directly to the Collateral
Reserve Account or a lockbox associated therewith; provided that,
until June 30, 2021 (or such later date as extended in writing by
Administrative Agent in its discretion), such payments made by
Account Debtors of HQ Snelling may be made to the account ending
2461 at Seacoast Bank in accordance with Section 5.11(b), and (c) the
applicable Borrower party to each Franchise Agreement has filed,
and maintains, in the location of such franchisee, a UCC-1
financing statement naming the applicable franchisee party to such
Franchise Agreement, as debtor, and such Borrower, as secured
party, and describing the collateral therein consistent with the
grant of security set forth in the applicable Franchise Agreement
as described in clause (a) above and, unless the Accounts sourced
by any such franchisee are excluded from the Borrowing Base at all
times on and after the later of the Closing Date or the date of
such grant of security, the security interest of Borrower in such
assets is a first-priority security interest, free and clear of all
Liens other than Liens permitted under Section 5.15. The name, address
and state of formation or incorporation of each franchisee is
listed on Schedule
4.26, the renewal date for the Franchise Agreement to which
such franchisee is a party is listed on Schedule 4.26 and the status of
compliance with Section
5.15 or Section
5.16(a)(i), as applicable, is included on such Schedule.
ARTICLE V
The
Borrowers, on behalf of themselves and the other Loan Parties,
covenant and agree with the Administrative Agent and the Lenders
that, until Payment in Full of the Obligations:
. The
Borrower Representative will deliver to the Administrative Agent
and each Lender:
(a) as soon as
available and in any event within 90 days after the end of each
Fiscal Year of the Loan Parties, a copy of the annual audited
report for such Fiscal Year for the Loan Parties and their
Subsidiaries, containing a consolidated balance sheet of the Loan
Parties and their Subsidiaries as of the end of such Fiscal Year
and the related consolidated statements of income,
stockholders’ equity and cash flows (together with all
footnotes thereto) of the Loan Parties and their Subsidiaries for
such Fiscal Year, setting forth in each case in comparative form
the figures for the previous Fiscal Year, all in reasonable detail
and reported on by the applicable accountants named therein or
other independent public accountants of nationally recognized
standing, or Plante & Moran, PLLC, (without a “going
concern” or like qualification, exception or explanation and
without any qualification or exception as to the scope of such
audit) to the effect that such financial statements present fairly
in all material respects the financial condition and the results of
operations of the Loan Parties and their Subsidiaries for such
Fiscal Year on a consolidated basis in accordance with GAAP and
that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with
generally accepted auditing standards
(b) as soon as
available and in any event within 45 days after the end of each
Fiscal Quarter of the Loan Parties, an unaudited consolidated
balance sheet of the Loan Parties and their Subsidiaries as of the
end of such Fiscal Quarter and the related unaudited consolidated
statements of income and cash flows of the Loan Parties and their
Subsidiaries for such Fiscal Quarter and the then elapsed portion
of such Fiscal Year, setting forth in each case in comparative form
the figures for the corresponding Fiscal Quarter and the
corresponding portion of the Loan Parties’ previous Fiscal
Year and the corresponding figures for the budget for the current
Fiscal Year;
(c) as soon as
available and in any event within 30 days after the end of
each Fiscal Month
of the Loan
Parties (other than any
Fiscal Month ending concurrently with the end of any Fiscal
Quarter), an unaudited consolidated balance sheet of the Loan
Parties and their Subsidiaries as of the end of such Fiscal Month
and the related unaudited consolidated statements of income and
cash flows of the Loan Parties and their Subsidiaries for such
Fiscal Month and the then elapsed portion of such Fiscal Year,
setting forth in each case in comparative form the figures for the
corresponding Fiscal Month and the corresponding portion of the
Loan Parties’ previous Fiscal Year and the corresponding
figures for the budget for the current Fiscal Year;
(d) concurrently with
the delivery of the financial statements referred to in
Sections
5.1(a), 5.1(b) and 5.1(c) (other than the
financial statements for the fourth Fiscal Quarter or the last
Fiscal Month of each Fiscal Year delivered pursuant to subsection
(b) or (c) of this Section), a Compliance Certificate signed by the
chief executive officer or the chief financial officer of the
Borrower Representative (i) certifying as to whether there exists
any Default or Event of Default on the date of such certificate
and, if a Default or an Event of Default then exists, specifying
the details thereof and the action which the Loan Parties have
taken or propose to take with respect thereto, (ii) setting forth
in reasonable detail calculations demonstrating compliance with the
financial covenants set forth in Article VI, (iii) specifying
any change in the identity of the Subsidiaries as of the end of
such Fiscal Year, Fiscal Quarter or Fiscal Month
from the Subsidiaries identified to the Lenders on the Closing Date
or as of the most recent Fiscal Year, Fiscal Quarter or Fiscal Month, as
the case may be, and (iv) stating whether any change in GAAP or the
application thereof has occurred since the date of the mostly
recently delivered audited financial statements of the Loan Parties
and their Subsidiaries, and, if any change has occurred, specifying
the effect of such change on the financial statements accompanying
such Compliance Certificate;
(e) concurrently
with the delivery of the financial statements referred to in
Section
5.1(a), a
certificate of the accounting firm that reported on such financial
statements stating whether they obtained any knowledge during the
course of their examination of such financial statements of any
Default or Event of Default (which certificate may be limited to
the extent required by accounting rules or
guidelines);
(f) as soon as
available and in any event within 30 days after the end of each
calendar year, forecasts and a pro forma budget for the succeeding
Fiscal Year, containing an income statement, balance sheet and
statement of cash flow;
(g) promptly after the
same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed with the
Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all functions of said Commission, or with any
national securities exchange, or distributed by Holdings to its
shareholders generally, as the case may be;
(h) on the Closing Date
and within fifteen (15) Business Days after the end of each Fiscal
Month after the Closing Date, a Borrowing Base Certificate as of
the last day of the preceding Fiscal Month, which shall be in form
and substance satisfactory to the Administrative Agent, setting
forth a categorical breakdown of all Accounts of each Borrower and
a calculation of Eligible Accounts as of such last day of the
preceding Fiscal Month; provided that, during any
Reporting Trigger Period, the Borrower Representative shall instead
provide the Borrowing Base Certificates and other information
required by this Section
5.1(h) on a weekly basis, no later than two (2) Business
Days after the end of each fiscal week as of the last day of such
week then ended (and, after the end of any Reporting Trigger
Period, the Borrower Representative shall resume providing the
Borrowing Base Certificates and other information required by this
Section 5.1(h) on a
monthly basis in accordance with the terms hereof);
(i) with each Borrowing
Base Certificate, (A) a report of sales, collections, debit and
credit adjustments and (B) a detailed aged trial balance of all
Accounts of each Borrower existing as of the last day of the
preceding Fiscal Month, specifying the names and face value for
each Account Debtor obligated on an Account of such Borrower so
listed and all other information necessary to calculate Eligible
Accounts as of such last day of the preceding Fiscal
Month or such other
date reasonably required by the Administrative Agent; provided that, during any
Reporting Trigger Period, the Borrower Representative shall instead
provide such reports and other information required by this
Section 5.1(i) on a
weekly basis, no later than two (2) Business Days after the end of
each fiscal week as of the last day of the week then ended (and,
after any Reporting Trigger Period, the Borrower Representative
shall resume providing such reports and other information required
by this Section
5.1(i) on a monthly basis in accordance with the terms
hereof);
(j) upon request by the
Administrative Agent, (A) lockbox, bank and investment account
statements and (B) copies of proof of delivery and the original
copy of all documents, including repayment histories and present
status reports, relating to the Accounts of each Borrower so
scheduled and such other matters and information relating to the
status of then existing Accounts of each Borrower as the
Administrative Agent shall reasonably request; and
(k) promptly following
any request therefor, (i) such other information regarding the
results of operations, business affairs and financial condition of
the Loan Parties or any of their Subsidiaries as the Administrative
Agent or any Lender may reasonably request and (ii) information and
documentation reasonably requested by the Administrative Agent or
any Lender for purposes of compliance with applicable “know
your customer” requirements under the PATRIOT Act or other
applicable anti-money laundering laws.
So long
as the Loan Parties are required to file periodic reports under
Section 13(a) or Section 15(d) of the Exchange Act, the Loan
Parties may satisfy their obligations to deliver the financial
statements referred to in Sections 5.1(a) and
5.1(b) by
delivering such financial statements by electronic mail to such
e-mail addresses as the Administrative Agent and the Lenders shall
have provided to the Borrower Representative from time to
time.
.
(a) The
Borrowers will furnish to the Administrative Agent and each Lender
prompt written notice of the following:
(i) the
occurrence of any Default or Event of Default;
(ii) the
filing or commencement of, or any material development in, any
action, suit or proceeding by or before any arbitrator or
Governmental Authority against or, to the knowledge of any Loan
Party, affecting any Loan Party or any of its Subsidiaries which,
if adversely determined, could reasonably be expected to result in
a Material Adverse Effect;
(iii) the
occurrence of any event or any other development by which any Loan
Party or any of its Subsidiaries (i) fails to comply with any
Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law,
(ii) becomes subject to any Environmental Liability, (iii) receives
notice of any claim with respect to any Environmental Liability, or
(iv) becomes aware of any basis for any Environmental Liability, in
each case which, either individually or in the aggregate, could
reasonably be expected to result in a Material Adverse
Effect;
(iv) promptly
and in any event within fifteen (15) days after (i) any Loan Party,
any of its Subsidiaries or any ERISA Affiliate knows that any ERISA
Event has occurred, a certificate of the chief financial officer of
the Borrower Representative describing such ERISA Event and the
action, if any, proposed to be taken with respect to such ERISA
Event and a copy of any notice filed with the PBGC or the IRS
pertaining to such ERISA Event and any notices received by such
Loan Party, such Subsidiary or such ERISA Affiliate from the PBGC
or any other governmental agency with respect thereto, or (ii) any
Loan Party, any Subsidiary or any ERISA Affiliate becomes aware (1)
that there has been an increase in Unfunded Pension Liabilities
(not taking into account Plans with negative Unfunded Pension
Liabilities) since the date the representations hereunder are given
or deemed given, or from any prior notice, as applicable, (2) of
the existence of any Withdrawal Liability, (3) of the adoption of,
or the commencement of contributions to, any Plan subject to
Section 412 of the Code by any Loan Party, any of its Subsidiaries
or any ERISA Affiliate, or (4) of the adoption of any amendment to
a Plan subject to Section 412 of the Code which results in a
material increase in contribution obligations of any Loan Party,
any of its Subsidiaries or any ERISA Affiliate, a detailed written
description thereof from the chief financial officer of the
Borrower Representative;
(v) the
occurrence of any event of default or material default, or the
receipt by any Loan Party or any of its Subsidiaries of any written
notice of an alleged event of default or material default, with
respect to any Material Indebtedness of any Loan Party or any of
its Subsidiaries;
(vi) any
material amendment or
modification to any Material Agreement (other than the Franchise
Agreements), together with a copy thereof, and prompt notice of any
termination, expiration or loss of any Material Agreement (other
than the Franchise Agreements);
(vii) any
material amendment or modification to any Franchise Agreement or
any related documents which could reasonably be expected to impact
any Loan Party's security interest in any assets of a franchisee
required pursuant to Sections 5.15 and 5.16 or that
could otherwise be materially adverse to the interests of
Administrative Agent or Lenders (including any UCC-1 financing
statement filed in connection therewith), together with a copy
thereof, and prompt notice of any termination, expiration or loss
of any Franchise Agreement;
(viii) any
franchisee party to a Franchise Agreement becoming subject to an
insolvency proceeding of the type described in clause (g) or (h) of
Section 8.1 or
otherwise becoming insolvent in each case, promptly following
receipt of actual notice by any Loan Party;
(ix) any
other development that results in, or could reasonably be expected
to result in, a Material Adverse Effect; and
(x) any
change in the information provided in the Beneficial Ownership
Certification that would result in a change to the list of
beneficial owners identified in parts (c) or (d) of such
certification.
(b) the Borrower
Representative will furnish to the Administrative Agent and each
Lender the following:
(i) promptly
and in any event at least 30 days prior thereto, notice of any
change (i) in any Loan Party’s legal name, (ii) in any Loan
Party’s chief executive office, its principal place of
business, any office in which it maintains books or records or any
office or facility at which Collateral owned by it is located
(including the establishment of any such new office or facility),
(iii) in any Loan Party’s identity or legal structure,
(iv) in any Loan Party’s federal taxpayer identification
number or organizational number or (v) in any Loan Party’s
jurisdiction of organization; and
(y) as
soon as available and in any event within 30 days after receipt
thereof, a copy of any environmental report or site assessment
obtained by or for any Loan Party or any of its Subsidiaries after
the Closing Date on any Real Estate.
Each
notice or other document delivered under this Section 5.2 shall be
accompanied by a written statement of a Responsible Officer setting
forth the details of the event or development requiring such notice
or other document and any action taken or proposed to be taken with
respect thereto.
. Each
Loan Party will, and will cause each of its Subsidiaries to, do or
cause to be done all things necessary to preserve, renew and
maintain in full force and effect its legal existence and, except
where the failure to do so could not reasonably be expected to have
a Material Adverse Effect, its respective rights, licenses,
permits, privileges, franchises, patents, copyrights, trademarks
and trade names material to the conduct of its business;
provided
that nothing in
this Section 5.3 shall prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 7.3.
Each
Loan Party will, and will cause each of its Subsidiaries to, comply
with all laws, rules, regulations and requirements of any
Governmental Authority applicable to its business and properties,
including all Environmental Laws, ERISA, OSHA, Anti-Corruption Laws
and Anti-Terrorism Laws, except where the failure to do so, either
individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect. Each Loan Party will
maintain in effect and enforce policies and procedures designed to
promote and achieve compliance by the Loan Parties, their
Subsidiaries and their respective directors, officers, employees
and agents with applicable Anti-Corruption Laws and applicable
Sanctions.
. Each
Loan Party will, and will cause each of its Subsidiaries to, pay
and discharge at or before maturity all of its obligations and
liabilities (including all taxes, assessments and other
governmental charges, levies and all other claims that could result
in a statutory Lien) before the same shall become delinquent or in
default, except where the validity or amount thereof is being
Properly Contested or the amount of such obligations and
liabilities, individually or in the aggregate, do not exceed
$300,000.
. Each
Loan Party will, and will cause each of its Subsidiaries to, keep
proper books of record
and account in which full, true and correct entries shall be made
of all dealings and transactions in relation to its business and
activities to the extent necessary to prepare the consolidated
financial statements of Loan Parties in conformity with
GAAP.
(a) Each Loan Party
will, and will cause each of its Subsidiaries to, permit any
representative of the Administrative Agent or any Lender to visit
and inspect its properties, to examine its books and records and to
make copies and take extracts therefrom, and to discuss its
affairs, finances and accounts with any of its officers and with
its independent certified public accountants, all at such
reasonable times and as often as the Administrative Agent or any
Lender may reasonably request after reasonable prior notice to the
Borrower Representative; provided that if an Event of Default has
occurred and is continuing, no prior notice shall be
required.
(b) Each
Loan Party will, and will cause each of its Subsidiaries to,
reimburse Administrative Agent for all its charges, costs and
expenses in connection with (i) examinations of Loan Parties’
books and records, field examinations or any other financial or
Collateral matters as it deems appropriate, up to one (1) time per
calendar year; provided, that, at any time
during any calendar year, if Excess Availability is less than the
greater of (i) $7,500,000 and (ii) 20% of the lesser of the
Aggregate Revolving Commitment Amount and the Borrowing Base for
three (3) consecutive days, Administrative Agent shall be entitled
to, in its discretion, undertake an additional field examination in
such calendar year, at the Borrowers’ expense; provided, further, that if an examination
is initiated during a Default or Event of Default, all charges,
costs and expenses relating thereto shall be reimbursed by
Borrowers without regard to such limits. In addition, if an
appraisal of the Real Estate is initiated during a Default or Event
of Default, all charges, costs and expenses relating thereto shall
be reimbursed by Borrowers. Borrowers shall pay Administrative
Agent's then standard charges for examination activities, including
charges for its internal examination and appraisal groups, as well
as the charges of any third party used for such purposes. No
Borrowing Base calculation shall include Collateral acquired in a
Permitted Acquisition or otherwise outside the ordinary course of
business until completion of applicable field examinations and
appraisals (which shall not be included in the limits provided
above) satisfactory to Administrative Agent.
. Each
Loan Party will, and will cause each of its Subsidiaries to, (a)
keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and
tear excepted, (b) maintain with financially sound and reputable
insurance companies which are not Affiliates of any Loan Party (i)
insurance with respect to its properties and business, and the
properties and business of its Subsidiaries, against loss or damage
of the kinds customarily insured against by companies in the same
or similar businesses operating in the same or similar locations,
in each case, in amounts and otherwise having terms satisfactory to
Administrative Agent in its Permitted Discretion (including, in any
event, flood insurance as described in the definition of Real
Estate Documents, which flood insurance must be in amounts
satisfactory to Lenders) and (ii) all insurance required to be
maintained pursuant to the Collateral Documents, and will, upon
request of the Administrative Agent, furnish to each Lender at
reasonable intervals a certificate of a Responsible Officer setting
forth the nature and extent of all insurance maintained by any Loan
Party and its Subsidiaries in accordance with this Section 5.8 (and, if requested
by the Administrative Agent or any Lender, a copy of any policy
referenced therein if not already delivered), and (c) at all times
shall name the Administrative Agent as additional insured on all
liability policies of any Loan Party and its Subsidiaries and as
mortgagee and lender's loss payee (pursuant to a mortgagee and
lender’s loss payable endorsement approved by the
Administrative Agent) and mortgagee, if applicable on all casualty
and property insurance policies of the Loan Parties and their
Subsidiaries.
