SUBSIDIARY GUARANTY AGREEMENT
Exhibit 10.2
Execution Version
THIS SUBSIDIARY GUARANTY AGREEMENT (the “ Agreement”), dated as of January 19, 2010, by
and among PRG-XXXXXXX INTERNATIONAL, INC., a Georgia corporation, and PRG-XXXXXXX USA, INC., a
Georgia corporation (collectively, the “ Borrowers”), each of the Subsidiaries of PRGX
listed on Schedule I hereto (each such Subsidiary individually, a “ Guarantor” and
collectively, the “ Guarantors”) and SUNTRUST BANK, a Georgia banking corporation, as
administrative agent (the “ Administrative Agent”) for the several banks and other financial
institutions (the “ Lenders”) from time to time party to the Revolving Credit and Term Loan
Agreement, dated as of the date hereof, by and among the Borrowers, the Lenders, the Administrative
Agent, and SunTrust Bank, as Issuing Bank (as amended, restated, supplemented or otherwise modified
from time to time, the “ Credit Agreement”; capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the Credit Agreement) and for the
other Guaranty Parties.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to establish a revolving
credit facility in favor of and to extend term loans to the Borrowers, and the Issuing Bank has
agreed to establish a letter of credit subfacility in favor of the Borrowers;
WHEREAS, each of the Guarantors is a direct or indirect Subsidiary of PRGX and will derive
substantial benefit from the making of Loans by the Lenders and the issuance of Letters of Credit
by the Issuing Bank; and
WHEREAS, it is a condition precedent to the obligations of the Administrative Agent, the
Issuing Bank and the Lenders under the Credit Agreement that each Guarantor execute and deliver to
the Administrative Agent a Subsidiary Guaranty Agreement in the form hereof, and each Guarantor
wishes to fulfill said condition precedent;
NOW, THEREFORE, in order for the Borrowers and the Guarantors to induce Lenders to extend the
Loans and the Issuing Bank to issue Letters of Credit, and to induce the Lenders and the Issuing
Bank to make the financial accommodations as provided for in the Credit Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, the parties hereto agree as follows:
Section 1. Guarantee. Each Guarantor unconditionally guarantees, jointly
with the other Guarantors and severally, as a primary obligor and not merely as a surety, (i) the
due and punctual payment of all Obligations including, without limitation, (A) the principal of and
premium, if any, and interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in
such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (B) each payment required to be made by the Borrowers
under the Credit Agreement in respect of any Letter of Credit, when and as due, including payments
in respect of reimbursement or disbursements, interest thereon and obligations to provide cash
collateral, and (C) all other Obligations of the Loan Parties to the Guaranty Parties, and (ii) the
due and punctual performance of all covenants, agreements, obligations and liabilities of the Loan
Parties under or pursuant to the Credit Agreement and the other Loan Documents, and under any
agreement with any Specified Hedge Provider or Specified Bank Product Provider evidencing Hedging
Obligations, Treasury Management Obligations or Bank Product Obligations (all the monetary and
other obligations referred to in the preceding
clauses (i) through (ii) being collectively called the “ Guaranteed Obligations”). Each Guarantor
further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part,
without notice to or further assent from such Guarantor, and that such Guarantor will remain bound
upon its guarantee notwithstanding any extension or renewal of any Guaranteed Obligations.
Section 2. Obligations Not Waived. To the fullest extent permitted by
applicable law, each Guarantor waives presentment or protest to, demand of or requirement of
payment from the other Loan Parties of any of the Guaranteed Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment. To the fullest extent permitted
by applicable law, the obligations of each Guarantor hereunder shall not be affected by (i) the
failure of the Administrative Agent or any Lender to assert any claim or demand or to enforce or
exercise any right or remedy against the Borrowers or any other Guarantor under the provisions of
the Credit Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment
or modification of, or any release from any of the terms or provisions of, this Agreement, any
other Loan Document, any guarantee or any other agreement, including with respect to any other
Guarantor under this Agreement, or (iii) the failure to perfect any security interest in, or the
release of, any of the security held by or on behalf of the Administrative Agent or any Guaranty
Party.