. The
Borrowers will use the proceeds of all Loans received on the
Closing Date to satisfy in full Indebtedness owed to the Existing
Lender and to pay
transaction costs and expenses arising in connection with the
Related Transaction Documents and the closing of the Loan
Documents. The Borrowers will use the proceeds of all Loans
received after the Closing Date to finance working capital needs,
Permitted Acquisitions and capital expenditures and for other
general corporate purposes of the Borrowers and their Subsidiaries.
No part of the proceeds of any Loan will be used, whether directly
or indirectly, for any purpose that would violate any rule or
regulation of the Board of Governors of the Federal Reserve System,
including Regulation T, Regulation U or Regulation X, or breach the
U.S. Foreign Corrupt Practices Act of 1977, UK Bribery Act 2010 or
similar law in any jurisdiction. All Letters of Credit will be used
for general corporate purposes. The Borrowers will not request any
Borrowing or Letter of Credit, and the Borrowers shall not use, and
the Borrowers shall ensure that their Subsidiaries and their or
their respective directors, officers, employees and agents shall
not use, the proceeds of any Borrowing or Letter of Credit (i) in
furtherance of an offer, payment, promise to pay, or authorization
of the payment or giving of money, or anything else of value, to
any Person in violation of any Anti-Corruption Laws, (ii) for the
purpose of funding, financing or facilitating any activities,
business or transaction of or with any Sanctioned Person, or in any
Sanctioned Country or (iii) in any manner that would result in the
violation of any Anti-Terrorism Law or Sanctions applicable to any
party hereto.
. The
Loan Parties (a) will furnish to the Administrative Agent and the
Lenders prompt written notice of any casualty or other insured
damage to any material portion of any Collateral or the
commencement of any action or preceding for the taking of any
material portion of any Collateral or any part thereof or interest
therein under power of eminent domain or by condemnation or similar
proceeding and (b) will ensure that the net cash proceeds of any
such event (whether in the form of insurance proceeds, condemnation
awards or otherwise) are collected and applied in accordance with
the applicable provisions of this Agreement and the Collateral
Documents.
.
(a) On or before the
Closing Date, the Loan Parties will establish, and thereafter
maintain at all times, a deposit account at Truist Bank that will
serve as the main concentration account (the “Collateral Reserve
Account”). The Loan Parties will, and will cause each
of their Domestic Subsidiaries to, maintain all other cash
management and treasury business with the Administrative Agent or a
Permitted Third Party Bank, including all deposit accounts, lockbox
accounts, disbursement accounts, securities accounts, investment
accounts and other similar accounts (other than (i) zero-balance
accounts for the purpose of managing local disbursements, (ii)
payroll, withholding and other fiduciary accounts and (iii) deposit
accounts with amounts on deposit that do not exceed $25,000 in the
aggregate at any one time, all of which the Loan Parties may
maintain without restriction, the “Excluded Accounts”) (each
such account (other than an Excluded Account), together with the
Collateral Reserve Account, a “Controlled Account”).
Each Controlled Account shall be a cash collateral account, with
all cash, checks and other similar items of payment in such account
securing payment of the Obligations, and in which each Loan Party
and each of its Subsidiaries shall have granted a first priority
Lien to the Administrative Agent, on behalf of the Secured Parties,
perfected pursuant to an Account Control Agreement.
(b) The Loan Parties
will cause Account Debtors to make payments in respect of the
Accounts directly to a Controlled Account, provided, that until June 30, 2021 (or
such later date as extended in writing by Administrative Agent in
its discretion) such payments made by Account Debtors of HQ
Snelling may be made to the account ending 2461 at Seacoast Bank
without the need to deliver an account control agreement during
such period, so long as such funds are swept to the Collateral
Reserve Account on a weekly basis and Loan Parties agree that they
will not change the standing instructions to transfer such funds on
a weekly basis as provided above. In the event that the Loan
Parties or any of their Subsidiaries shall at any time receive any
remittances of any of the foregoing directly or shall receive any
other funds representing proceeds of the Collateral, the Loan
Parties will, and will cause each of their Subsidiaries to, (i)
hold the same as trustee for the Administrative Agent and segregate
such remittances from its other assets and (ii) deposit promptly,
and in any event no later than one (1) Business Day after the date
of receipt thereof, all cash, cash equivalents, checks, notes,
drafts or other similar items of payment relating to or
constituting payments made in respect of any and all Accounts or
representing proceeds of other Collateral into a Controlled
Accounts, provided,
that until June 30,
2021 (or such later date as extended in writing by Administrative
Agent in its discretion) such payments made by Account Debtors of
HQ Snelling may be made to the account ending 2461 at Seacoast Bank
without the need to deliver an account control agreement during
such period, so long as such funds are swept to the Collateral
Reserve Account on a weekly basis and Loan Parties agree that they
will not change the standing instructions to transfer such funds on
a weekly basis as provided above.
(c) The Administrative
Agent may, in its sole discretion (and shall at the request of the
Required Lenders), cause all immediately available funds in the
Controlled Accounts to be deposited into the Collateral Reserve
Account and apply the same against the Obligations.
(d) At
the election of the Administrative Agent, in its sole discretion
(or at the request of the Required Lenders):
(i) the
Loan Parties shall take all steps to ensure that all of their
Account Debtors forward all items of payment to lockboxes
established with the Administrative Agent or Permitted Third Party
Banks;
(ii) all
amounts which shall be deposited into any Controlled Account shall
immediately be under the sole dominion and exclusive control of the
Administrative Agent, on behalf of the Secured Parties, and no Loan
Party shall have any right to withdraw such amounts from the
Controlled Accounts; and
(iii) on
each Business Day the Administrative Agent will, without further
consent of any Loan Party, cause all immediately available funds in
the Controlled Accounts to be deposited into the Collateral Reserve
Account and apply the same against the Obligations.
(e) The
Loan Parties shall use commercially reasonable efforts to cause
each of their Credit Card Processors (other than Truist Bank in the
Administrative Agent’s discretion) to enter into an
agreement, in form and substance satisfactory to the Administrative
Agent in its Permitted Discretion, with the Administrative Agent
and the applicable Loan Party pursuant to which the applicable Loan
Party shall irrevocably instruct such Credit Card Processor to
forward all items of payment owing to the Loan Party directly to a
Controlled Account (each, a “Credit Card Processor
Agreement”).
(a) In the event that,
subsequent to the Closing Date, any Person becomes a Domestic
Subsidiary, whether pursuant to formation, acquisition or
otherwise, (x) the Borrower Representative shall promptly notify
the Administrative Agent and the Lenders thereof and (y) within ten
(10) days after such Person becomes a Domestic Subsidiary, the
Borrower Representative shall cause such Domestic Subsidiary (i) to
become a new Borrower or Guarantor as requested by the
Administrative Agent and to grant Liens in favor of the
Administrative Agent in all of its personal property by executing
and delivering to the Administrative Agent a supplement to the
Security Agreement in form and substance reasonably satisfactory to
the Administrative Agent, executing and delivering an Intellectual
Property Security Agreement, and authorizing and delivering, at the
request of the Administrative Agent, such UCC financing statements
or similar instruments required by the Administrative Agent to
perfect the Liens in favor of the Administrative Agent and granted
under any of the Loan Documents, (ii) to grant Liens in favor of
the Administrative Agent in all fee ownership interests in Real
Estate by executing and delivering to the Administrative Agent such
Real Estate Documents as the Administrative Agent shall require,
and (iii) to deliver all such other documentation (including
certified organizational documents, resolutions, lien searches,
title insurance policies, surveys, environmental reports and legal
opinions) and to take all such other actions as such Subsidiary
would have been required to deliver and take pursuant to
Section 3.1 if such
Subsidiary had been a Loan Party on the Closing Date or that such
Subsidiary would be required to deliver pursuant to Section 5.13 with respect to
any Real Estate. In addition, within ten (10) days after the date
any Person becomes a Domestic Subsidiary, the Borrower
Representative shall, or shall cause the applicable Loan Party to
(i) pledge all of the Capital Stock of such Domestic Subsidiary to
the Administrative Agent as security for the Obligations by
executing and delivering a supplement to the Security Agreement in
form and substance satisfactory to the Administrative Agent, and
(ii) deliver the original certificates evidencing such pledged
Capital Stock to the Administrative Agent, together with
appropriate powers executed in blank.
(b) In the event that,
subsequent to the Closing Date, any Person becomes a Foreign
Subsidiary, whether pursuant to formation, acquisition or
otherwise, (x) the Borrower Representative shall promptly notify
the Administrative Agent and the Lenders thereof and (y) to the
extent such Foreign Subsidiary is owned directly by any Loan Party,
within thirty (30) days after such Person becomes a Foreign
Subsidiary or, if the Administrative Agent determines in its sole
discretion that the Borrowers are working in good faith, such
longer period as the Administrative Agent shall permit not to
exceed thirty (30) additional days, the Borrower Representative
shall, or shall cause the applicable Loan Party to (i) pledge all
of the Capital Stock of such Foreign Subsidiary (or, if the pledge
of all of the voting Capital Stock of such Foreign Subsidiary would
result in materially adverse tax consequences, then such pledge
shall be limited to 65% of the issued and outstanding voting
Capital Stock and 100% of the issued and outstanding non-voting
Capital Stock of such Foreign Subsidiary, as applicable) to the
Administrative Agent as security for the Obligations pursuant to a
pledge agreement in form and substance satisfactory to the
Administrative Agent, (ii) deliver the original certificates
evidencing such pledged Capital Stock to the Administrative Agent,
together with appropriate powers executed in blank and (iii)
deliver all such other documentation (including certified
organizational documents, resolutions, lien searches and legal
opinions) and to take all such other actions as the Administrative
Agent may reasonably request.
(c) The Borrowers
agrees that, following the delivery of any Collateral Documents
required to be executed and delivered by this Section, the
Administrative Agent shall have a valid and enforceable, first
priority perfected Lien on the property required to be pledged
pursuant to subsections (a) and (b) of this Section free and clear
of all Liens other than Permitted Liens. All actions to be taken
pursuant to this Section shall be at the expense of the Borrowers
or the applicable Loan Party and shall be taken to the reasonable
satisfaction of the Administrative Agent.
(a) To the extent
otherwise permitted hereunder, if any Loan Party proposes to
acquire a fee ownership interest in Real Estate after the Closing
Date, it shall at the time of such acquisition provide to the
Administrative Agent Real Estate Documents in regard to such Real
Estate.
(b) To the extent
otherwise permitted hereunder, if any Loan Party proposes to lease
any Real Estate, it shall use commercially reasonable efforts first
to provide to the Administrative Agent a copy of such lease and a
Lien Waiver from the landlord of such leased property or the bailee
with respect to any warehouse or other location where such books,
records or Collateral will be stored or located, which agreement or
letter shall be reasonably satisfactory in form and substance to
the Administrative Agent; provided that if such Loan
Party is unable to deliver any such Lien Waiver after using its
commercially reasonable efforts to do so, the Administrative Agent
may waive the foregoing requirement in its reasonable discretion
and may impose a Rent Reserve with respect to such
location.
(c) The Loan Parties
covenant and agree that (i) the Plans and Specifications and the
Office Project Improvements, when completed, will be in material
compliance with all laws and all rules and regulations promulgated
thereunder, and any restrictions of record affecting the Office
Project Premises, (ii) there are sufficient utilities (water,
sewer, electric, telephone and gas) for the construction and
operation of the Office Project Improvements; (iii) the Loan
Parties will diligently pursue the construction of the Office
Project Improvements, and will complete the same substantially in
accordance with the Plans and Specifications on or before the
Completion Date, free and clear of Liens or claims for liens; (iv)
without limiting the generality of Section 5.7(a), the Loan
Parties will permit the Administrative Agent and its
representatives to enter upon the Office Project Premises at all
reasonable times and after providing reasonable notice to inspect
the Office Project Improvements and the construction thereof and to
examine all detailed plans, shop drawings, specifications and other
records which relate to the Office Project Improvements and will
cooperate, and cause the Contractor and all subcontractors and
materialmen to cooperate, with the Administrative Agent and its
representatives in such inspections; (v) on or before August 31,
2021 (or such later date as extended in writing by Administrative
Agent in its discretion), subject only to Excusable Delays, the
Office Project will be fully completed substantially in accordance
with the Plans and Specifications, substantially in accordance with
the Operating Budget, in material compliance with applicable law
and free and clear of mechanics’ and materialmen’s
Liens; and (vi) the Loan Parties will (a) notify Administrative
Agent of any material defect in the Office Project Improvements and
any material departure from the Plans and Specifications or the
Operating Budget upon such occurrence promptly (and in
any event within ten (10) Business Days) after any Loan
Party’s having obtained knowledge of such occurrence and (b)
correct all material defects in the Office Project Improvements and
any material departure from the Plans and Specifications or the
Operating Budget not approved by the Administrative Agent in its
Permitted Discretion.
. The
Borrowers will, and will cause each other Loan Party to, execute
any and all further documents, financing statements, agreements and
instruments, and take all such further actions (including the
filing and recording of financing statements, fixture filings,
Mortgages and other documents), which may be required under any
applicable law, or which the Administrative Agent or the Required
Lenders may request in their Permitted Discretion, to effectuate
the transactions contemplated by the Loan Documents or to grant,
preserve, protect or perfect the Liens created by the Collateral
Documents or the validity or priority of any such Lien, all at the
expense of the Loan Parties. The Borrowers also agree to provide to
the Administrative Agent, from time to time upon request, evidence
reasonably satisfactory to the Administrative Agent as to the
perfection and priority of the Liens created or intended to be
created by the Collateral Documents.
.
Subject to Section
5.16(a) to the extent applicable, (i) no Borrower shall
enter into a Franchise Agreement that does not contain a provision
substantially in the form of Exhibit F or, with respect to
franchise agreements acquired from the Snelling Staffing Sellers,
that does not contain a comparable grant of security in the form in
existence on the date of the acquisition thereof, in each case, or
such other forms as shall be acceptable to the Administrative Agent
in its Permitted Discretion, (ii) the applicable Borrower party to
each Franchise Agreement shall file in the location of such
franchisee party to such Franchise Agreement, and maintain, a UCC-1
financing statement naming the applicable franchisee party to such
Franchise Agreement, as debtor, and such Borrower, as secured
party, and describing the collateral therein consistent with the
grant of security set forth in the applicable Franchise Agreement
as descried in clause (i) above, and (iii) unless the Accounts
sourced by any such franchisee are excluded from the Borrowing Base
at all times on and after the later of the Closing Date or the date
of such grant of security, Borrowers shall insure that such
security interest of the applicable Borrower in such assets is a
first-priority security interest, free and clear of all Liens other
than Liens expressly permitted by Administrative Agent in writing
and subordinated to the applicable Borrower’s Liens pursuant
to a lien subordination agreement in form and substance
satisfactory to Administrative Agent in its Permitted
Discretion. From and after the Closing Date, all agreements
with Account Debtors and all invoices to Account Debtors shall
require payments to be made directly to the Collateral Reserve
Account or a lockbox associated therewith; provided that, until
June 30, 2021 (or such later date as extended in writing by
Administrative Agent in its discretion), such payments made by
Account Debtors of HQ Snelling may be made to the account ending
2461 at Seacoast Bank in accordance with Section 5.11(b). Upon request
by Administrative Agent, Borrowers shall cause all such UCC-1
financing statements to be assigned to Administrative
Agent.
(a) (i) To the extent
not delivered on the Closing Date on or before the renewal date for
each Franchise Agreement in existence on the Closing Date or
acquired pursuant to a Permitted Acquisition after the Closing Date
or, in the case of any Franchise Agreement with an Affiliate of a
Borrower in existence on the Closing Date, on or before the date
thirty (30) days following the Closing Date (in each case, or such
later date as extended in writing by Administrative Agent in its
discretion), the Loan Parties shall (x) execute and deliver, and
cause the franchisee party to such Franchise Agreement to execute
and deliver, an amended and restated Franchise Agreement or an
amendment to the Franchise Agreement containing a provision in
substantially the same form as Exhibit F or such other form as
shall be accepted by the Administrative Agent in writing, provided
that no such amendment shall be required with respect to Franchise
Agreements acquired from Snelling Staffing Sellers that already
contain a comparable grant of security, (y) shall file a UCC-1
financing statement meeting the requirements of Section 5.15; provided that
with respect to franchisees party to Franchise Agreements acquired
from Snelling Staffing Sellers that already contain such comparable
grant of security, such UCC-1 financing statements shall be filed
within thirty (30) days of the Closing Date, and (z) shall use
commercially reasonable efforts to insure that Borrower’s
Liens on such assets described in the UCC-1 financing statement are
first-priority Liens, subject to no other Liens except as permitted
under Section 5.15,
and (ii) on a quarterly basis, together with the delivery of
quarterly financial statements, Borrowers shall deliver to
Administrative Agent a report in form and substance satisfactory to
Administrative Agent updating Schedule 4.26 and including
thereon a report of the progress achieved under clause (i) and
information with respect to all new franchisees after the Closing
Date;
(b) On or before June
30, 2021 (or such later date as extended in writing by
Administrative Agent in its discretion), the Loan Parties shall
deliver to Administrative Agent (i) evidence that the account
ending in 2461 of HQ Snelling at Seacoast Bank has been closed and
(ii) the original signatures pages to the Mortgage executed and
delivered on the Closing Date.
(c) Within thirty (30)
days after the Completion Date (or such later date as extended in
writing by Administrative Agent in its discretion), the Loan
Parties shall deliver to the Administrative Agent and the Title
Insurance Company an ALTA as-built survey showing the location of
the new Office Project Improvements and that such new Office
Project Improvements are or have been constructed within lot lines,
and comply with all zoning ordinances and all other legal
requirements and all Permitted Encumbrances including those
applicable to set backs, height, density, parking spaces,
impervious surface area, floor area of the structures, and area,
width or depth of the land as a building site for the
structures.
(d) Within thirty (30)
days after the Completion Date (or such later date as extended in
writing by Administrative Agent in its discretion), the Loan
Parties shall provide to the Administrative Agent and the Title
Insurance Company a letter from the applicable zoning authority
confirming compliance of the new Office Project Improvements with
applicable zoning laws and regulations.
(e) Within thirty (30)
days after the Completion Date (or such later date as extended in
writing by Administrative Agent in its discretion), the Loan
Parties shall deliver to the Administrative Agent a satisfactory
final affidavit from the Contractor and, if requested by the
Administrative Agent, all full and complete releases of Liens from
all contractors and suppliers with respect to work performed and
material supplied to the Office Project.
(f) Within thirty (30)
days after the Completion Date (or such later date as extended in
writing by Administrative Agent in its discretion), the Loan
Parties shall deliver to the Administrative Agent a satisfactory
set of as-built plans for the Office Project and all the Office
Project Improvements.
(g) Within thirty (30)
days after the Completion Date (or such later date as extended in
writing by Administrative Agent in its discretion), the Loan
Parties shall deliver to the Administrative Agent a satisfactory
updated Estoppel Certificate from Crowfield Plantation Community
Services Association, Inc.
(h) On or after the
date ninety-one (91) days following the Completion Date (or such
later date as extended in writing by Administrative Agent in its
discretion) and at such other times as may be reasonably requested
by the Administrative Agent during the construction of the Office
Project, the Loan Parties shall cause the Title Insurance Company
(at the Borrowers’ expense) to deliver to the Administrative
Agent new or updated zoning, survey, future improvements, date down
and other general endorsements to the Title Insurance Policy
insuring the new Office Project and insuring that the Office
Project is free of all Liens, in a form acceptable to the
Administrative Agent.
(i) On or before August
31, 2021 (or such later date as extended in writing by
Administrative Agent in its discretion), subject to Excusable
Delays (or, if earlier, within thirty (30) days of the Completion
Date), the Loan Parties shall deliver to the Administrative Agent
(i) a certificate of occupancy (or equivalent acceptable to the
Administrative Agent) with respect to the Office Project
Improvements from the applicable Governmental Authority, and such
other evidence reasonably satisfactory to the Administrative Agent
certifying that the Office Project Improvements comply with all
applicable Laws, including, without limitation, all applicable
zoning ordinances, building and use regulations and codes and all
Permitted Encumbrances and (ii) if requested by the Administrative
Agent, a written certification from Contractor that the Office
Project Improvements have been completed substantially in
accordance with the Plans and Specifications.
ARTICLE VI
The
Borrowers, on behalf of themselves and the other Loan Parties,
covenant and agree with the Administrative Agent and the Lenders
that, until Payment in Full of the Obligations:
. The
Loan Parties and their
Subsidiaries will maintain, as of the end of each Fiscal Month for
the period of twelve consecutive Fiscal Months ending on such date,
commencing with the period ending on June 30, 2021, a Consolidated
Fixed Charge Coverage Ratio of not less than
1.25:1.0.
Section
6.2. Leverage
Ratio
. The
Loan Parties and their
Subsidiaries will maintain, at all times, a Leverage Ratio of not
more than 3.0:1.0.
ARTICLE VII
Until
Payment in Full of the Obligations, the Borrowers, on behalf of
themselves and the other Loan Parties, covenant and agree with the
Administrative Agent and the Lenders that the Loan Parties and
their Subsidiaries shall not:
Create,
incur, assume or suffer to exist any Indebtedness,
except:
(a) The
Obligations;
(b) Indebtedness of the
Loan Parties and their Subsidiaries existing on the date hereof and
set forth on Schedule
7.1 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof (immediately prior to giving effect to such extension,
renewal or replacement) or shorten the maturity or the weighted
average life thereof;
(c) Indebtedness of the
Loan Parties and their Subsidiaries incurred to finance the
acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations, and any Indebtedness
incurred to finance the acquisition, construction or improvement of
any fixed or capital assets, including Capital Lease Obligations
and assumed in connection with the acquisition of any such assets
or secured by a Lien on any such assets prior to the acquisition
thereof (provided
that such Indebtedness is incurred prior to or within 90 days after
such acquisition or the completion of such construction or
improvements), and extensions, renewals or replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof (immediately prior to giving effect to such extension,
renewal or replacement) or shorten the maturity or the weighted
average life thereof; provided that the aggregate
principal amount of such Indebtedness under this clause (c) does
not exceed $5,000,000 in the aggregate at any time
outstanding;
(d) Indebtedness of any
Loan Party owing to any other Loan Party; provided that any such
Indebtedness that is owed by a Loan Party that is not a Borrower
shall be subject to Section 7.4;
(e) Guarantees by any
Loan Party of Indebtedness of any other Loan Party; provided that Guarantees by any
Borrower of Indebtedness of any Loan Party that is not a Borrower
shall be subject to Section 7.4;
(f) Indebtedness of any
Person which becomes a Subsidiary after the date of this Agreement;
provided that (i)
such Indebtedness exists at the time that such Person becomes a
Subsidiary and is not created in contemplation of or in connection
with such Person becoming a Subsidiary, and (ii) the aggregate
principal amount of such Indebtedness permitted under this clause
(f) shall not exceed $5,000,000 in the aggregate at any time
outstanding;
(g) Permitted
Subordinated Debt;
(h) Hedging Obligations
permitted by Section
7.10; and
(i) other unsecured
Indebtedness of the Loan Parties in an aggregate principal amount
not to exceed $1,000,000 at any time outstanding.
No Loan
Party will and will not permit any of its Subsidiaries to, issue
any preferred stock or other preferred Capital Stock that (i)
matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (ii) is or may become redeemable or
repurchaseable by any Loan Party or such Subsidiary at the option
of the holder thereof, in whole or in part, or (iii) is convertible
or exchangeable at the option of the holder thereof for
Indebtedness or preferred stock or any other preferred Capital
Stock described in this paragraph, on or prior to, in the case of
clause (i), (ii) or (iii), the first anniversary of the later
of Tranche
A Revolving
Commitment Termination Date and the Term Loan Maturity
Date.
.
Create, incur, assume or suffer to exist any Lien on any of its
assets or property now owned or hereafter acquired,
except:
(a) Liens at any time
granted to the Administrative Agent securing the Obligations;
provided that no
Liens may secure Secured Hedging Obligations or Secured Bank
Product Obligations without securing all other Obligations on a
basis at least pari passu
with such Secured Hedging Obligations or Secured Bank Product
Obligations and subject to the priority of payments set forth in
Section 2.23 and
Section
8.2;
(b) Reserved;
(c) Liens on any
property or asset of the Loan Parties or any of their Subsidiaries
existing on the date hereof and set forth on Schedule 7.2; provided that such Liens shall
not apply to any other property or asset of any Loan Party or any
of its Subsidiaries, and the assets subject to such Liens shall not
be included in the Borrowing Base and shall not consist of
Mortgaged Property;
(d) purchase money
Liens upon or in any fixed or capital assets (not included in the
Borrowing Base and not consisting of Mortgaged Property) to secure
the purchase price or the cost of construction or improvement of
such fixed or capital assets or to secure Indebtedness incurred
solely for the purpose of financing the acquisition, construction
or improvement of such fixed or capital assets (including Liens
securing any Capital
Lease Obligations); provided that (i) such Lien
secures Indebtedness permitted by Section 7.1(c), (ii) such Lien
attaches to such asset concurrently or within ninety (90) days
after the acquisition or the completion of the construction or
improvements thereof, (iii) such Lien does not extend to any other
asset of any Loan Party, and (iv) the Indebtedness secured thereby
does not exceed the cost of acquiring, constructing or improving
such fixed or capital assets;
(e) any Lien (x)
existing on any asset of any Person at the time such Person becomes
a Subsidiary of a Loan Party, (y) existing on any asset of any
Person at the time such Person is merged with or into a Loan Party
or any of its Subsidiaries, or (z) existing on any asset prior to
the acquisition thereof by a Loan Party or any of its Subsidiaries;
provided that (i)
any such Lien was not created in the contemplation of any of the
foregoing, (ii) any such Lien secures only those obligations which
it secures on the date that such Person becomes a Subsidiary or the
date of such merger or the date of such acquisition and (iii) such
assets subject to such Liens are not included in the Borrowing Base
and do not consist of Mortgaged Property;
(f) extensions,
renewals, or replacements of any Lien referred to in Sections 7.2(c) through
(e); provided that the principal
amount of the Indebtedness secured thereby is not increased and
that any such extension, renewal or replacement is limited to the
assets originally encumbered thereby;
(g) Liens imposed by
law for taxes not yet due or which are being Properly Contested or
do not individually or in the aggregate (together with amounts
secured pursuant to Sections 7.2(h) and
(o)), exceed
$300,000;
(h) statutory Liens of
landlords, carriers, warehousemen, mechanics, materialmen and other
Liens (other than Liens for Taxes or imposed under ERISA) imposed
by law in the ordinary course of business for amounts not yet due
or which are being Properly Contested or do not individually or in
the aggregate (together with amounts secured pursuant to
Sections 7.2(g) and
(o)), exceed
$300,000;
(i) pledges and
deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other
social security laws or regulations so long as such Liens are at
all times junior to the Administrative Agent's Lien in the
Collateral and do not secure any Indebtedness;
(j) deposits to secure
the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, in each case in the ordinary course
of business so long as such Liens are at all times junior to the
Administrative Agent's Lien in the Collateral and do not secure any
Indebtedness;
(k) Liens arising by
virtue of a judgment or judicial order against any Loan Party or
Subsidiary, or any property of a Loan Party or Subsidiary, not
giving rise to an Event of Default as long as such Liens are (i) in
existence for less than thirty (30) consecutive days or are being
Properly Contested, and (ii) at all times junior to the
Administrative Agent's Liens or a Reserve in the amount of such
judgment has been created;
(l) normal and
customary rights of set-off, revocation, refund or chargeback upon
deposit agreements or under the UCC or common law of banks or other
financial institutions where any Loan Party or any of its
Subsidiaries maintains deposits (other than deposits intended as
cash collateral) in the ordinary course of business;
(m) easements, zoning
restrictions, rights-of-way, restrictive covenants and similar
encumbrances (including those expressly permitted under the
Mortgage) on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the
affected property or materially interfere with the ordinary conduct
of business of the Loan Parties and their
Subsidiaries;
(n) any interest or
title of a lessor under an operating lease or sale and leaseback
transaction permitted by the Agreement; and
(o) any other Liens not
otherwise permitted by this Section 7.2 so long as neither (i) the
aggregate principal amount of the Indebtedness and other
obligations secured thereby (together with amounts secured pursuant
to Sections 7.2(g)
and (h)), nor (ii)
the aggregate fair market value (determined as of the date such
Lien is incurred) of the assets subject thereto exceeds $300,000 at
any time outstanding.
(a) Merge into or
consolidate into any other Person, or permit any other Person to
merge into or consolidate with it, or sell, lease, transfer or
otherwise dispose of (in a single transaction or a series of
transactions) all or substantially all of its assets (in each case,
whether now owned or hereafter acquired) or all or substantially
all of the stock of any of its Subsidiaries (in each case, whether now owned
or hereafter acquired) or liquidate or dissolve;
provided that if,
at the time thereof and immediately after giving effect thereto, no
Default or Event of Default shall have occurred and be continuing,
any merger or consolidation of a Loan Party with another Loan Party
shall be permitted; provided that a Borrower shall
be the surviving entity in any merger or consolidation involving a
Borrower; provided,
further, that, so
long as no Event of Default exists and subject to compliance with
the Security Agreement, any Borrower may sell, convey, transfer,
assign, lease, or otherwise dispose of any or all of its assets to
any other Borrower; and
(b) Engage in any
business other than businesses of the type conducted by the Loan
Parties on the date hereof and businesses reasonably related
thereto provided, however, that the Loan Parties may engage in
providing temporary staffing services in different industries than
those currently or historically serviced by the Loan
Parties.
(c) Holdings will not
engage in any business or activity other than the ownership of the
outstanding Capital Stock of its Subsidiaries and activities
incidental to such ownership, the maintenance of its organizational
existence and the performance of its obligations under the Loan
Documents to which it is a party. Holdings will not own or acquire
any assets (other than the Capital Stock of the other Borrowers,
books and records, deposit accounts subject to Account Control
Agreements and the cash proceeds of any Restricted Payments
permitted by Section
7.5) or incur any liabilities (other than liabilities under
the Loan Documents, liabilities reasonably incurred in connection
with the maintenance of its organizational existence and Guarantees
of Indebtedness of its Subsidiaries permitted
hereunder).
Purchase,
hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Subsidiary prior to such merger) any
Capital Stock, evidence of Indebtedness or other securities
(including any option, warrant, or other right to acquire any of
the foregoing) of, make or permit to exist any loans or advances
to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person (all of the
foregoing being collectively called “Investments”), or
purchase or otherwise acquire (in one transaction or a series of
transactions) any assets of any other Person that constitute a
business unit, or create or form any Subsidiary,
except:
(a) Investments (other
than Permitted Investments) existing on the date hereof and set
forth on Schedule
7.4 (including Investments in Subsidiaries);
(b) Permitted
Investments;
(c) Guarantees
constituting Indebtedness permitted by Section 7.1; provided that the aggregate
principal amount of Indebtedness of Loan Parties that are not
Borrowers that is Guaranteed by any Borrower shall be subject to
the limitation set forth in subsection (d) of this
Section;
(d) Investments made by
a Loan Party in or to any other Loan Party; provided that the aggregate
amount of Investments by the Borrowers in or to, and, without
duplication, Guarantees by the Borrowers of Indebtedness of, any
Loan Party that is not a Borrower (including all such Investments
and Guarantees existing on the Closing Date) shall not exceed
$1,000,000 at any time
outstanding;
(e) loans or advances
to employees, officers or directors of any Loan Party or any of its
Subsidiaries in the ordinary course of business for travel,
relocation and related expenses; provided that the aggregate amount of all
such loans and advances does not exceed $500,000 at any time
outstanding;
(f) Hedging
Transactions permitted by Section 7.10;
(g) Permitted
Acquisitions;
(h) Investments
acquired in connection with the settlement of delinquent Accounts
in the ordinary course of business or in connection with the
bankruptcy or reorganization of suppliers or customers;
and
(i) other Investments
which in the aggregate do not exceed $1,000,000 in any Fiscal Year.
. Declare or make, or agree to pay
or make, directly or indirectly, any Restricted Payment,
except:
(a) dividends payable
by a Loan Party solely in interests of any class of its common
equity; and
(b) cash dividends and
distributions paid on the common equity and repurchases of the
shares of common stock of a Borrower pursuant to a plan adopted by
the Board of Directors or similar governing body of a Loan Party;
provided that (i)
before and after giving effect to such dividend, distribution or
repurchase and any Indebtedness incurred in connection therewith,
the Payment Conditions shall have been satisfied, (ii) with respect
to any dividend, distribution or repurchase made before October 1,
2021, the aggregate amount of all such dividends, distributions and
repurchases made by Borrowers in any Fiscal Quarter does not exceed
$850,000, (iii) before and after giving effect to such dividend,
distribution or repurchase and any Indebtedness incurred in
connection therewith, each Loan Party is Solvent, and (iv) such
dividend, distribution or repurchase is not violative of applicable
law.
.
Convey, sell, lease, assign, transfer or otherwise dispose of any
of its assets, business or property or, in the case of any
Subsidiary, any shares of such Subsidiary’s Capital Stock, in
each case whether now owned or hereafter acquired, to any Person
other than the Borrowers, except:
(a) the sale or other
disposition for fair market value of obsolete or worn out property
or other property not necessary for operations disposed of in the
ordinary course of business;
(b) the sale of
inventory and the sale or disposition of Permitted Investments, in
each case, in the ordinary course of business;
(c) dispositions
resulting from any taking or condemnation of any property of any
Borrower by any Governmental Authority or any assets subject to a
casualty;
(d) dispositions
permitted by Section
7.9;
(e) dispositions
permitted by Section
7.3; and
(f) so long as no Event
of Default or Overadvance exists or would result therefrom, the
sale or other disposition of other assets (other than Eligible
Accounts and Mortgaged Property) in an aggregate amount not to
exceed $500,000 in any 12-month period commencing after the Closing
Date.
. Sell,
lease or otherwise transfer any property or assets to, or purchase,
lease or otherwise acquire any property or assets from, or
otherwise engage in any other transactions with, any of its
Affiliates, except:
(a) in the ordinary
course of business upon fair and reasonable terms and conditions no
less favorable to a Loan Party or such Subsidiary than could be
obtained on an arm’s-length basis from unrelated third
parties;
(b) transactions
between or among the Borrowers not involving any other Affiliates
to the extent otherwise permitted by this Agreement;
and
(c) any Restricted
Payment permitted by Section 7.5;
and
(d) such transactions
set forth on Schedule
7.7.
.
Directly or indirectly, enter into, incur or permit to exist any
agreement that prohibits, restricts or imposes any condition upon
(a) the ability of a Loan Party or any of its Subsidiaries to
create, incur or permit any Lien upon any of its assets or
properties, whether now owned or hereafter acquired, or (b) the
ability of any of its Subsidiaries to pay dividends or other
distributions with respect to its Capital Stock, to make or repay
loans or advances to a Loan Party or any other Subsidiary thereof,
to Guarantee Indebtedness of a Loan Party or any other Subsidiary
thereof or to transfer any of its property or assets to a Loan
Party or any other Subsidiary thereof; provided that (i) the
foregoing shall not apply to restrictions or conditions imposed by
law or by this Agreement or any other Loan Document,
(ii) the foregoing shall not apply to customary restrictions
and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is sold and such sale
is permitted hereunder, (iii) clause (a) shall not apply to
restrictions or conditions imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such
restrictions and conditions apply only to the property or assets
securing such Indebtedness and (iv) clause (a) shall not apply to
customary provisions in leases and other contracts restricting the
assignment thereof.