Section 3. Guarantee of Payment. Each Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and waives any right
to require that any resort be had by the Administrative Agent or any Guaranty Party to any of the
security held for payment of the Guaranteed Obligations or to any balance of any deposit account or
credit on the books of the Administrative Agent or any Guaranty Party in favor of the Borrowers or
any other Person.
Section 4. No Discharge or Diminishment of Guarantee. The obligations of
each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or
termination for any reason (other than the indefeasible payment in full in cash of the Guaranteed
Obligations), including any claim of waiver, release, surrender, alteration or compromise of any of
the Guaranteed Obligations, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of
the Guaranteed Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected
by the failure of the Administrative Agent or any other Guaranty Party to assert any claim or
demand or to enforce any remedy under the Credit Agreement, any other Loan Document or any other
agreement, by any waiver or modification of any provision of any thereof, by any default, failure
or delay, willful or otherwise, in the performance of the Guaranteed Obligations, or by any other
act or omission that may or might in any manner or to the extent vary the risk of any Guarantor or
that would otherwise operate as a discharge of each Guarantor as a matter of law or equity (other
than the indefeasible payment in full in cash of the Guaranteed Obligations).
Section 5. Defenses of Borrowers Waived. To the fullest extent permitted by
applicable law, each Guarantor waives any defense based on or arising out of any defense of any
Loan Party or the unenforceability of the Guaranteed Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of any Loan Party, other than the final and
indefeasible payment in full in cash of the Guaranteed Obligations. The Administrative Agent and
the Lenders may, at their election during the existence of an Event of Default, foreclose on any
security held by one or more of them by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure, compromise or adjust any part of the
Guaranteed Obligations, make any other accommodation with any other Loan Party or any other
guarantor, without affecting or impairing in any way the liability of any Guarantor hereunder
except to the extent the Guaranteed Obligations have been fully, finally and indefeasibly paid in
cash. Pursuant to applicable law, each Guarantor waives any defense arising out of any such
election even though such election operates, pursuant to applicable law, to impair or to
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extinguish any right of reimbursement or subrogation or other right or remedy of such
Guarantor against the Borrowers or any other Guarantor or guarantor, as the case may be, or any
security.
Section 6. Agreement to Pay; Subordination. In furtherance of the foregoing
and not in limitation of any other right that the Administrative Agent or any other Guaranty Party
has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Borrowers
or any other Loan Party to pay any Guaranteed Obligation when and as the same shall become due,
whether at maturity, by acceleration, after notice of prepayment or otherwise, each Guarantor
hereby promises to and will forthwith pay, or cause to be paid, to the Administrative Agent for the
benefit of the Guaranty Parties in cash the amount of such unpaid Guaranteed Obligation. Upon
payment by any Guarantor of any sums to the Administrative Agent, all rights of such Guarantor
against any Loan Party arising as a result thereof by way of right of subrogation, contribution,
reimbursement, indemnity under applicable law or otherwise shall in all respects be subordinate and
junior in right of payment to the prior indefeasible payment in full in cash of all the Guaranteed
Obligations. In addition, any indebtedness of any Loan Party now or hereafter held by any
Guarantor is hereby subordinated in right of payment to the prior payment in full in cash of the
Guaranteed Obligations. If any amount shall erroneously be paid to any Guarantor on account of (i)
such subrogation, contribution, reimbursement, indemnity or similar right or (ii) during the
existence of an Event of Default, any such indebtedness of any Loan Party, such amount shall be
held in trust for the benefit of the Guaranty Parties and shall forthwith be paid to the
Administrative Agent to be credited against the payment of the Guaranteed Obligations, whether
matured or unmatured, in accordance with the terms of the Loan Documents.