. Enter
into any arrangement, directly or indirectly, whereby it shall sell
or transfer any property, real or personal, used or useful in its
business, whether now owned or hereinafter acquired, and thereafter
rent or lease such property or other property that it intends to
use for substantially the same purpose or purposes as the property
sold or transferred (each, a “Sale/Leaseback
Transaction”), unless at the time such Sale/Leaseback
Transaction is entered into (a) no Default or Event of Default has
occurred and is continuing, (b) after giving pro forma effect to
such Sale/Leaseback Transaction, the Loan Parties are in compliance
with the financial covenants set forth in Article VI, (c) the assets
subject to such Sale/Leaseback Transaction are not included in the
Borrowing Base and do not consist of Mortgaged Property and (d) the
Borrower Representative has delivered a certificate to the
Administrative Agent certifying the conditions set forth in clauses
(a), (b) and (c) and setting forth in reasonable detail
calculations demonstrating pro forma compliance with the financial
covenants set forth in Article VI.
.
Permit any of its Subsidiaries to, enter into any Hedging
Transaction, other than Hedging Transactions entered into in the
ordinary course of business to hedge or mitigate risks to which a
Loan Party or any of its Subsidiaries is exposed in the conduct of
its business or the management of its liabilities. Solely for the
avoidance of doubt, the Borrowers acknowledge that a Hedging
Transaction entered into for speculative purposes or of a
speculative nature (which shall be deemed to include any Hedging
Transaction under which a Loan Party or any of its Subsidiaries is
or may become obliged to make any payment (i) in connection with
the purchase by any third party of any Capital Stock or any
Indebtedness or (ii) as a result of changes in the market value of
any Capital Stock or any Indebtedness) is not a Hedging Transaction
entered into in the ordinary course of business to hedge or
mitigate risks.
.
Amend, modify or waive any of its rights under (a) its certificate
of incorporation, bylaws or other organizational documents or (b)
any Material Agreements including any Related Transaction
Documents, in each case, except as expressly permitted in
Section 7.12(b) or
in any manner that would not have an adverse effect on the Lenders,
the Administrative Agent, the Borrowers or any of their
Subsidiaries.
(a) Prepay, redeem,
repurchase or otherwise make any payment on any Indebtedness (other
than Permitted Subordinated Debt or the Obligations) prior to its
due date.
(b) (i) Prepay, redeem,
repurchase or otherwise acquire for value any Permitted
Subordinated Debt, or (ii) make any principal, interest or other
payments on any Permitted Subordinated Debt that is not expressly
permitted by the subordination provisions of the Subordinated Debt
Documents.
(c) Agree to or permit
any amendment, modification or waiver of any provision of any
Subordinated Debt Document if such amendment is not permitted under
the applicable Subordination Agreement with respect
thereto.
. Make
any significant change in accounting treatment or reporting
practices, except as required by GAAP, or change the fiscal year of
the Loan Parties or of any of their Subsidiaries, except to change
the fiscal year of a Subsidiary to conform its fiscal year to that
of the Borrowers.
. Create or suffer to exist any
obligations for the payment under operating leases or agreements to
lease (but excluding any obligations under leases required to be
classified as capital leases under GAAP having a term of five years
or more) which would cause the present value of the direct or
contingent liabilities of the Loan Parties and their Subsidiaries
under such leases or agreements to lease, on a consolidated basis,
to exceed $250,000 in the aggregate in any Fiscal
Year.
. (a)
Be or become subject at any time to any law, regulation or list of
any Governmental Authority of the United States (including the OFAC
list) that prohibits or limits the Lenders or the Administrative
Agent from making any advance or extension of credit to the
Borrowers or from otherwise conducting business with the Loan
Parties, or (b) fail to provide documentary and other evidence of
the identity of the Loan Parties as may be requested by the Lenders
or the Administrative Agent at any time to enable the Lenders or
the Administrative Agent to verify the identity of the Loan Parties
or to comply with any applicable law or regulation, including,
Section 326 of the Patriot Act at 31 U.S.C. Section
5318.
ARTICLE VIII
. The
occurrence of one or more of the following events shall constitute
an "Event of
Default":
(a) the Loan Parties
shall fail to pay any of the Obligations within three (3) Business
Days of the due date thereof (whether due at stated maturity, on
demand, upon acceleration or otherwise); or
(b) any representation
or warranty made or deemed made by or on behalf of any Loan Party
or any of its Subsidiaries in or in connection with this Agreement
or any other Loan Document (including the Schedules attached hereto
and thereto), or in any amendments or modifications hereof or
waivers hereunder, or in any certificate, report, financial
statement or other document submitted to the Administrative Agent
or the Lenders by any Loan Party or any representative of any Loan
Party pursuant to or in connection with this Agreement or any other
Loan Document, shall prove to be incorrect in any material respect
(other than any representation or warranty that is expressly
qualified by a Material Adverse Effect or other materiality, in
which case such representation or warranty shall prove to be
incorrect in any respect) when made or deemed made or submitted;
or
(c) (i) any Loan Party
shall fail to observe or perform any covenant or agreement
contained in Section
5.2 or 5.3
(with respect to each Loan Party’s legal existence),
5.7, 5.8, 5.9, 5.10, 5.11, 5.12, 5.13 or 5.14 or Article VI or VII or (ii) any Loan Party
shall fail to observe or perform any covenant or agreement
contained in Section
5.1 or 5.5
and such failure shall remain unremedied for three (3) Business
Days; or
(d) any Loan Party
shall fail to observe or perform any covenant or agreement
contained in this Agreement (other than those referred to in
Sections 8.1(a),
8.1(b) and
8.1(c)) or any
other Loan Document or related to any Secured Bank Product
Obligation, and such failure shall remain unremedied for
30 days after the earlier of (i) any Responsible Officer
of any Loan Party becomes aware of such failure, or (ii) notice
thereof shall have been given to the Borrower Representative by the
Administrative Agent or any Lender; or
(e) any default or
event of default (after giving effect to any applicable grace
period) shall have occurred and be continuing under any
Subordinated Debt Documents evidencing or related to Permitted
Subordinated Debt in excess of $250,000 or any Subordinated Debt
Document evidencing or related to Permitted Subordinated Debt in
excess of $250,000 shall cease to be in full force and effect or
the validity or enforceability thereof is disaffirmed by or on
behalf of any subordinated lender party thereto, or any Obligations
fail to constitute senior indebtedness for purposes of any
Subordination Agreement, or all or any part of the Permitted
Subordinated Debt in excess of $250,000 is accelerated, is declared
to be due and payable or is required to be prepaid or redeemed, in
each case prior to the stated maturity thereof; or
(f) (i) any Loan Party
or any of its Subsidiaries (whether as primary obligor or as
guarantor or other surety) shall fail to pay any principal of, or
premium or interest on, any Material Indebtedness (other than any
Hedging Obligation) that is outstanding, when and as the same shall
become due and payable (whether at scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure
shall continue after the applicable grace period, if any, specified
in the agreement or instrument evidencing or governing such
Material Indebtedness; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any
Material Indebtedness and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the
effect of such event or condition is to accelerate, or permit the
acceleration of, the maturity of such Material Indebtedness; or any
Material Indebtedness shall be declared to be due and payable, or
required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or
defeased, or any offer to prepay, redeem, purchase or defease such
Material Indebtedness shall be required to be made, in each case
prior to the stated maturity thereof; or (ii) there occurs under
any Hedging Transaction an Early Termination Date (as defined in
such Hedging Transaction) resulting from (A) any event of default
under such Hedging Transaction as to which any Loan Party or any of
its Subsidiaries is the Defaulting Party (as defined in such
Hedging Transaction) and the Hedge Termination Value owed by such
Loan Party or such Subsidiary as a result thereof is greater than
the Threshold Amount or (B) any Termination Event (as so defined)
under such Hedging Transaction as to which any Loan Party or any of
its Subsidiaries is an Affected Party (as so defined) and, in
either event, the Hedge Termination Value owed by such Loan Party
or such Subsidiary as a result thereof is greater than $250,000 and
is not paid; or
(g) any Loan Party or
any of its Subsidiaries shall (i) commence a voluntary case or
other proceeding or file any petition seeking liquidation,
reorganization or other relief under any federal, state or foreign
bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a custodian, trustee,
receiver, liquidator or other similar official of it or any
substantial part of its property, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in Section 8.1(i), (iii) apply for
or consent to the appointment of a custodian, trustee, receiver,
liquidator or other similar official for any Loan Party or any such
Subsidiary or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment
for the benefit of creditors, or (vi) take any action for the
purpose of effecting any of the foregoing; or
(h) an involuntary
proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in
respect of any Loan Party or any of its Subsidiaries or its debts,
or any substantial part of its assets, under any federal, state or
foreign bankruptcy, insolvency or other similar law now or
hereafter in effect or (ii) the appointment of a custodian,
trustee, receiver, liquidator or other similar official for any
Loan Party or any of its Subsidiaries or for a substantial part of
its assets and, in any such case, such proceeding or petition shall
remain undismissed for a period of forty-five (45) days or an order
or decree approving or ordering any of the foregoing shall be
entered; or
(i) any Loan Party or
any of its Subsidiaries shall become unable to pay, shall admit in
writing its inability to pay, or shall fail to pay, its debts as
they become due; or
(j) an ERISA Event
shall have occurred that, in the Administrative Agent’s
reasonable determination, when taken together with other ERISA
Events that have occurred, could reasonably be expected to result
in liability to any Loan Party and its Subsidiaries in an aggregate
amount exceeding $250,000, (ii) there is or arises an Unfunded
Pension Liability (not taking into account Plans with negative
Unfunded Pension Liability) in an aggregate amount exceeding
$250,000, or (iii) there is or arises any potential Withdrawal
Liability in an aggregate amount exceeding $250,000;
or
(k) any judgment, writ,
warrant of attachment or similar process requiring any Loan Party
to pay involving an amount in excess of $250,000 in the aggregate
which is not fully covered by insurance with respect to which the
applicable insurer has accepted responsibility in writing shall be
rendered against any Loan Party or any of its Subsidiaries, and
either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be a
period of thirty (30) consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or
(l) any non-monetary judgment or order shall be
rendered against any Loan Party or any of its Subsidiaries that
could reasonably be expected, either individually or in the
aggregate, to have a Material Adverse Effect, and there shall be a
period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(m) a Change in Control
shall occur or exist; or
(n) any provision of
the Security Agreement or any other Loan Document shall for any
reason cease in any material respect to be valid and binding on, or
enforceable against, any Loan Party, or any Loan Party shall so
state in writing, or any Loan Party shall seek to terminate its
obligation under the Security Agreement or any other Loan Document
(other than the release of any guaranty or collateral to the extent
permitted pursuant to Section 9.11); or
(o) any Lien purported
to be created under any Collateral Document shall fail or cease to
be, or shall be asserted by any Loan Party not to be, a valid and,
other than as a result of any action or inaction by the
Administrative Agent or any Lender or as expressly permitted under
the Loan Documents, perfected Lien on any Collateral, with the
priority required by the applicable Collateral Documents;
or
(p) a Lien for the
performance of work or the supply of materials is filed against the
Office Project Premises and such Lien remains in place for ten (10)
days without evidence of satisfaction by the Loan Party, or any
stop notice is served on any Loan Party, Contractor or the
Administrative Agent; or
(q) prior to the
Completion Date, the Contractor or any major subcontractor under
contract to work on the Office Project Improvements files (or has
filed against it) a proceeding of the type described in clause (g)
or (h) of this Section
8.1 and the Loan Parties fail to procure a contract or
subcontract with a new substitute Contractor or subcontractor
satisfactory to the Administrative Agent within thirty (30) days
from the occurrence of such event; or
(r) any Loan Party
defaults in any material respect under the General Contract or
other material Office Project Contract and such default continues
unremedied for ten (10) consecutive days; or
(s) any Loan Party
defaults in any material respect under the Franchise Agreements
and, in the case of non-payment defaults, such default continues
unremedied for ten (10) consecutive days.
Upon
the occurrence and during the continuance of an Event of Default
(other than an Event of Default with respect to any Loan Party
described in subsections (g) and (h) of this Section), the
Administrative Agent may, and upon the written request of the
Required Lenders shall, by notice to the Borrower Representative,
take any or all of the following actions, at the same or different
times: (i) terminate the Commitments, whereupon the Commitment of
each Lender shall terminate immediately, (ii) declare the principal
of and any accrued interest on the Loans, and all other Obligations
owing hereunder, to be, whereupon the same shall become, due and
payable immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Loan
Parties, (iii) exercise all remedies contained in any other Loan
Document pursuant to the terms thereof and (iv) exercise any other
remedies available at law or in equity; provided that, if an Event
of Default specified in subsections (g) and (h) shall occur with
respect to any Loan Party, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together
with accrued interest thereon, and all fees and all other
Obligations shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Loan Parties. Upon the occurrence
and during the continuance of an Event of Default, the
Administrative Agent may, and upon the written request of the
Required Lenders shall, by notice to the Borrower Representative,
take any or all of the following other actions, at the same or
different times: (x) exercise all remedies contained in any Loan
Document (including requiring that the Borrowers Cash Collateralize
their reimbursement obligations with respect to the Letters of
Credit in accordance with Section 2.24(g)) and (y) exercise any
other remedies available at law or in equity.
. All proceeds from each sale of, or
other realization upon, all or any part of the Collateral by any
Secured Party after an Event of Default arises may, at the option
of the Administrative Agent (and shall, upon the written request of
the Required Lenders) be applied as follows:
(a) first, to the reimbursable
expenses of the Administrative Agent incurred in connection with
such sale or other realization upon the Collateral, until the same
shall have been Paid in Full;
(b) second, to any Agent Advances
and to the fees, all amounts owed pursuant to Erroneous Payment
Subrogation Rights, and other reimbursable expenses of the
Administrative Agent, the Swingline Lender and the Issuing Bank
then due and payable pursuant to any of the Loan Documents, until
the same shall have been Paid in Full;
(c) third, to all reimbursable
expenses, if any, of the Lenders then due and payable pursuant to
any of the Loan Documents, until the same shall have been Paid in
Full;
(d) fourth, to additional cash
collateral for the aggregate amount of all outstanding Letters of
Credit until the aggregate amount of all cash collateral held by
the Administrative Agent pursuant to this Agreement is at least
103% of the LC Exposure;
(e) fifth, to the fees and interest
then due and payable under the terms of this Agreement (other than
any amounts owing to the Tranche A-1 Revolving Lenders), until the
same shall have been Paid in Full;
(f) sixth, to the aggregate
outstanding principal amount of the Tranche A Revolving Loans
(other than the Agent Advances) and the Term Loans, the LC Exposure
that is not cash collateralized under clause fourth above, the Net
Mark-to-Market Exposure of the Secured Hedging Obligations up to
the amount of any Hedge Reserve, until the same shall have been
Paid in Full, allocated pro
rata among the Secured Parties based on their respective
pro rata shares of the
aggregate amount of such Tranche A Revolving Loans and Term Loans,
LC Exposure, and Net Mark-to-Market Exposure of such Hedging
Obligations;
(g) seventh, to the Bank Product
Obligations (other than the Net Mark-to-Market Exposure of Hedging
Obligations up to the amount of any Bank Product Reserves) up to
the Bank Product Amount relating thereto;
(h) eighth, to the fees and
interest then due and payable under the terms of this Agreement to
the Tranche A-1 Revolving Lenders, until the same shall have been
Paid in Full;
(i) ninth, to the aggregate
outstanding principal amount of the Tranche A-1 Revolving Loans,
until the same shall have been Paid in Full;
(j) tenth, to any other Secured
Bank Product Obligations, including any Secured Bank Product
Obligations in excess of the Bank Product Amount therefor and
Secured Bank Product Obligations for which no Bank Product Amount
has been established;
(k) eleventh, to all other
Obligations; and
(l) twelfth, to the extent any
proceeds remain, to the Borrowers or as otherwise provided by a
court of competent jurisdiction.
All
amounts allocated pursuant to the foregoing clauses third, fifth, sixth, eighth and nineth to the applicable
Lenders as a result of amounts owed to the Lenders under the Loan
Documents shall be allocated among, and distributed to, the Lenders
pro rata based on their
respective Pro Rata Shares; provided that all amounts
allocated to that portion of the LC Exposure comprised of the
aggregate undrawn amount of all outstanding Letters of Credit
pursuant to clauses fourth and sixth shall be distributed to
the Administrative Agent, rather than to the Lenders, and held by
the Administrative Agent in an account in the name of the
Administrative Agent for the benefit of the Issuing Bank and the
Lenders as cash collateral for the LC Exposure, such account to be
administered in accordance with Section 2.24(g). All cash
collateral for LC Exposure shall be applied to satisfy drawings
under the Letters of Credit as they occur; if any amount remains on
deposit as cash collateral after all Letters of Credit have either
been fully drawn or expired, such remaining amount shall be applied
to other Obligations, if any, in the order set forth
above.
Notwithstanding the
foregoing, (i) no amount received from any Guarantor (including any
proceeds of any sale of, or other realization upon, all or any part
of the Collateral owned by such Guarantor) shall be applied to any
Excluded Swap Obligation of such Guarantor and (ii) Secured Bank
Product Obligations and Secured Hedging Obligations shall be
excluded from the application described above if the Administrative
Agent has not received written notice thereof, together with such
supporting documentation as the Administrative Agent may request,
from the Bank Product Provider or the Lender-Related Hedge
Provider, as the case may be. Each Bank Product Provider or
Lender-Related Hedge Provider that has given the notice
contemplated by the preceding sentence shall, by such notice, be
deemed to have acknowledged and accepted the appointment of the
Administrative Agent pursuant to the terms of Article IX hereof for itself
and its Affiliates as if a “Lender” party
hereto.