Section 7. Information. Each Guarantor assumes all responsibility for being
and keeping itself informed of other Loan Parties’ financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,
scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that
none of the Administrative Agent or the other Guaranty Parties will have any duty to advise any of
the Guarantors of information known to it or any of them regarding such circumstances or risks.
Section 8. Indemnity and Subrogation. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law or otherwise (but subject
to Section 6 and Section 10 of this Agreement), the Borrowers agree that (a) in the
event a payment shall be made by any Guarantor under this Agreement, the Borrowers shall jointly
and severally indemnify such Guarantor for the full amount of such payment and such Guarantor shall
be subrogated to the rights of the person to whom such payment shall have been made to the extent
of such payment and (b) in the event any assets of any Guarantor shall be sold pursuant to any
applicable security agreement or similar instrument or agreement to satisfy a claim of any Guaranty
Party under this Agreement, the Borrowers shall jointly and severally indemnify such Guarantor in
an amount equal to the greater of the book value or the fair market value of the assets so sold.
Section 9. Contribution and Subrogation. Each Guarantor (a
“ Contributing Guarantor”) agrees (subject to
Section 6 of this Agreement) that, in
the event a payment shall be made by any other Guarantor under this Agreement or assets of any
other Guarantor shall be sold pursuant to any applicable pledge agreement, security agreement or
similar instrument or agreement to satisfy a claim of any Guaranty Party and such other Guarantor
(the “ Claiming Guarantor”) shall not have been fully indemnified by the Borrowers as
provided in Section 8 of this Agreement, each Contributing Guarantor shall jointly and
severally indemnify the Claiming Guarantor in an amount equal to the amount of such payment or the
greater of the book value or the fair market value of such assets, as the case may be, in each case
multiplied by a fraction of which the numerator shall be the net worth of the Contributing
Guarantor on the date hereof and the denominator shall be the aggregate net worth of all the
Guarantors on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to
Section 21 of this
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Agreement, the date of the Supplement hereto executed and delivered by such Guarantor). Any
Contributing Guarantor making any payment to a Claiming Guarantor pursuant to this Section
9 shall be subrogated to the rights of such Claiming Guarantor under Section 8 of this
Agreement to the extent of such payment.
Section 10. Subordination. Notwithstanding any provision of this Agreement
to the contrary, all rights of the Guarantors under Section 8 and Section 9 of this
Agreement and all other rights of indemnity, contribution or subrogation under applicable law or
otherwise shall be fully subordinated to the indefeasible payment in full in cash of the Guaranteed
Obligations. No failure on the part of the Borrowers or any Guarantor to make the payments
required by Section 8 and Section 9 of this Agreement (or any other payments
required under applicable law or otherwise) shall, in any respect, limit the obligations and
liabilities of any Guarantor with respect to its obligations hereunder, and each Guarantor shall
remain liable for the full amount of the obligations of such Guarantor hereunder.
Section 11. Representations and Warranties. Each Guarantor represents and
warrants as to itself that all representations and warranties relating to it (as a Subsidiary of
PRGX) contained in the Credit Agreement are true and correct on and as of the date such
representation is made or deemed to be made under the Credit Agreement (except insofar as any such
representation or warranty expressly relates to some other date).
Section 12. Termination. The guarantees made hereunder (i) shall terminate
when no Lender has a Commitment under the Credit Agreement, the Issuing Bank has no commitment to
issue any Letter of Credit under the Credit Agreement and no Guaranteed Obligation remains unpaid
or outstanding (except to the extent such Guaranteed Obligations consist solely of inchoate
indemnity obligations, Treasury Management Obligations and/or Cash Collateralized Letters of Credit
complying with the terms and conditions of the Credit Agreement) and (ii) shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of the
Guaranteed Obligations described in clause (i) immediately preceding is rescinded or must otherwise
be restored by any Guaranty Party or any Guarantor upon the bankruptcy or reorganization of the
Borrowers, any Guarantor or otherwise. In connection with the foregoing, the Administrative Agent
shall execute and deliver to such Guarantor or Guarantor’s designee, at such Guarantor’s expense,
any documents or instruments which such Guarantor shall reasonably request from time to time to
evidence such termination and release.