ARTICLE IX
(a) Each Lender
irrevocably appoints Truist Bank as the Administrative Agent and
authorizes it to take such actions on its behalf and to exercise
such powers as are delegated to the Administrative Agent under this
Agreement and the other Loan Documents, together with all such
actions and powers that are reasonably incidental thereto. The
Administrative Agent may perform any of its duties hereunder or
under the other Loan Documents by or through any one or more
sub-agents or attorneys-in-fact appointed by the Administrative
Agent. The Administrative Agent and any such sub-agent or
attorney-in-fact may perform any and all of its duties and exercise
its rights and powers through their respective Related Parties. The
exculpatory provisions set forth in this Article IX shall apply to any
such sub-agent, attorney-in-fact or Related Party and shall apply
to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities
as the Administrative Agent.
(b) The Issuing Bank
shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith until
such time and except for so long as the Administrative Agent may
agree at the request of the Required Lenders to act for the Issuing
Bank with respect thereto; provided that the Issuing Bank
shall have all the benefits and immunities (i) provided to the
Administrative Agent in this Article IX with respect to any
acts taken or omissions suffered by the Issuing Bank in connection
with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining
to the Letters of Credit as fully as if the term
“Administrative Agent” as used in this Article IX included the Issuing
Bank with respect to such acts or omissions and (ii) as
additionally provided in this Agreement with respect to the Issuing
Bank.
. The
Administrative Agent shall not have any duties or obligations
except those expressly set forth in this Agreement and the other
Loan Documents. Without limiting the generality of the foregoing,
(a) the Administrative Agent shall not be subject to any fiduciary
or other implied duties, regardless of whether a Default or an
Event of Default has occurred and is continuing; (b) the
Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except
those discretionary rights and powers expressly contemplated by the
Loan Documents that the Administrative Agent is required to
exercise in writing by the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.2); provided that the
Administrative Agent shall not be required to take any action that,
in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan
Document or applicable law, including, for the avoidance of doubt,
any action that may be in violation of the automatic stay under any
Debtor Relief Law or that may effect a forfeiture, modification or
termination of property of a Defaulting Lender in violation of any
Debtor Relief Law; and (c) except as expressly set forth in the
Loan Documents, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any
information relating to any Loan Party or any Subsidiary that is
communicated to or obtained by the Administrative Agent or any of
its Affiliates in any capacity. The Administrative Agent shall not
be liable for any action taken or not taken by it, its sub-agents
or its attorneys-in-fact with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders
as shall be necessary under the circumstances as provided in
Section 10.2) or in
the absence of its own gross negligence or willful misconduct as
determined by a court of competent jurisdiction in a final,
non-appealable judgment. The Administrative Agent shall not be
responsible for the negligence or misconduct of any sub-agents or
attorneys-in-fact except to the extent that a court of competent
jurisdiction determines in a final and non-appealable judgment that
the Administrative Agent acted with gross negligence or willful
misconduct in the selection of such sub-agents or
attorneys-in-fact. The Administrative Agent shall not be deemed to
have knowledge of any Default or Event of Default unless and until
written notice thereof (which notice shall include an express
reference to such event being a “Default” or an
“Event of Default” hereunder) is given to the
Administrative Agent by the Borrower Representative or any Lender,
and the Administrative Agent shall not be responsible for or have
any duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with any Loan Document,
(ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or
therewith, (iii) the performance or observance of any of the
covenants, agreements, or other terms and conditions set forth in
any Loan Document, (iv) the validity, enforceability, effectiveness
or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition
set forth in Article
III or elsewhere in any Loan Document, other than to confirm
receipt of items expressly required to be delivered to the
Administrative Agent. The Administrative Agent may consult with
legal counsel (including counsel for the Loan Parties) concerning
all matters pertaining to such duties.
. Each
of the Lenders, the Swingline Lender and the Issuing Bank
acknowledges that it has, independently and without reliance upon
the Administrative Agent, the Issuing Bank or any other Lender and
based on such documents and information as it has deemed
appropriate, made its own credit analysis, appraisals and decision
to enter into this Agreement. Each of the Lenders, the Swingline
Lender and the Issuing Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent,
the Issuing Bank or any other Lender and based on such documents
and information as it has deemed appropriate, continue to make its
own credit analysis, appraisals and decisions in taking or not
taking any action under or based on this Agreement, any related
agreement or any document furnished hereunder or
thereunder.
. If
the Administrative Agent shall request instructions from the
Required Lenders with respect to any action or actions (including
the failure to act) in connection with this Agreement, the
Administrative Agent shall be entitled to refrain from such act or
taking such act unless and until it shall have received
instructions from such Lenders, and the Administrative Agent shall
not incur liability to any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of
action whatsoever against the Administrative Agent as a result of
the Administrative Agent acting or refraining from acting hereunder
in accordance with the instructions of the Required Lenders where
required by the terms of this Agreement.
. The
Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other
writing (including any electronic message, posting or other
distribution) believed by it to be genuine and to have been signed,
sent or made by the proper Person. The Administrative Agent also
may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person and shall not incur
any liability for relying thereon. The Administrative Agent may
consult with legal counsel (including counsel for the Loan
Parties), independent public accountants and other experts selected
by it and shall not be liable for any action taken or not taken by
it in accordance with the advice of such counsel, accountants or
experts.
. The
bank serving as the Administrative Agent shall have the same rights
and powers under this Agreement and any other Loan Document in its
capacity as a Lender as any other Lender and may exercise or
refrain from exercising the same as though it were not the
Administrative Agent; and the terms “Lenders”,
“Required Lenders”, “Supermajority Revolving
Lenders”, or any similar terms shall, unless the context
clearly otherwise indicates, include the Administrative Agent in
its individual capacity. The bank acting as the Administrative
Agent and its Affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with any Loan Party or
any Subsidiary or Affiliate of any Loan Party as if it were not the
Administrative Agent hereunder.
(a) The Administrative
Agent may resign at any time by giving notice thereof to the
Lenders and the Borrower Representative. Upon any such resignation,
the Required Lenders shall have the right to appoint a successor
Administrative Agent, subject to approval by the Borrower
Representative so long as no Default or Event of Default shall
exist at such time. If no successor Administrative Agent shall have
been so appointed, and shall have accepted such appointment within
30 days after the retiring Administrative Agent gives notice
of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent
which shall be a commercial bank organized under the laws of the
United States or any state thereof or a commercial bank which
maintains an office in the United States. Any resignation by the
Administrative Agent pursuant to this Section shall also constitute
its resignation as an Issuing Bank and Swingline Lender. Upon the
acceptance of a successor’s appointment as Administrative
Agent hereunder: (i) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties
of the retiring Issuing Bank and Swingline Lender; (ii) the
retiring Issuing Bank and Swingline Lender shall be discharged from
all of their respective duties and obligations hereunder or under
the other Loan Documents; and (iii) the successor Issuing
Lender shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such
succession or make other arrangement satisfactory to the retiring
Issuing Bank to effectively assume the obligations of the retiring
Issuing Bank with respect to such Letters of Credit.
(b) Upon the acceptance
of its appointment as the Administrative Agent hereunder by a
successor, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be
discharged from its duties and obligations under this Agreement and
the other Loan Documents. If, within 45 days after written notice
is given of the retiring Administrative Agent’s resignation
under this Section
9.7, no successor Administrative Agent shall have been
appointed and shall have accepted such appointment, then on such
45th day
(i) the retiring Administrative Agent’s resignation shall
become effective, (ii) the retiring Administrative Agent shall
thereupon be discharged from its duties and obligations under the
Loan Documents and (iii) the Required Lenders shall thereafter
perform all duties of the retiring Administrative Agent under the
Loan Documents until such time as the Required Lenders appoint a
successor Administrative Agent as provided above. After any
retiring Administrative Agent’s resignation hereunder, the
provisions of this Article
IX shall continue in effect for the benefit of such retiring
Administrative Agent and its representatives and agents in respect
of any actions taken or not taken by any of them while it was
serving as the Administrative Agent.
(c) In addition to the
foregoing, if a Lender becomes, and during the period it remains, a
Defaulting Lender, and if any Default or Event Default has arisen
from a failure of the Borrowers to comply with Section 2.28(b), then the
Issuing Bank and the Swingline Lender may, upon prior written
notice to the Borrower Representative and the Administrative Agent,
resign as Issuing Bank or as Swingline Lender, as the case may be,
effective at the close of business, Charlotte, North Carolina time,
on a date specified in such notice (which date may not be less than
five (5) Business Days after the date of such notice).
. To
the extent required by any applicable law, the Administrative Agent
may withhold from any interest payment to any Lender an amount
equivalent to any applicable withholding tax. If the Internal
Revenue Service or any authority of the United States or any other
jurisdiction asserts a claim that the Administrative Agent did not
properly withhold tax from amounts paid to or for the account of
any Lender (because the appropriate form was not delivered or was
not properly executed, or because such Lender failed to notify the
Administrative Agent of a change in circumstances that rendered the
exemption from, or reduction of, withholding tax ineffective, or
for any other reason), such Lender shall indemnify the
Administrative Agent (to the extent that the Administrative Agent
has not already been reimbursed by the Borrowers and without
limiting the obligation of the Borrowers to do so) fully for all
amounts paid, directly or indirectly, by the Administrative Agent
as tax or otherwise, including penalties and interest, together
with all expenses incurred, including legal expenses, allocated
staff costs and any out of pocket expenses.
(a) In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Loan Party, the Administrative
Agent (irrespective of whether the principal of any Loan or any
Revolving Credit Exposure shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the
Borrowers) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(i) to
file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans or Revolving
Credit Exposure and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable
in order to have the claims of the Lenders, the Issuing Bank and
the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders,
the Issuing Bank and the Administrative Agent and its agents and
counsel and all other amounts due the Lenders, the Issuing Bank and
the Administrative Agent under Section 10.3) allowed in such
judicial proceeding; and
(ii) to
collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the
same.
(b) Any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby
authorized by each Lender and the Issuing Bank to make such
payments to the Administrative Agent and, if the Administrative
Agent shall consent to the making of such payments directly to the
Lenders and the Issuing Bank, to pay to the Administrative Agent
any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative
Agent under Section
10.3.
Nothing
contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of
any Lender or the Issuing Bank any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or
the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such
proceeding.
. Each
Lender hereby authorizes the Administrative Agent to execute on
behalf of all Lenders all Loan Documents (including the Collateral
Documents and any subordination agreements) other than this
Agreement.
The
Lenders irrevocably authorize the Administrative Agent, at its
option and in its discretion:
(a) to release any Lien
on any property granted to or held by the Administrative Agent
under any Loan Document (i) upon the Payment in Full of the
Obligations, (ii) that is sold or to be sold as part of or in
connection with any sale permitted hereunder or under any other
Loan Document, or (iii) if approved, authorized or ratified in
writing in accordance with Section 10.2;
(b) to release any Loan
Party from its obligations under the applicable Collateral
Documents if such Person ceases to be a Subsidiary as a result of a
transaction expressly permitted hereunder; and
(c) to subordinate its
Lien to any purchase money Lien or other Lien entitled to priority
hereunder.
Upon
request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent’s
authority to release its interest in particular types or items of
property, or to release any Loan Party from its obligations under
the applicable Collateral Documents pursuant to this Section 9.11. In each case as
specified in this Section
9.11, the Administrative Agent is authorized, at the
Borrowers’ expense, to execute and deliver to the applicable
Loan Party such documents as such Loan Party may reasonably request
to evidence the release of such item of Collateral from the Liens
granted under the applicable Collateral Documents, or to release
such Loan Party from its obligations under the applicable
Collateral Documents, in each case in accordance with the terms of
the Loan Documents and this Section 9.11.
Each
Lender hereby designates Truist Securities, Inc. as Lead Arranger
and agrees that the Lead Arranger shall have no duties or
obligations under any Loan Documents to any Lender or any Loan
Party.
.
Anything contained in any of the Loan Documents to the contrary
notwithstanding, the Borrowers, on behalf of themselves and the
other Loan Parties, the Administrative Agent and each Lender hereby
agree that (i) no Lender shall have any right individually to
realize upon any of the Collateral or to enforce the Collateral
Documents, it being understood and agreed that all powers, rights
and remedies hereunder and under the Collateral Documents may be
exercised solely by the Administrative Agent, and (ii) in the event
of a foreclosure by the Administrative Agent on any of the
Collateral pursuant to a public or private sale or other
disposition, the Administrative Agent or any Lender may be the
purchaser or licensor of any or all of such Collateral at any such
sale or other disposition and the Administrative Agent, as agent
for and representative of the Lenders (but not any Lender or
Lenders in its or their respective individual capacities unless the
Required Lenders shall otherwise agree in writing), shall be
entitled, for the purpose of bidding and making settlement or
payment of the purchase price for all or any portion of the
Collateral sold at any such public sale, to use and apply any of
the Obligations as a credit on account of the purchase price for
any Collateral payable by the Administrative Agent at such sale or
other disposition.
. No
Bank Product Provider or Lender-Related Hedge Provider that obtains
the benefits of Section
8.2, the Collateral Documents or any Collateral by virtue of
the provisions hereof or of any other Loan Document shall have any
right to notice of any action or to consent to, direct or object to
any action hereunder or under any other Loan Document or otherwise
in respect of the Collateral (including the release or impairment
of any Collateral) other than in its capacity as a Lender and, in
such case, only to the extent expressly provided in the Loan
Documents. Notwithstanding any other provision of this Article IX to the contrary, the
Administrative Agent shall not be required to verify the payment
of, or that other satisfactory arrangements have been made with
respect to, Secured Bank Product Obligations and Secured Hedging
Obligations unless the Administrative Agent has received written
notice of such Obligations, together with such supporting
documentation as the Administrative Agent may request, from the
applicable Bank Product Provider or Lender-Related Hedge Provider,
as the case may be.
(a) If the
Administrative Agent notifies a Lender, Issuing Bank or other
Secured Party, or any Person who has received funds on behalf of a
Lender, Issuing Bank or other Secured Party (any such Lender,
Issuing Bank, other Secured Party or other recipient, a
“Payment
Recipient”) that the Administrative Agent has
determined in its sole discretion (whether or not after
receipt of any notice under immediately succeeding clause (b)) that any funds
received by such Payment Recipient from the Administrative Agent or
any of its Affiliates were erroneously transmitted to, or otherwise
erroneously or mistakenly received by, such Payment Recipient
(whether or not known to such Lender, Issuing Bank, other Secured
Party or other Payment Recipient on its behalf) (any such funds,
whether received as a payment, prepayment or repayment of
principal, interest, fees, distribution or otherwise, individually
and collectively, an “Erroneous
Payment”) and
demands the return of such Erroneous Payment (or a portion
thereof), such Erroneous Payment shall at all times remain the
property of the Administrative Agent and shall be segregated by
such Payment Recipient and held in trust for the benefit of the
Administrative Agent, and such Lender, Issuing Bank or other
Secured Party shall (or, with respect to any Payment Recipient who
received such funds on its behalf, shall cause such Payment
Recipient to) promptly, but in no event later than two Business
Days thereafter, return to the Administrative Agent the amount of
any such Erroneous Payment (or portion thereof) as to which such a
demand was made, in same day funds (in the currency so received),
together with interest thereon in respect of each day from and
including the date such Erroneous Payment (or portion thereof) was
received by such Payment Recipient to the date such amount is
repaid to the Administrative Agent in same day funds at the greater
of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on
interbank compensation from time to time in effect. A notice of the
Administrative Agent to any Payment Recipient under this
clause (a) shall be
conclusive, absent manifest error.
(b) Without limiting
immediately preceding clause (a), each Lender,
Issuing Bank or other Secured Party, or any Person who has received
funds on behalf of a Lender, Issuing Bank or other Secured Party,
hereby further agrees that if it receives a payment,
prepayment or repayment (whether received as a payment, prepayment
or repayment of principal, interest, fees, distribution or
otherwise) from the Administrative Agent (or any of its Affiliates)
(x) that is in a different amount than, or on a different date
from, that specified in a notice of payment, prepayment or
repayment sent by the Administrative Agent (or any of its
Affiliates) with respect to such payment, prepayment or repayment,
(y) that was not preceded or accompanied by a notice of payment,
prepayment or repayment sent by the Administrative Agent (or any of
its Affiliates), or (z) that such Lender, Issuing Bank or other
Secured Party, or other such recipient, otherwise becomes aware was
transmitted, or received, in error or by mistake (in whole or in
part) in each case:
(i) (A) in the case of
immediately preceding clauses (x) or (y), an error shall be presumed
to have been made (absent written confirmation from the
Administrative Agent to the contrary) or (B) an error has been made
(in the case of immediately preceding clause (z)), in each case, with
respect to such payment, prepayment or repayment; and
(ii) such
Lender, Issuing Bank or other Secured Party shall (and shall cause
any other recipient that receives funds on its respective behalf
to) promptly (and, in all events, within one Business Day of its
knowledge of such error) notify the Administrative Agent of its
receipt of such payment, prepayment or repayment, the details
thereof (in reasonable detail) and that it is so notifying the
Administrative Agent pursuant to this Section 9.15(b).
(c) Each Lender,
Issuing Bank or other Secured Party hereby authorizes the
Administrative Agent to set off, net and apply any and all amounts
at any time owing to such Lender, Issuing Bank or other Secured
Party under any Loan Document, or otherwise payable or
distributable by the Administrative Agent to such Lender, Issuing
Bank or other Secured Party from any source, against any amount due
to the Administrative Agent under immediately preceding
clause (a) or under
the indemnification provisions of this Agreement.
(d) In the event that
an Erroneous Payment (or portion thereof) is not recovered by the
Administrative Agent for any reason, after demand therefor by the
Administrative Agent in accordance with immediately preceding
clause (a), from
any Lender or Issuing Bank that has received such Erroneous Payment
(or portion thereof) (and/or from any Payment Recipient who
received such Erroneous Payment (or portion thereof) on its
respective behalf) (such unrecovered amount, an “Erroneous Payment Return
Deficiency”), upon the Administrative Agent’s
notice to such Lender or Issuing Lender at any time, (i) such
Lender or Issuing Bank shall be deemed to have assigned its Loans
(but not its Commitments) of the relevant Class with respect to
which such Erroneous Payment was made (the “Erroneous Payment Impacted
Class”) in an amount equal to the Erroneous Payment
Return Deficiency (or such lesser amount as the Administrative
Agent may specify) (such assignment of the Loans (but not
Commitments) of the Erroneous Payment Impacted Class, the
“Erroneous Payment
Deficiency Assignment”) at par plus any accrued and
unpaid interest (with the assignment fee to be waived by the
Administrative Agent in such instance), and is hereby (together
with the Borrowers) deemed to execute and deliver an Assignment and
Assumption (or, to the extent applicable, an agreement
incorporating an Assignment and Assumption by reference pursuant to
a platform as to which the Administrative Agent and such parties
are participants) with respect to such Erroneous Payment Deficiency
Assignment, and such Lender or Issuing Bank shall deliver any
promissory notes evidencing such Loans to the Borrowers or the
Administrative Agent, (ii) the Administrative Agent as the assignee
Lender shall be deemed to acquire the Erroneous Payment Deficiency
Assignment, (iii) upon such deemed acquisition, the Administrative
Agent as the assignee Lender shall become a Lender or Issuing Bank,
as applicable, hereunder with respect to such Erroneous Payment
Deficiency Assignment and the assigning Lender or assigning Issuing
Bank shall cease to be a Lender or Issuing Bank, as applicable,
hereunder with respect to such Erroneous Payment Deficiency
Assignment, excluding, for the avoidance of doubt, its obligations
under the indemnification provisions of this Agreement and its
applicable Commitments which shall survive as to such assigning
Lender or assigning Issuing Bank, and (iv) the Administrative Agent
may reflect in the Register its ownership interest in the Loans
subject to the Erroneous Payment Deficiency Assignment. The
Administrative Agent may, in its discretion, sell any Loans
acquired pursuant to an Erroneous Payment Deficiency Assignment and
upon receipt of the proceeds of such sale, the Erroneous Payment
Return Deficiency owing by the applicable Lender or Issuing Bank
shall be reduced by the net proceeds of the sale of such Loan (or
portion thereof), and the Administrative Agent shall retain all
other rights, remedies and claims against such Lender or Issuing
Bank (and/or against any recipient that receives funds on its
respective behalf). For the avoidance of doubt, no Erroneous
Payment Deficiency Assignment will reduce the Commitments of any
Lender or Issuing Bank and such Commitments shall remain available
in accordance with the terms of this Agreement. In addition, each
party hereto agrees that, except to the extent that the
Administrative Agent has sold a Loan (or portion thereof) acquired
pursuant to an Erroneous Payment Deficiency Assignment, and
irrespective of whether the Administrative Agent may be equitably
subrogated, the Administrative Agent shall be contractually
subrogated to all the rights and interests of the applicable
Lender, Issuing Bank or other Secured Party under the Loan
Documents with respect to each Erroneous Payment Return Deficiency
(the “Erroneous Payment
Subrogation Rights”).
(e) The parties hereto
agree that an Erroneous Payment shall not pay, prepay, repay,
discharge or otherwise satisfy any Obligations owed by any Borrower
or any other Loan Party, except, in each case, to the extent such
Erroneous Payment is, and solely with respect to the amount of such
Erroneous Payment that is, comprised of funds received by the
Administrative Agent from any Borrower or any other Loan Party for
the purpose of making such Erroneous Payment.
(f) To the extent
permitted by applicable law, no Payment Recipient shall assert any
right or claim to an Erroneous Payment, and hereby waives, and is
deemed to waive, any claim, counterclaim, defense or right of
set-off or recoupment with respect to any demand, claim or
counterclaim by the Administrative Agent for the return of any
Erroneous Payment received, including without limitation waiver of
any defense based on “discharge for value” or any
similar doctrine.
Each
party’s obligations, agreements and waivers under this
Section 9.15 shall
survive the resignation or replacement of the Administrative Agent,
any transfer of rights or obligations by, or the replacement of, a
Lender or Issuing Bank, the termination of the Commitments
and/or the repayment, satisfaction or discharge of all Obligations
(or any portion thereof) under any Loan Document.
ARTICLE X
(a) Written Notices.
(i) Except
in the case of notices and other communications expressly permitted
to be given by telephone, all notices and other communications to
any party herein to be effective shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified
or registered mail or sent by telecopy, as follows:
To the
Borrowers:
HireQuest,
Inc.
111 Springhall
Drive
Goose
Creek, South Carolina 29445
Attention:
John D. McAnnar, CLO
Email:
jdmcannar@hirequest.com
To the
Administrative
Agent:
Truist
Bank
3333 Peachtree Road,
N.E.
4th
Floor, East Tower
Atlanta, Georgia
30326
Attention: Group
Portfolio Manager (HireQuest)
With a
copy to (for
information
purposes
only):
Truist
Bank
Agency Services
303
Peachtree Street, N.E., 25th Floor
Atlanta,
Georgia 30308
Attention:
Agency Services Manager
Telecopy
Number: (404) 221-2001
and
Parker,
Hudson, Rainer & Dobbs LLP
303
Peachtree Street, N.E.
Suite
3600
Atlanta, Georgia
30308
Attention: Bobbi
Acord Noland, Esq.
To the Issuing
Bank:
Truist
Bank
245
Peachtree Center Ave., 17th Floor
Atlanta, Georgia
30303
Attention: Standby
Letter of Credit Dept.
Telephone: (800)
951-7847
=
To the Swingline
Lender:
Truist
Bank
Agency
Services
303 Peachtree
Street, N.E., 25th Floor
Atlanta, Georgia
30308
Attention:
Agency Services Manager
Telecopy Number:
(404) 221-2001
To any other
Lender:
the address set
forth in the Administrative Questionnaire or the Assignment and
Acceptance executed by such Lender
Any
party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties
hereto.
(ii) Any
agreement of the Administrative Agent, the Issuing Bank or any
Lender herein to receive certain notices by telephone or facsimile
is solely for the convenience and at the request of the Borrowers.
The Administrative Agent, the Issuing Bank and each Lender shall be
entitled to rely on the authority of any Person purporting to be a
Person authorized by the Borrowers to give such notice and the
Administrative Agent, the Issuing Bank and the Lenders shall not
have any liability to any Borrower or any other Person on account
of any action taken or not taken by the Administrative Agent, the
Issuing Bank or any Lender in reliance upon such telephonic or
facsimile notice. The obligation of the Borrowers to repay the
Loans and all other Obligations shall not be affected in any way or
to any extent by any failure of the Administrative Agent, the
Issuing Bank or any Lender to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Administrative
Agent, the Issuing Bank or any Lender of a confirmation which is at
variance with the terms understood by the Administrative Agent, the
Issuing Bank and such Lender to be contained in any such telephonic
or facsimile notice.
(b) Electronic
Communications.
(i) Notices
and other communications to the Lenders and the Issuing Bank
hereunder may be delivered or furnished by electronic communication
(including e mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent; provided that the
foregoing shall not apply to notices to any Lender or the Issuing
Bank if such Lender or such Issuing Bank, as applicable, has
notified the Administrative Agent that it is incapable of
receiving, or is unwilling to receive, notices by electronic
communication. The Administrative Agent or the Borrowers may, in
its or their discretion, agree to accept notices and other
communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided that approval of
such procedures may be limited to particular notices or
communications.
(ii) Unless
the Administrative Agent otherwise prescribes, (A) notices and
other communications sent to an e-mail address shall be deemed
received upon the sender’s receipt of an acknowledgement from
the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other
written acknowledgement) and (B) notices or communications posted
to an Internet or intranet website shall be deemed received upon
the deemed receipt by the intended recipient at its e-mail address
as described in the foregoing clause (A) of notification that such
notice or communication is available and identifying the website
address therefor; provided that, in the case of clauses (A) and (B)
above, if such notice or other communication is not sent during the
normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of
business on the next Business Day for the recipient.
(iii) The
Borrowers agree that the Administrative Agent may, but shall not be
obligated to, make Communications (as defined below) available to
the Issuing Bank and the other Lenders by posting the
Communications on Debt Domain, Intralinks, Syndtrak, ClearPar or a
substantially similar electronic system.
(iv) THE
PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS
RELATED PARTIES WARRANT THE ACCURACY OR COMPLETENESS OF THE
BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY
DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS IN THE COMMUNICATIONS
(AS DEFINED BELOW) AND FROM THE BORROWER MATERIALS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT
OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS, IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED
PARTIES IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.
In no event shall the Administrative Agent or any of its Related
Parties have any liability to any Loan Party or any of their
respective Subsidiaries, any Lender, any Issuing Bank or any other
Person or entity for losses, claims, damages, liabilities or
expenses of any kind, including direct or indirect, special,
incidental or consequential damages, losses or expenses, whether or
not based on strict liability (whether in tort, contract or
otherwise), arising out of any Loan Party’s or the
Administrative Agent’s transmission of any field
examinations, audit, appraisal, or consultant report prepared for
the Administrative Agent or any Borrower Materials through the
Internet, except to the extent that such losses, claims, damages,
liabilities or expenses are determined by a court of competent
jurisdiction by a final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of the
Administrative Agent or such Related Party; provided , however,
that in no event shall the Administrative Agent or any Related
Party have any liability to any Loan Party or any of their
respective Subsidiaries, any Lender, any Issuing Bank or any other
Person for indirect, special, incidental, consequential or punitive
damages (as opposed to direct or actual damages) arising out of any
Loan Party’s or the Administrative Agent’s transmission
of Communications. “Communications” means,
collectively, any notice, demand, communication, information,
document or other material provided by or on behalf of any Loan
Party pursuant to any Loan Document or the transactions
contemplated therein which is distributed by the Administrative
Agent, any Lender or the Issuing Bank by means of electronic
communications pursuant to this Section, including through the
platform.
(c) Telephonic Notices. Unless
otherwise expressly provided herein, all notices and other
communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified
or registered mail or sent by telecopier or electronic mail as
follows, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if
to any other Loan Party, the Administrative Agent or an Issuing
Bank or, to the address, telecopier number, electronic mail address
or telephone number specified for such Person above or to such
other address, telecopier number, electronic mail address or
telephone number as shall be designated by such party in a notice
to the other parties hereto, as provided Section 10.1(d)
and
(ii) if
to any other Lender, to the address, telecopier number, electronic
mail address or telephone number specified in its Administrative
Questionnaire.
(d) Receipt of Notice. All such
notices and other communications sent to any party hereto in
accordance with the provisions of this Agreement or made upon the
earlier to occur of (i) actual receipt by the relevant party hereto
and (ii) (A) if delivered by hand or by courier, when signed for by
or on behalf of the relevant party hereto; (B) if delivered by
mail, four (4) Business Days after deposit in the mails, postage
prepaid; (C) if delivered by facsimile, when sent and receipt has
been confirmed by telephone; and (D) if delivered by electronic
mail, to the extent provided in clause (b) above and effective as
provided in such clause; provided that notices and other
communications to the Administrative Agent and an Issuing Bank
pursuant to Article II shall not be effective until actually
received by such Person. In no event shall a voice mail message be
effective as a notice, communication or confirmation
hereunder.
(e) Transmission of Documents. Loan
Documents may be transmitted and/or signed by facsimile or other
electronic communication. The effectiveness of any such documents
and signatures shall, subject to applicable law, have the same
force and effect as manually signed originals and shall be binding
on all Loan Parties, the Administrative Agent and the
Lenders.
(a) No
failure or delay by the Administrative Agent, the Issuing Bank or
any Lender in exercising any right or power hereunder or under any
other Loan Document, and no course of dealing between any Loan
Party and the Administrative Agent or any Lender, shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such right or
power, preclude any other or further exercise thereof or the
exercise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent, the Issuing Bank
and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies provided
by law. No amendment or waiver of any provision of this Agreement
or of any other Loan Document or consent to any departure by any
Loan Party therefrom shall in any event be effective unless the
same shall be permitted by Section 10.2(b), and then such
waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or the issuance
of a Letter of Credit shall not be construed as a waiver of any
Default or Event of Default, regardless of whether the
Administrative Agent, any Lender or the Issuing Bank may have had
notice or knowledge of such Default or Event of Default at the
time.
(b) Except as otherwise
provided in this Agreement, including as provided in Section 2.18 with respect to
the implementation of a Benchmark Replacement Rate or Benchmark
Conforming Changes (as set forth therein), no amendment or waiver
of any provision of this Agreement or of the other Loan Documents
(other than the Fee Letter), nor consent to any departure by any
Loan Party therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Borrowers and the
Required Lenders, or the Borrowers and the Administrative Agent
with the consent of the Required Lenders, and then such amendment,
waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided that, in addition to
the consent of the Required Lenders, no amendment, waiver or
consent shall:
(i) increase
any Commitment of any Lender, without the written consent of such
Lender;
(ii) reduce
the principal amount of any Loan or LC Disbursement, or reduce the
rate of interest thereon, or reduce any fees or other amounts
payable hereunder, without the written consent of each Lender
affected thereby (provided that a determination
to discontinue Default Interest, a waiver of any Default or Event
of Default, or an amendment to the criteria or definitions
affecting the calculation of “Availability” shall not
constitute a reduction of interest for this purpose);
(iii) postpone
the date fixed for any payment of any principal of, or interest on,
any Loan or LC Disbursement or any fees or other amounts hereunder,
or reduce the amount of, waive or excuse any such payment (other
than any amendment to Sections 2.14(a), 2.14(b), 2.14(e) or 2.14(f) or any waiver of any mandatory
prepayment thereunder), or postpone the scheduled date for the
termination or reduction of any Commitment, without the written
consent of each Lender affected thereby;
(iv) change
(A) Section 2.23(b)
or (c) in a manner
that would alter the pro
rata sharing of payments required thereby or (B) any other
provision of this Agreement or any of the other Loan Documents that
addresses the matters described in this clause (iv) or permit any
action which would directly or indirectly have the effect of
amending any of the provisions described in this clause (iv),
without the written consent of each Lender;
(v) change
(A) Section 2.10 in
a manner that would alter the pro
rata sharing of Commitment reductions required thereby, (B)
Section 8.2 in a
manner that would alter the pro
rata sharing of payments or the order of application
required thereby or (C) change any other provision of this
Agreement or any of the other Loan Documents that addresses the
matters described in this clause (v) or permit any action which
would directly or indirectly have the effect of amending any of the
provisions described in this clause (v), in each case, without the
written consent of each Lender;
(vi) change
any of the provisions of this Section 10.2(b) or the
definition of “Required Lenders” or
“Supermajority Revolving Lenders” or any other
provision hereof specifying the number or percentage of Lenders
which are required to waive, amend or modify any rights hereunder
or make any determination or grant any consent hereunder, without
the consent of each Lender;
(vii) release
all or substantially all of the Guarantors, or limit the liability
of such Guarantors, under any guaranty agreement guaranteeing any
of the Obligations, without the written consent of each
Lender;
(viii) release
all or substantially all Collateral securing any of the
Obligations, without the written consent of each
Lender;
(ix)
subordinate the payment priority of the Obligations or, except as
permitted under Section
9.11, subordinate the Liens granted to the Administrative
Agent (for the benefit of the Secured Parties) in the Collateral,
without the written consent of each Lender; or
(x) increase
the advance rate percentage specified in the definition of
“Borrowing Base” (or any defined term used in such
definition), without the written consent of each Lender;
or
(xi)
amend any other provision of the definition of “Borrowing
Base” (or any defined term used in such definition) if the
effect of such amendment would be to increase borrowing
availability, without the prior written consent of the
Supermajority Revolving Lenders; provided, that the foregoing shall
not impair the ability of the Administrative Agent to add, remove,
reduce or increase any Reserves.
provided, further, that no such
amendment, waiver or consent shall amend, modify or otherwise
affect the rights, duties or obligations of the Administrative
Agent, the Swingline Lender or the Issuing Bank without the prior
written consent of such Person.
(c) Notwithstanding
anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be
increased or extended, and amounts payable to such Lender hereunder
may not be permanently reduced, without the consent of such Lender
(other than reductions in fees and interest in which such reduction
does not disproportionately affect such Lender).
(d) Notwithstanding
anything to the contrary herein, this Agreement may be amended and
restated without the consent of any Lender (but with the consent of
the Borrowers and the Administrative Agent) if, upon giving effect
to such amendment and restatement, such Lender shall no longer be a
party to this Agreement (as so amended and restated), the
Commitments of such Lender shall have terminated (but such Lender
shall continue to be entitled to the benefits of Sections 2.20, 2.22 and 10.3), such Lender shall have
no other commitment or other obligation hereunder, and such Lender
shall have been paid in full all principal, interest and other
amounts owing to it or accrued for its account under this
Agreement.
(e) Notwithstanding
anything to the contrary herein, the Administrative Agent may, with
the consent of the Borrowers only, amend, modify or supplement any
Loan Document to cure any ambiguity, omission, mistake, defect or
inconsistency.