Section 13. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party; and all covenants, promises and agreements by or on
behalf of the Guarantors that are contained in this Agreement shall bind and inure to the benefit
of each party hereto and their respective successors and assigns. This Agreement shall become
effective as to any Borrower and any Guarantor, respectively, when a counterpart hereof executed on
behalf of such Borrower or such Guarantor, as the case may be, shall have been delivered to the
Administrative Agent, and a counterpart hereof shall have been executed and delivered on behalf of
the Administrative Agent, and thereafter shall be binding upon such Borrower, such Guarantor and
the Administrative Agent and their respective successors and assigns, and shall inure to the
benefit of such Borrower, such Guarantor, the Administrative Agent and the other Guaranty Parties,
and their respective successors and assigns, except that no Borrower or Guarantor shall have the
right to assign its rights or obligations hereunder or any interest herein (and any such attempted
assignment shall be void). If all of the capital stock of a Guarantor is sold, transferred or
otherwise disposed of pursuant to a transaction permitted by the Credit Agreement, such Guarantor
shall be released from its obligations under this Agreement without further action. This Agreement
shall be construed as a separate agreement with respect to each Guarantor and may be amended,
modified, supplemented, waived or released with respect to any Guarantor without the approval of
any other Guarantor and without affecting the obligations of any other Guarantor hereunder.
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Section 14. Waivers; Amendment.
(a) No failure or delay of the Administrative Agent of any kind in exercising any power or
right hereunder 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 a right or
power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and of the Administrative Agent hereunder and of the Lenders under the other Loan
Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise
have. No waiver of any provision of this Agreement or consent to any departure by any Guarantor
therefrom shall in any event be effective unless the same shall be permitted by subsection (b)
below, and then such waiver and consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on any Guarantor in any case shall entitle such
Guarantor to any other or further notice in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to a written agreement entered into between the Guarantors with respect to which such
waiver, amendment or modification relates, the Borrowers and the Administrative Agent, with the
prior written consent of the Required Lenders (except as otherwise provided in the Credit
Agreement).
Section 15. Notices. All communications and notices hereunder shall be in
writing and given as provided in Section 10.1 of the Credit Agreement. All communications and
notices hereunder to each Guarantor shall be given to it at its address set forth on Schedule
I attached hereto.
Section 16. Severability. Any provision of this Agreement 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.
Section 17. Counterparts; Integration. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when taken together
shall constitute a single contract (subject to Section 13 of this Agreement), and shall
become effective as provided in Section 13 of this Agreement. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Agreement. This Agreement constitutes the entire agreement
among the parties hereto regarding the subject matters hereof and supersedes all prior agreements
and understandings, oral or written, regarding such subject matter.
Section 18. Rules of Interpretation. The rules of interpretation specified
in Section 1.4 of the Credit Agreement shall be applicable to this Agreement. Section and other
headings herein are included for ease of reference only, and shall not have any substantive effect.
Section 19. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement 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 Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the non-exclusive jurisdiction of the United States District Court of the Northern
District of Georgia, and the Business Case Division of the Xxxxxx County Superior Court located in
Atlanta, Georgia, and any appellate court from any thereof, in any action or proceeding arising out
of or relating to this
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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 Georgia state court or, to the extent permitted by applicable law, such
Federal court. Each Guarantor 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 shall affect any right that the Administrative
Agent, the Issuing Bank or any other Guaranty Party may otherwise have to bring any action or
proceeding relating to this Agreement against any Guarantor or its properties in the courts of any
jurisdiction.