(a) The Borrowers
shall, jointly and severally, pay (i) all reasonable, out-of-pocket
costs and expenses of the Administrative Agent, the Lead Arranger
and their respective Affiliates (including, the reasonable fees,
charges and disbursements of counsel for the Administrative Agent
and its Affiliates) in connection with the syndication of the
credit facilities provided for herein, the preparation and
administration of the Loan Documents and any amendments,
modifications or waivers thereof (whether or not the transactions
contemplated in this Agreement or any other Loan Document shall be
consummated), including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent and its
Affiliates, (ii) all reasonable out-of-pocket costs and expenses
incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any
demand for payment thereunder, (iii) all out-of-pocket costs
and expenses (including the reasonable fees, charges and
disbursements consultants or of outside counsel and the allocated
cost of inside counsel) incurred by the Administrative Agent, the
Issuing Bank or any Lender in connection with the enforcement or
protection of its rights in connection with this Agreement,
including its rights under this Section 10.3, or in connection
with the Loans made or any Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or
Letters of Credit and (iv) without limiting the foregoing, all
out-of-pocket costs and expenses (A) of instituting, maintaining,
preserving, enforcing and foreclosing on Administrative
Agent’s security interest in or Lien on any of the
Collateral, or maintaining, preserving or enforcing any of
Administrative Agent’s rights hereunder or under any
Subordination Agreement and under all related agreements, documents
and instruments, whether through judicial proceedings or otherwise,
(B) in defending or prosecuting any actions or proceedings arising
out of or relating to Administrative Agent’s or
Lenders’ transactions with any Loan Party or any holder of
any Permitted Subordinated Debt or (C) in connection with any
advice given to Administrative Agent with respect to its rights and
obligations under this Agreement and all other Loan Documents and
any other related agreements, documents and instruments. For the
avoidance of doubt, the obligations of the Borrowers to pay all
such amounts described in the preceding sentence shall be part of
the Obligations. Borrowers acknowledge that counsel may provide
Administrative Agent with a benefit (such as a discount, credit or
accommodation for other matters) based on counsel’s overall
relationship with Administrative Agent, including fees paid
hereunder.
(b) The Borrowers
shall, jointly and severally, indemnify the Administrative Agent
(and any sub-agent thereof), the Lead Arranger, each Lender and the
Issuing Bank, and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”) against, and
hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the fees,
charges and disbursements of any counsel for any Indemnitee), and
shall indemnify and hold harmless each Indemnitee from all fees and
time charges and disbursements for attorneys who may be employees
of any Indemnitee, incurred by any Indemnitee or asserted against
any Indemnitee by any third party or by any Borrower or any other
Loan Party arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement, any other Loan
Document, any other Related Transaction Document or any agreement
or instrument contemplated hereby or thereby, the performance by
the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the transactions contemplated
hereby or thereby, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by
the Issuing Bank to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii)
any actual or alleged presence or Release of Hazardous Materials on
or from any property owned or operated by any Loan Party or any of
its Subsidiaries, or any Environmental Liability related in any way
to any Loan Party or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any
other theory, whether brought by a third party or by any Borrower
or any other Loan Party, and regardless of whether any Indemnitee
is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and
non-appealable judgment to have resulted from (x) the gross
negligence or willful misconduct of such Indemnitee or (y) a claim
brought by any Borrower or any other Loan Party against an
Indemnitee for a material breach of such Indemnitee’s
obligations hereunder or under any other Loan
Document.
(c) The Borrowers
shall, jointly and severally, pay, and hold the Administrative
Agent, the Lead Arranger, the Issuing Bank and each of the Lenders
harmless from and against, any and all present and future stamp,
documentary, and other similar taxes with respect to this Agreement
and any other Loan Documents, any collateral described therein or
any payments due thereunder, and save the Administrative Agent, the
Lead Arranger, the Issuing Bank and each Lender harmless from and
against any and all liabilities with respect to or resulting from
any delay or omission to pay such taxes.
(d) To the extent that
the Borrowers fail to pay any amount required to be paid to the
Administrative Agent, the Lead Arranger, the Issuing Bank or the
Swingline Lender under subsection (a), (b) or (c) hereof, each
Lender severally agrees to pay to the Administrative Agent, the
Lead Arranger, the Issuing Bank or the Swingline Lender, as the
case may be, such Lender’s pro rata share (in accordance with its
respective Revolving Commitment (or Revolving Credit Exposure, as
applicable) and Term Loan determined as of the time that the
unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided
that the unreimbursed expense or indemnified payment, claim,
damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent, the Lead
Arranger, the Issuing Bank or the Swingline Lender in its capacity
as such.
(e) To the extent
permitted by applicable law, no Loan Party shall assert, and each
Loan Party hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or
punitive damages (as opposed to actual or direct damages) arising
out of, in connection with or as a result of this Agreement, any
other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated therein, any Loan or any
Letter of Credit or the use of proceeds thereof; provided, that nothing in this clause (e)
shall relieve any Loan Party of any obligation it may have to
indemnify any Indemnitee against special, indirect, consequential
or punitive damages asserted against such Indemnitee by a third
party.
(f) All amounts due
under this Section
10.3 shall be payable promptly after written demand
therefor.
(a) The provisions of
this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrowers may not assign or
otherwise transfer any of their respective rights or obligations
hereunder without the prior written consent of the Administrative
Agent and each Lender, and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to
an assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section or (iii) by way of
pledge or assignment of a security interest subject to the
restrictions of subsection (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null
and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this
Section and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent and the
Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Any Lender may at
any time assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a
portion of its Commitments, Loans and other Revolving Credit
Exposure at the time owing to it); provided that any such
assignment shall be subject to the following
conditions:
(i) Minimum
Amounts.
(A) in
the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitments, Loans and other Revolving
Credit Exposure at the time owing to it or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved
Fund, no minimum amount need be assigned; and
(B) in
any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes
Loans and Revolving Credit Exposure outstanding thereunder) or, if
the applicable Commitment is not then in effect, the principal
outstanding balance of the Loans and Revolving Credit Exposure of
the assigning Lender subject to each such assignment (determined as
of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and
Acceptance, as of the Trade Date) shall not be less than $1,000,000
with respect to Term Loans and $5,000,000 with respect to Revolving
Loans and in minimum increments of $1,000,000, unless each of the
Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower Representative otherwise
consents (each such consent not to be unreasonably withheld or
delayed).
(ii) Proportionate
Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Agreement with
respect to the Loans, other Revolving Credit Exposure or the
Commitments assigned.
(iii) Required
Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this
Section and, in addition:
(A) the
consent of the Borrower Representative (such consent not to be
unreasonably withheld or delayed) and such consent to be deemed
given unless Borrowers object to such assignment in writing within
three (3) Business Days after having been given notice thereof)
shall be required unless (x) an Event of Default has occurred and is continuing at
the time of such assignment or (y) such assignment is to a Lender,
an Affiliate of such Lender or an Approved Fund of such
Lender;
(B) the
consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required;
and
(C) the
consent of the Issuing Bank (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment that
increases the obligation of the assignee to participate in exposure
under one or more Letters of Credit (whether or not then
outstanding), and the consent of the Swingline Lender (such consent
not to be unreasonably withheld or delayed) shall be required for
any assignment in respect of the Revolving
Commitments.
(iv) Assignment
and Acceptance. The parties to each assignment shall deliver
to the Administrative Agent (A) a duly executed Assignment and
Acceptance, (B) a processing and recordation fee of $3,500, (C) an
Administrative Questionnaire unless the assignee is already a
Lender and (D) the documents required under Section 2.22(g).
(v) No
Assignment to the certain Persons. No such assignment shall
be made to (A) any Borrower or any of the Borrowers’
Affiliates or Subsidiaries or (B) to any Defaulting Lender or any
of its Subsidiaries, or any Person who, upon becoming a Lender
hereunder, would constitute any of the foregoing Persons described
in this clause (B).
(vi) No
Assignment to Natural Persons. No such assignment shall be
made to a natural person.
(vii) Certain
Additional Payments. In connection with any assignment of
rights and obligations of any Defaulting Lender hereunder, no such
assignment shall be effective unless and until, in addition to the
other conditions thereto set forth herein, the parties to the
assignment shall make such additional payments to the
Administrative Agent in an aggregate amount sufficient, upon
distribution thereof as appropriate (which may be outright payment,
purchases by the assignee of participations or subparticipations,
or other compensating actions, including funding, with the consent
of the Borrower Representative and the Administrative Agent, the
applicable pro rata share
of Loans previously requested but not funded by the Defaulting
Lender, to each of which the applicable assignee and assignor
hereby irrevocably consent), to (x) pay and satisfy in full all
payment liabilities then owed by such Defaulting Lender to the
Administrative Agent, the Issuing Bank, the Swingline Lender and
each other Lender hereunder (and interest accrued thereon), and (y)
acquire (and fund as appropriate) its full pro rata share of all Loans and
participations in Letters of Credit and Swingline Loans.
Notwithstanding the foregoing, in the event that any assignment of
rights and obligations of any Defaulting Lender hereunder shall
become effective under applicable law without compliance with the
provisions of this paragraph, then the assignee of such interest
shall be deemed to be a Defaulting Lender for all purposes of this
Agreement until such compliance occurs.
Subject
to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the
effective date specified in each Assignment and Acceptance, the
assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Acceptance,
have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the assigning
Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 2.20,
2.22 and
10.3 with respect
to facts and circumstances occurring prior to the effective date of
such assignment; provided that, except to the
extent otherwise expressly agreed by the affected parties, no
assignment by a Defaulting Lender will constitute a waiver or
release of any claim of any party hereunder arising from such
Lender’s having been a Defaulting Lender. Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not
comply with this subsection shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this
Section. If the consent of the Borrower Representative to an
assignment is required hereunder (including a consent to an
assignment which does not meet the minimum assignment thresholds
specified above), the Borrower Representative shall be deemed to
have given its consent unless it shall object thereto by written
notice to the Administrative Agent within five (5) Business Days
after notice thereof has actually been delivered by the assigning
Lender (through the Administrative Agent) to the
Borrower.
(c) The Administrative
Agent, acting solely for this purpose as a non-fiduciary agent of
the Borrowers, shall maintain at one of its offices in Atlanta,
Georgia a copy of each Assignment and Acceptance delivered to it
and a register for the recordation of the names and addresses of
the Lenders, and the Commitments of, and principal amount of the
Loans and Revolving Credit Exposure owing to, each Lender pursuant
to the terms hereof from time to time (the “Register”). Information
contained in the Register with respect to any Lender shall be
available for inspection by such Lender at any reasonable time and
from time to time upon reasonable prior notice; information
contained in the Register shall also be available for inspection by
the Borrowers at any reasonable time and from time to time upon
reasonable prior notice. In establishing and maintaining the
Register, the Administrative Agent shall serve as the
Borrowers’ agent solely for tax purposes and solely with
respect to the actions described in this Section, and the Borrowers
hereby agree that, to the extent Truist Bank serves in such
capacity, Truist Bank and its officers, directors, employees,
agents, sub-agents and affiliates shall constitute
“Indemnitees”.
(d) Participations.
(i) Any
Lender may at any time, without the consent of, or notice to, the
Borrowers, the Administrative Agent, the Swingline Lender or the
Issuing Bank, sell participations to any Person (other than a
natural person, the Loan Party, any of the Loan Parties' Affiliates
or Subsidiaries) (each, a “Participant”) in all or a
portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the
Loans owing to it); provided that (i) such
Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations
and (iii) the Borrowers, the Administrative Agent, the Issuing
Bank, the Swingline Lender and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this
Agreement.
(ii) Any
agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement;
provided that such
agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment,
modification or waiver with respect to the following to the extent
affecting such Participant: (i) increase the Commitment of such
Lender; (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any
fees payable hereunder; (iii) postpone the date fixed for any
payment of any principal of, or interest on, any Loan or LC
Disbursement or any fees hereunder or reduce the amount of, waive
or excuse any such payment, or postpone the scheduled date for the
termination or reduction of any Commitment; (iv) change
Section 2.23(b) or
(c) in a manner
that would alter the pro
rata sharing of payments required thereby; (v) change any of
the provisions of Section
10.2(b) or the definition of “Required Lenders”
or “Supermajority Revolving Lenders” or any other
provision hereof specifying the number or percentage of Lenders
which are required to waive, amend or modify any rights hereunder
or make any determination or grant any consent hereunder; (vi)
release all or substantially all of the guarantors, or limit the
liability of such guarantors, under any guaranty agreement
guaranteeing any of the Obligations; or (vii) release all or
substantially all collateral (if any) securing any of the
Obligations. Subject to subsection (e) of this Section, the
Borrowers agree that each Participant shall be entitled to the
benefits of Sections
2.20 and 2.22 to the same extent as if
it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section; provided that such Participant
agrees to be subject to Section 2.26 as though it were
a Lender. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 10.7 as though it
were a Lender; provided that such Participant
agrees to be subject to Section 2.23 as though it were
a Lender.
(iii) Each
Lender that sells a participation shall, acting solely for this
purpose as a non-fiduciary agent of the Borrowers, maintain a
register in the United States on which it enters the name and
address of each Participant and the principal amounts (and stated
interest) of each Participant’s interest in the Loans or
other obligations under the Loan Documents (the “Participant Register”).
The entries in the Participant Register shall be conclusive, absent
manifest error, and such Lender shall treat each person whose name
is recorded in the Participant Register as the owner of such
participation for all purposes of this Agreement notwithstanding
any notice to the contrary. The Borrowers and the Administrative
Agent shall have inspection rights to such Participant Register
(upon reasonable prior notice to the applicable Lender) solely for
purposes of demonstrating that such Loans or other obligations
under the Loan Documents are in “registered form” for
purposes of the Code. For the avoidance of doubt, the
Administrative Agent (in its capacity as Administrative Agent)
shall have no responsibility for maintaining a Participant
Register.
(iv) A
Participant shall not be entitled to receive any greater payment
under Sections 2.20
and 2.22 than the
applicable Lender would have been entitled to receive with respect
to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrower
Representative’s prior written consent. A Participant shall
not be entitled to the benefits of Section 2.22 unless the Borrower
Representative is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the
Borrowers, to comply with Section 2.22(e) and
(f) as though it
were a Lender.
(e) Any Lender may at
any time pledge or assign a security interest in all or any portion
of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to
a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
(a) This
Agreement and the other Loan Documents and any claims, controversy,
dispute or cause of action (whether in contract or tort or
otherwise) based upon, arising out of or relating to this Agreement
or any other Loan Document (except, as to any other Loan Document,
as expressly set forth therein) and the transactions contemplated
hereby and thereby shall be construed in accordance with and be
governed by the law (without giving effect to the conflict of law
principles thereof of the State of Georgia.
(b) Each Borrower
hereby irrevocably and unconditionally submits, for itself and its
property, to the exclusive jurisdiction of the United States
District Court for the Northern District of Georgia, and of the
Business Case Division of the Fulton County Superior Court located
in Atlanta, Georgia, and of any appellate court from any thereof,
in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document or the transactions
contemplated hereby or thereby, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such District
Court or the Fulton County Superior Court or, to the extent permitted by
applicable law, such appellate court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law. Nothing in
this Agreement or any other Loan Document shall affect any right
that the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against any Borrower or its
properties in the courts of any jurisdiction.
(c) Each Borrower
irrevocably and unconditionally waives any objection which it
may now or hereafter have to the laying of venue of any such
suit, action or proceeding described in subsection (b) of this
Section and brought in any court referred to in subsection (b) of
this Section. Each of the parties hereto irrevocably waives, to the
fullest extent permitted by applicable law, the defense of an
inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Each party to this
Agreement irrevocably consents to the service of process in the
manner provided for notices in Section 10.1. Nothing in this
Agreement or in any other Loan Document will affect the right of
any party hereto to serve process in any other manner permitted by
law.
. EACH
PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
. In
addition to any rights now or hereafter granted under applicable
law and not by way of limitation of any such rights, each Lender
and the Issuing Bank shall have the right, at any time or from time
to time upon the occurrence and during the continuance of an Event
of Default, without prior notice to any Loan Party, any such notice
being expressly waived by the Loan Parties to the extent permitted
by applicable law, to set off and apply against all deposits
(general or special, time or demand, provisional or final) of the
Loan Parties at any time held or other obligations at any time
owing by such Lender and the Issuing Bank to or for the credit or
the account of the Loan Parties against any and all Obligations
held by such Lender or the Issuing Bank, as the case may be,
irrespective of whether such Lender or the Issuing Bank shall have
made demand hereunder and although such Obligations may be
unmatured; provided
that in the event
that any Defaulting Lender shall exercise any such right of setoff,
(x) all amounts so set off shall be paid over immediately to the
Administrative Agent for further application in accordance with the
provisions of Section
2.28(b) and, pending such payment, shall be segregated by
such Defaulting Lender from its other funds and deemed held in
trust for the benefit of the Administrative Agent, the Issuing
Banks, and the Lenders, and (y) the Defaulting Lender shall provide
promptly to the Administrative Agent a statement describing in
reasonable detail the Obligations owing to such Defaulting Lender
as to which it exercised such right of setoff. Each Lender and the
Issuing Bank agrees promptly to notify the Administrative Agent and
the Borrower Representative after any such set-off and any
application made by such Lender or the Issuing Bank, as the case
may be; provided that the failure to give such notice shall not
affect the validity of such set-off and application. Each Lender
and the Issuing Bank agrees to apply all amounts collected from any
such set-off to the Obligations before applying such amounts to any
other Indebtedness or other obligations owed by the Loan Parties
and any of their respective Subsidiaries to such Lender or the
Issuing Bank.
. This
Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and
the same instrument. This Agreement, the Fee Letter, the other Loan
Documents, and any separate letter agreements relating to any fees
payable to the Administrative Agent and its Affiliates constitute
the entire agreement among the parties hereto and thereto and their
affiliates regarding the subject matters hereof and thereof and
supersede all prior agreements and understandings, oral or written,
regarding such subject matters. Delivery of an executed counterpart
to this Agreement or any other Loan Document by facsimile
transmission or by electronic mail in pdf format shall be as
effective as delivery of a manually executed counterpart
hereof.