(c) Each Guarantor 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 the first
sentence of paragraph (b) of this Section and brought in any court referred to in said first
sentence of paragraph (b) of this Section. Each party 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 Guarantor irrevocably consents to the service of process in the manner provided for
notices in Section 10.1 of the Credit Agreement. Nothing in this Agreement will affect the right
of the Administrative Agent or any other Guaranty Party to serve process in any other manner
permitted by law.
Section 20. Waiver of Jury Trial. 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 (i) 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 (ii) 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.
Section 21. Additional Guarantors. Pursuant to Section 5.11 of the Credit
Agreement, certain Subsidiaries that were not Guarantors as of the Closing Date (each hereinafter
referred to as an “ Additional Subsidiary”) are required pursuant to the Credit Agreement to
become a Guarantor. Upon execution and delivery after the date hereof by the Administrative Agent
and such Additional Subsidiary of an instrument in the form of Annex 1, such Additional
Subsidiary shall become a Guarantor hereunder with the same force and effect as if originally named
as a Guarantor herein. The execution and delivery of any instrument adding an additional Guarantor
as a party to this Agreement shall not require the consent of any Borrower or any other Guarantor
hereunder. The rights and obligations of each Guarantor hereunder shall remain in full force and
effect notwithstanding the addition of any new Guarantor as a party to this Agreement.
Section 22. Right of Setoff. If an Event of Default shall have occurred and
be continuing, each Guaranty Party is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to setoff and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other Indebtedness at any time owing by such
Guaranty Party to or for the credit or the account of any Guarantor against any or all the
obligations of such Guarantor now or hereafter existing under this Agreement and the other Loan
Documents held by such Guaranty Party, irrespective of
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whether or not such Person shall have made any demand under this Agreement or any other Loan
Document and although such obligations may be unmatured. The rights of each Guaranty Party under
this Section 22 of this Agreement are in addition to other rights and remedies (including
other rights of setoff) that such Guaranty Party may have.
Section 23. Savings Clause.
(a) It is the intent of each Guarantor and the Administrative Agent that each Guarantor’s
maximum obligations hereunder shall be, but not in excess of:
(i) in a case or proceeding commenced by or against any Guarantor under the
provisions of Title 11 of the United States Code, 11 U.S.C. §§101 et seq. (the
“ Bankruptcy Code”) on or within two years from the date on which any of the
Guaranteed Obligations are incurred, the maximum amount which would not otherwise cause the
Guaranteed Obligations (or any other obligations of such Guarantor owed to the
Administrative Agent or the other Guaranty Parties) to be avoidable or unenforceable against
such Guarantor under (i) Section 548 of the Bankruptcy Code or (ii) any state fraudulent
transfer or fraudulent conveyance act or statute applied in such case or proceeding by
virtue of Section 544 of the Bankruptcy Code; or
(ii) in a case or proceeding commenced by or against any Guarantor under the
Bankruptcy Code subsequent to two years from the date on which any of the Guaranteed
Obligations are incurred, the maximum amount which would not otherwise cause the Guaranteed
Obligations (or any other obligations of such Guarantor to the Administrative Agent or the
other Guaranty Parties) to be avoidable or unenforceable against such Guarantor under any
state fraudulent transfer or fraudulent conveyance act or statute applied in any such case
or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(iii) in a case or proceeding commenced by or against any Guarantor under any
law, statute or regulation other than the Bankruptcy Code (including, without limitation,
any other bankruptcy, reorganization, arrangement, moratorium, readjustment of debt,
dissolution, liquidation or similar debtor relief laws), the maximum amount which would not
otherwise cause the Guaranteed Obligations (or any other obligations of such Guarantor to
the Administrative Agent or the other Guaranty Parties) to be avoidable or unenforceable
against such Guarantor under such law, statute or regulation including, without limitation,
any state fraudulent transfer or fraudulent conveyance act or statute applied in any such
case or proceeding.
(b) The substantive laws under which the possible avoidance or unenforceability of the
Guaranteed Obligations (or any other obligations of such Guarantor to the Administrative Agent or
the other Guaranty Parties) as may be determined in any case or proceeding shall hereinafter be
referred to as the “ Avoidance Provisions”. To the extent set forth in Section
23(a)(i), (ii), and (iii) of this Agreement, but only to the extent that the
Guaranteed Obligations would otherwise be subject to avoidance or found unenforceable under the
Avoidance Provisions, if any Guarantor is not deemed to have received valuable consideration, fair
value or reasonably equivalent value for the Guaranteed Obligations, or if the Guaranteed
Obligations would render such Guarantor insolvent, or leave such Guarantor with an unreasonably
small capital to conduct its business, or cause such Guarantor to have incurred debts (or to have
intended to have incurred debts) beyond its ability to pay such debts as they mature, in each case
as of the time any of the Guaranteed Obligations are deemed to have been incurred under the
Avoidance Provisions and after giving effect to the contribution by such Guarantor, the maximum
Guaranteed Obligations for which such Guarantor shall be liable hereunder shall be reduced to that
amount which, after giving effect thereto, would not cause the Guaranteed Obligations (or any other
obligations of such
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Guarantor to the Administrative Agent or the other Guaranty Parties), as so
reduced, to be subject to
avoidance or unenforceability under the Avoidance Provisions.
(c) This Section 23 is intended solely to preserve the rights of the Administrative
Agent and the other Guaranty Parties hereunder to the maximum extent that would not cause the
Guaranteed Obligations of such Guarantor to be subject to avoidance or unenforceability under the
Avoidance Provisions, and neither the Guarantors nor any other Person shall have any right or claim
under this Section 23 as against the Administrative Agent or the other Guaranty Parties
that would not otherwise be available to such Person under the Avoidance Provisions.
Section 24. Defined Terms. For purposes of this Agreement, the following
terms shall have the following meanings:
“ Guaranty Parties” means, collectively, the Administrative Agent, the Lenders, the
Issuing Bank, the Specified Hedge Providers and the Specified Bank Product Providers.
“ Specified Bank Product Provider” means any Lender or any Affiliate of a Lender to
which any Loan Party owes (i) Treasury Management Obligations or (ii) Bank Product Obligations, if
at the date of entering into an agreement to provide such services or products, such Person was a
Lender or an Affiliate of a Lender and such Person executes and delivers to the Administrative
Agent a letter agreement in form and substance acceptable to the Administrative Agent pursuant to
which such person (i) appoints the Administrative Agent as its agent under the applicable Loan
Documents and (ii) agrees to be bound by the provisions of Article IX and X of the Credit
Agreement.
“ Specified Hedge Provider” means each party to a Hedging Transaction entered into to
limit interest rate or fee fluctuations with respect to the Loans and Letters of Credit if at the
date of entering into such Hedging Transaction such person was a Lender or an Affiliate of a Lender
and such person executes and delivers to the Administrative Agent a letter agreement in form and
substance acceptable to the Administrative Agent pursuant to which such person (i) appoints the
Administrative Agent as its agent under the applicable Loan Documents and (ii) agrees to be bound
by the provisions of Section 7.2(a), and Articles IX and X, of the Credit Agreement.
(Signatures on following pages)
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and
year first above written.