. All
covenants, agreements, representations and warranties made by the
Borrowers, on behalf of themselves and the other Loan Parties,
herein and in the certificates, reports, notices or other
instruments delivered in connection with or pursuant to this
Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this
Agreement and the other Loan Documents and the making of any Loans
and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent, the Issuing Bank or
any Lender may have had notice or knowledge of any Default or Event
of Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is
outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The
provisions of Sections
2.20, 2.22
and 10.3 and
Article IX shall
survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment
of the Loans, the expiration or termination of the Letters of
Credit and the Commitments or the termination of this Agreement or
any provision hereof.
. Any
provision of this Agreement or any other Loan Document held to be
illegal, invalid or unenforceable in any jurisdiction, shall, as to
such jurisdiction, be ineffective to the extent of such illegality,
invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or
thereof; and the illegality, invalidity or unenforceability of a
particular provision in a particular jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
. Each
of the Administrative Agent, the Issuing Bank and the Lenders
agrees to take normal and reasonable precautions to maintain the
confidentiality of any information relating to the Loan Parties or
any of their Subsidiaries or any of their respective businesses, to
the extent designated in writing as confidential and provided to it
by the Loan Parties or any of their Subsidiaries, other than any
such information that is available to the Administrative Agent, the
Issuing Bank or any Lender on a non-confidential basis prior to
disclosure by the Loan Parties or any of its Subsidiaries, except
that such information may be disclosed (i) to any Related Party of
the Administrative Agent, the Issuing Bank or any such Lender
including accountants, legal counsel and other advisors, (ii) to
the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (iii) to the extent requested by
any regulatory agency or authority purporting to have jurisdiction
over it (including any self-regulatory authority such as the
National Association of Insurance Commissioners), (iv) to the
extent that such information becomes publicly available other than
as a result of a breach of this Section, or which becomes available
to the Administrative Agent, the Issuing Bank, any Lender or any
Related Party of any of the foregoing on a non-confidential basis
from a source other than any Borrower or any of its Subsidiaries,
(v) in connection with the exercise of any remedy hereunder or
under any other Loan Documents or any suit, action or proceeding
relating to this Agreement or any other Loan Documents or the
enforcement of rights hereunder or thereunder, (vi) subject to
execution by such Person of an agreement containing provisions
substantially the same as those of this Section, to (A) any
assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this
Agreement, or (B) any actual or prospective party (or its Related
Parties) to any swap or derivative or other transaction under which
payments are to be made by reference to the Borrowers and their
obligations, this Agreement or payments hereunder, (vii) to any
rating agency, (viii) to the CUSIP Service Bureau or any similar
organization, or (ix) with the consent of the Borrowers. Any Person
required to maintain the confidentiality of any information as
provided for in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such information
as such Person would accord its own confidential information. In
the event of any conflict between the terms of this Section and
those of any other Contractual Obligation entered into with any
Loan Party (whether or not a Loan Document), the terms of this
Section shall govern. The Lead Arranger may, at its own expense,
place customary tombstone announcements and advertisements or
otherwise publicize its engagement hereunder (which may include the
reproduction of any Loan Party’s name and logo and other
publicly available information) in financial and other newspapers
and journals and marketing materials describing its services
hereunder. Further, the Lead Arranger may provide to market data
collectors, such as league table, or other service providers to the
lending industry, information regarding the closing date, size,
type, purpose of, and parties to, the credit facilities established
hereunder.
.
Notwithstanding anything herein to the contrary, if at any time the
interest rate applicable to any Loan, together with all fees,
charges and other amounts which may be treated as interest on such
Loan under applicable law (collectively, the “Charges”), shall exceed
the maximum lawful rate of interest (the “Maximum Rate”) which may
be contracted for, charged, taken, received or reserved by a Lender
holding such Loan in accordance with applicable law, the rate of
interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in
respect of other Loans or periods shall be increased (but not above
the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Rate to the date of
repayment (to the extent permitted by applicable law), shall have
been received by such Lender.
. Each
Borrower represents and warrants that neither it nor any Loan Party
is required to affix its corporate seal to this Agreement or any
other Loan Document pursuant to any Requirement of Law, agrees that
this Agreement is delivered by each Borrower under seal and waives
any shortening of the statute of limitations that may result from
not affixing the corporate seal to this Agreement or such other
Loan Documents.
. The Administrative Agent and each
Lender hereby notify the Loan Parties that, (a) pursuant to the
requirements of the Patriot Act, they are required to obtain,
verify and record information that identifies each Loan Party,
which information includes the name and address of such Loan Party
and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify such Loan Party in
accordance with the Patriot Act, and (b) pursuant to the Beneficial
Ownership Regulation, it is required to obtain a Beneficial
Ownership Certificate.
. In
connection with all aspects of each transaction contemplated hereby
(including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), each Borrower,
on behalf of itself and each other Loan Party, acknowledges and
agrees and acknowledges its Affiliates’ understanding that
(i) (A) the services regarding this Agreement provided by the
Administrative Agent and/or the Lenders are arm’s-length
commercial transactions among the Borrowers, each other Loan Party
and their respective Affiliates, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, (B) each
Borrower and each other Loan Party has consulted their own legal,
accounting, regulatory and tax advisors to the extent they have
deemed appropriate, and (C) each Borrower and each Loan Party is
capable of evaluating and understanding, and understands and
accepts, the terms, risks and conditions of the transactions
contemplated hereby and by the other Loan Documents; (ii) (A) each
of the Administrative Agent and the Lenders is and has been
acting solely as a principal and, except as expressly agreed
in writing by the relevant parties, has not been, is not, and will
not be acting as an advisor, agent or fiduciary for any Borrower,
any Loan Party or any of their respective Affiliates, or any other
Person, and (B) neither the Administrative Agent nor any
Lender has any obligation to any Borrower, any Loan Party or any of
their Affiliates with respect to the transaction contemplated
hereby except those obligations expressly set forth herein and in
the other Loan Documents; and (iii) the Administrative Agent, the
Lenders and their respective Affiliates may be engaged in a broad
range of transactions that involve interests that differ from those
of the Borrowers, the other Loan Parties and their respective
Affiliates, and each of the Administrative Agent and the Lenders
has no obligation to disclose any of such interests to any
Borrower, any other Loan Party or any of their respective
Affiliates. To the fullest extent permitted by law, each of
the Borrowers and each other Loan Party hereby waives and releases
any claims that it may have against the Administrative Agent or any
Lender with respect to any breach or alleged breach of agency or
fiduciary duty in connection with any aspect of any transaction
contemplated hereby.
. The
words “execution,” “execute,”
“signed,” “signature,” and words of like
import in or related to this Agreement or any other document to be
signed in connection with this Agreement and the transactions
contemplated hereby shall be deemed to include electronic
signatures, the electronic matching of assignment terms and
contract formations on electronic platforms approved by the
Administrative Agent, or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent
and as provided for in any applicable law, including the Federal
Electronic Signatures in Global and National Commerce Act, the New
York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions
Act; provided that
notwithstanding anything contained herein to the contrary the
Administrative Agent is under no obligation to agree to accept
electronic signatures in any form or in any format unless expressly
agreed to by the Administrative Agent pursuant to procedures
approved by it.
.
Notwithstanding anything to the contrary in any Loan Document or in
any other agreement, arrangement or understanding among any such
parties, each party hereto acknowledges that any liability of any
Affected Financial Institution arising under any Loan Document, to
the extent such liability is unsecured, may be subject to the
write-down and conversion powers of the applicable Resolution
Authority and agrees and consents to, and acknowledges and agrees
to be bound by:
(a) the
application of any Write-Down and Conversion Powers by the
applicable Resolution Authority to any such liabilities arising
hereunder which may be payable to it by any party hereto that is an
Affected Financial Institution; and
(b) the
effects of any Bail-in Action on any such liability, including, if
applicable:
(i)
a reduction in full
or in part or cancellation of any such liability;
(ii) a
conversion of all, or a portion of, such liability into shares or
other instruments of ownership in such Affected Financial
Institution, its parent undertaking, or a bridge institution that
may be issued to it or otherwise conferred on it, and that such
shares or other instruments of ownership will be accepted by it in
lieu of any rights with respect to any such liability under this
Agreement or any other Loan Document; or
(iii) the
variation of the terms of such liability in connection with the
exercise of the write-down and conversion powers of the applicable
Resolution Authority.
(a) Each Lender (x)
represents and warrants, as of the date such Person became a Lender
party hereto, to, and (y) covenants, from the date such Person
became a Lender party hereto to the date such Person ceases being a
Lender party hereto, for the benefit of, the Administrative Agent,
the Lead Arranger, and their respective Affiliates, and not, for
the avoidance of doubt, to or for the benefit of any Borrower or
any Loan Party, that at least one of the following is and will be
true:
(i) such
Lender is not using “plan assets” (within the meaning
of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA)
of one or more Benefit Plans in connection with the Loans, the
Letters of Credit or the Commitments,
(ii) the
transaction exemption set forth in one or more PTEs, such as PTE
84-14 (a class exemption for certain transactions determined by
independent qualified professional asset managers), PTE 95-60 (a
class exemption for certain transactions involving insurance
company general accounts), PTE 90-1 (a class exemption for certain
transactions involving insurance company pooled separate accounts),
PTE 91-38 (a class exemption for certain transactions involving
bank collective investment funds) or PTE 96-23 (a class exemption
for certain transactions determined by in-house asset managers), is
applicable with respect to such Lender’s entrance into,
participation in, administration of and performance of the Loans,
the Letters of Credit, the Commitments and this
Agreement,
(iii) (A)
such Lender is an investment fund managed by a “Qualified
Professional Asset Manager” (within the meaning of Part VI of
PTE 84-14), (B) such Qualified Professional Asset Manager made the
investment decision on behalf of such Lender to enter into,
participate in, administer and perform the Loans, the Letters of
Credit, the Commitments and this Agreement, (C) the entrance into,
participation in, administration of and performance of the Loans,
the Letters of Credit, the Commitments and this Agreement satisfies
the requirements of sub-sections (b) through (g) of Part I of PTE
84-14 and (D) to the best knowledge of such Lender, the
requirements of subsection (a) of Part I of PTE 84-14 are satisfied
with respect to such Lender’s entrance into, participation
in, administration of and performance of the Loans, the Letters of
Credit, the Commitments and this Agreement, or
(iv) such
other representation, warranty and covenant as may be agreed in
writing between the Administrative Agent, in its sole discretion,
and such Lender.
(b) In addition, unless
sub-clause (i) in the immediately preceding clause (a) is true with
respect to a Lender or such Lender has not provided another
representation, warranty and covenant as provided in sub-clause
(iv) in the immediately preceding clause (a), such Lender further
(x) represents and warrants, as of the date such Person became a
Lender party hereto, to, and (y) covenants, from the date such
Person became a Lender party hereto to the date such Person ceases
being a Lender party hereto, for the benefit of, the Administrative
Agent, the Lead Arranger, and their respective Affiliates, and not,
for the avoidance of doubt, to or for the benefit of any Borrower
or any Loan Party, that:
(i) none of the
Administrative Agent, the Lead Arranger, or any of their respective
Affiliates is a fiduciary with respect to the assets of such Lender
(including in connection with the reservation or exercise of any
rights by the Administrative Agent under this Agreement, any Loan
Document or any documents related to hereto or
thereto),
(ii) the
Person making the investment decision on behalf of such Lender with
respect to the entrance into, participation in, administration of
and performance of the Loans, the Letters of Credit, the
Commitments and this Agreement is independent (within the meaning
of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an
investment adviser, a broker-dealer or other person that holds, or
has under management or control, total assets of at least $50
million, in each case as described in 29 CFR §
2510.3-21(c)(1)(i)(A)-(E),
(iii) the
Person making the investment decision on behalf of such Lender with
respect to the entrance into, participation in, administration of
and performance of the Loans, the Letters of Credit, the
Commitments and this Agreement is capable of evaluating investment
risks independently, both in general and with regard to particular
transactions and investment strategies (including in respect of the
Obligations),
(iv) the
Person making the investment decision on behalf of such Lender with
respect to the entrance into, participation in, administration of
and performance of the Loans, the Letters of Credit, the
Commitments and this Agreement is a fiduciary under ERISA or the
Code, or both, with respect to the Loans, the Letters of Credit,
the Commitments and this Agreement and is responsible for
exercising independent judgment in evaluating the transactions
hereunder, and
(v) no fee or other
compensation is being paid directly to the Administrative Agent,
the Arranger or any their respective Affiliates for investment
advice (as opposed to other services) in connection with the Loans,
the Letters of Credit, the Commitments or this
Agreement.
To the extent that the Loan Documents
provide support, through a guarantee or otherwise, for Hedging
Obligations or any other agreement or instrument that is a QFC
(such support, “QFC Credit Support” and each such QFC a
“Supported QFC”), the parties acknowledge and agree as
follows with respect to the resolution power of the Federal Deposit
Insurance Corporation under the Federal Deposit Insurance Act and
Title II of the Dodd-Frank Wall Street Reform and Consumer
Protection Act (together with the regulations promulgated
thereunder, the “U.S. Special Resolution Regimes”) in
respect of such Supported QFC and QFC Credit Support (with the
provisions below applicable notwithstanding that the Loan Documents
and any Supported QFC may in fact be stated to be governed by the
laws of the State of New York and/or of the United States or any
other state of the United States):
(a) In
the event a Covered Entity that is party to a Supported QFC (each,
a “Covered Party”) becomes subject to a proceeding
under a U.S. Special Resolution Regime, the transfer of such
Supported QFC and the benefit of such QFC Credit Support (and any
interest and obligation in or under such Supported QFC and such QFC
Credit Support, and any rights in property securing such Supported
QFC or such QFC Credit Support) from such Covered Party will be
effective to the same extent as the transfer would be effective
under the U.S. Special Resolution Regime if the Supported QFC and
such QFC Credit Support (and any such interest, obligation and
rights in property) were governed by the laws of the United States
or a state of the United States. In the event a Covered Party or a
BHC Act Affiliate of a Covered Party becomes subject to a
proceeding under a U.S. Special Resolution Regime, Default Rights
under the Loan Documents that might otherwise apply to such
Supported QFC or any QFC Credit Support that may be exercised
against such Covered Party are permitted to be exercised to no
greater extent than such Default Rights could be exercised under
the U.S. Special Resolution Regime if the Supported QFC and the
Loan Documents were governed by the laws of the United States or a
state of the United States. Without limitation of the foregoing, it
is understood and agreed that rights and remedies of the parties
with respect to a Defaulting Lender shall in no event affect the
rights of any Covered Party with respect to a Supported QFC or any
QFC Credit Support.
(b) As used in this
Section 10.19, the following terms have the following
meanings:
(i) “BHC Act
Affiliate” of a party means an “affiliate” (as
such term is defined under, and interpreted in accordance with, 12
U.S.C. 1841(k)) of such party.
(ii) “Covered
Entity” means any of the following:
(A) a “covered
entity” as that term is defined in, and interpreted in
accordance with, 12 C.F.R. §252.82(b);
(B) a “covered
bank” as that term is defined in, and interpreted in
accordance with, 12 C.F.R. §47.3(b); or
(C) a “covered
FSI” as that term is defined in, and interpreted in
accordance with, 12 C.F.R. §382.2(b)
(iii) “Default
Right” has the meaning assigned to that term in, and shall be
interpreted in accordance with, 12 C.F.R. §§252.81, 47.2
or 382.1, as applicable.
(iv) “QFC”
has the meaning assigned to the term “qualified financial
contract” in, and shall be interpreted in accordance with, 12
U.S.C. 5390(c)(8)(D).
(remainder of page left intentionally blank)
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed by their respective
authorized officers under seal as of the day and year first above
written.
BORROWERS:
HIREQUEST,
INC.
HIRE
QUEST, L.L.C.
HQ
LTS CORPORATION
HQ
SNELLING CORPORATION
HQ
LINK CORPORATION
HQ
FINANCIAL CORPORATION
HQ
REAL PROPERTY CORPORATION
HQ
FRANCHISING CORPORATION
HQ
INSURANCE CORPORATION
DRIVERQUEST
2, LLC
HIREQUEST
SECURITY, LLC
|
ATTEST:
/s/ John D.
McAnnar
Name:
John D. McAnnar
Title: Chief
Legal Officer, Vice
President
and Secretary
[SEAL]
|
By:
/s/ Cory
Smith
Name:
Cory Smith
Title:
Chief Financial Officer and Treasurer
|
[Signatures
continue on the following page]
Signature
Page to
Revolving
Credit and Term Loan Agreement (HireQuest)
TRUIST BANK,
as the
Administrative Agent, as the Issuing Bank, as the Swingline
Lender and as a Lender
By:
/s/ Tighe A.
Ittner
Name:
Tighe A. Ittner
Title:
Director
Signature
Page to
Revolving
Credit and Term Loan Agreement (HireQuest)
SCHEDULE I
Applicable Margin
|
Pricing Level
|
Average Excess Availability
|
Tranche A Loans and Swingline Loans that are LIBOR Index Rate
Loans
|
Tranche A Loans and Swingline Loans that are Base Rate
Loans
|
Letter of Credit Fee
|
|
I
|
Greater
than or equal to 66.7% of the Tranche A Revolving
Commitments
|
1.25%
per annum
|
0.25%
per annum
|
1.00%
|
|
II
|
Less
than 66.7% of the Tranche A Revolving Commitments but greater than
or equal to 33.3% of the Tranche A Revolving
Commitments
|
1.50%
per annum
|
0.5%
per annum
|
1.00%
|
|
III
|
Less
than 33.3% of the Revolving Commitments
|
1.75%
per annum
|
0.75%
per annum
|
1.00%
|
SCHEDULE II
Commitment Amounts
|
Lender
|
Tranche A Revolving Commitment Amount
|
Tranche A-1 Revolving Commitment Amount
|
Term Loan Commitment Amount
|
|
Truist
Bank
|
$60,000,000
|
$-0-
|
$3,153,500
|