| PRG-XXXXXXX AUSTRALIA, INC., a Georgia corporation |
|||||
| By: | /s/ Xxxxxx X. Xxx | ||||
| Name: | Xxxxxx X. Xxx | ||||
| Title: | Chief Financial Officer and Treasurer | ||||
| [CORPORATE SEAL] | |||||
PRG-XXXXXXX BELGIUM, INC., a Georgia corporation |
|||||
| By: | /s/ Xxxxxx X. Xxx | ||||
| Name: | Xxxxxx X. Xxx | ||||
| Title: | Chief Financial Officer and Treasurer | ||||
| [CORPORATE SEAL] | |||||
| THE PROFIT RECOVERY GROUP GERMANY, INC., a Georgia corporation |
|||||
| By: | /s/ Xxxxxx X. Xxx | ||||
| Name: | Xxxxxx X. Xxx | ||||
| Title: | Chief Financial Officer and Treasurer | ||||
| [CORPORATE SEAL] | |||||
| PRG-XXXXXXX FRANCE, INC., a Georgia corporation |
|||||
| By: | /s/ Xxxxxx X. Xxx | ||||
| Name: | Xxxxxx X. Xxx | ||||
| Title: | Chief Financial Officer and Treasurer | ||||
| [CORPORATE SEAL] | |||||
(Signatures continue on following page)
| THE PROFIT RECOVERY GROUP NETHERLANDS, INC., a Georgia corporation |
|||||
| By: | /s/ Xxxxxx X. Xxx | ||||
| Name: | Xxxxxx X. Xxx | ||||
| Title: | Chief Financial Officer and Treasurer | ||||
| [CORPORATE SEAL] | |||||
| THE PROFIT RECOVERY GROUP NEW ZEALAND, INC., a Georgia corporation |
|||||
| By: | /s/ Xxxxxx X. Xxx | ||||
| Name: | Xxxxxx X. Xxx | ||||
| Title: | Chief Financial Officer and Treasurer | ||||
| [CORPORATE SEAL] | |||||
| PRG-XXXXXXX SCANDINAVIA, INC., a Georgia corporation |
|||||
| By: | /s/ Xxxxxx X. Xxx | ||||
| Name: | Xxxxxx X. Xxx | ||||
| Title: | Chief Financial Officer and Treasurer | ||||
| [CORPORATE SEAL] | |||||
| PRG-XXXXXXX PORTUGAL, INC., a Georgia corporation |
|||||
| By: | /s/ Xxxxxx X. Xxx | ||||
| Name: | Xxxxxx X. Xxx | ||||
| Title: | Chief Financial Officer and Treasurer | ||||
| [CORPORATE SEAL] | |||||
(Signatures continue on following page)
| PRG-XXXXXXX SWITZERLAND, INC., a Georgia corporation |
|||||
| By: | /s/ Xxxxxx X. Xxx | ||||
| Name: | Xxxxxx X. Xxx | ||||
| Title: | Chief Financial Officer and Treasurer | ||||
| [CORPORATE SEAL] | |||||
| THE PROFIT RECOVERY GROUP SPAIN, INC., a Georgia corporation |
|||||
| By: | /s/ Xxxxxx X. Xxx | ||||
| Name: | Xxxxxx X. Xxx | ||||
| Title: | Chief Financial Officer and Treasurer | ||||
| [CORPORATE SEAL] | |||||
| PRG-XXXXXXX EUROPE, INC., a Georgia corporation |
|||||
| By: | /s/ Xxxxxx X. Xxx | ||||
| Name: | Xxxxxx X. Xxx | ||||
| Title: | Chief Financial Officer and Treasurer | ||||
| [CORPORATE SEAL] | |||||
| THE PROFIT RECOVERY GROUP ASIA, INC., a Georgia corporation |
|||||
| By: | /s/ Xxxxxx X. Xxx | ||||
| Name: | Xxxxxx X. Xxx | ||||
| Title: | Chief Financial Officer and Treasurer | ||||
| [CORPORATE SEAL] | |||||
(Signatures continue on following page)
| PRG-XXXXXXX CANADA, LLC, a Georgia limited liability company |
|||||
| By: | /s/ Xxxxxx X. Xxx | (SEAL) | |||
| Name: | Xxxxxx X. Xxx | ||||
| Title: | Chief Financial Officer, Treasurer, and Controller | ||||
| PRG INTERNATIONAL, INC., a Georgia corporation |
|||||
| By: | /s/ Xxxxxx X. Xxx | ||||
| Name: | Xxxxxx X. Xxx | ||||
| Title: | Chief Financial Officer and Treasurer | ||||
| [CORPORATE SEAL] | |||||
| PRGDS, LLC, a Georgia limited liability company |
|||||
| By: | /s/ Xxxxxx X. Xxx | (SEAL) | |||
| Name: | Xxxxxx X. Xxx | ||||
| Title: | Chief Financial Officer and Treasurer | ||||
| PRGFS, INC., a Delaware corporation |
|||||
| By: | /s/ Xxxxxx X. Xxx | ||||
| Name: | Xxxxxx X. Xxx | ||||
| Title: | Chief Financial Officer and Treasurer | ||||
| [CORPORATE SEAL] | |||||
| PRGTS, LLC, a Georgia limited liability company |
|||||
| By: | /s/ Xxxxxx X. Xxx | (SEAL) | |||
| Name: | Xxxxxx X. Xxx | ||||
| Title: | Chief Financial Officer and Treasurer | ||||
(Signatures continue on following page)
| THE PROFIT RECOVERY GROUP MEXICO, INC., a Georgia corporation |
||||||
| By: | /s/ Xxxxxx X. Xxx | |||||
| Name: | Xxxxxx X. Xxx | |||||
| Title: | Chief Financial Officer and Treasurer | |||||
| [CORPORATE SEAL] | ||||||
| PRG-XXXXXXX BRASIL, LLC, a Georgia limited liability company |
||||||
| By: | /s/ Xxxxxx X. Xxx | (SEAL) | ||||
| Name: | Xxxxxx X. Xxx | |||||
| Title: | Chief Financial Officer and Treasurer | |||||
| HS&A ACQUISITION — UK, INC., a Texas corporation |
||||||
| By: | /s/ Xxxxxx X. Xxx | |||||
| Name: | Xxxxxx X. Xxx | |||||
| Title: | Chief Financial Officer and Treasurer | |||||
| [CORPORATE SEAL] | ||||||
| PRG-XXXXXXX INTERNATIONAL, INC., a Georgia corporation |
||||||
| By: | /s/ Xxxxxx X. Xxx | |||||
| Name: | Xxxxxx X. Xxx | |||||
| Title: | Chief Financial Officer and Treasurer | |||||
| [CORPORATE SEAL] | ||||||
| PRG-XXXXXXX USA, INC., a Georgia corporation |
||||||
| By: | /s/ Xxxxxx X. Xxx | |||||
| Name: | Xxxxxx X. Xxx | |||||
| Title: | Chief Financial Officer and Treasurer | |||||
| [CORPORATE SEAL] | ||||||
(Signatures continue on following page)
| SUNTRUST BANK, as Administrative Agent |
|||||
| By: | /s/ D. Xxxxx Xxxxxxxx | ||||
| Name: | D. Xxxxx Xxxxxxxx | ||||
| Title: | First Vice President | ||||
(End of signatures)
SCHEDULE I TO THE
SUBSIDIARY GUARANTY AGREEMENT
SUBSIDIARY GUARANTY AGREEMENT
| Guarantors | Address | |
PRG-Xxxxxxx Australia, Inc.
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer and Treasurer; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
|
PRG-Xxxxxxx Belgium, Inc.
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer and Treasurer; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
|
The Profit Recovery Group Germany, Inc.
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer and Treasurer; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
|
PRG-Xxxxxxx France, Inc.
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer and Treasurer; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
|
The Profit Recovery Group Netherlands, Inc.
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer and Treasurer; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
| Guarantors | Address | |
The Profit Recovery Group New Zealand, Inc.
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer and Treasurer; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
|
PRG-Xxxxxxx Scandinavia, Inc.
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer and Treasurer; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
|
PRG-Xxxxxxx Portugal, Inc.
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer and Treasurer; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
|
PRG-Xxxxxxx Switzerland, Inc.
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer and Treasurer; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
|
The Profit Recovery Group Spain, Inc.
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer and Treasurer; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
| Guarantors | Address | |
PRG-Xxxxxxx Europe, Inc.
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer and Treasurer; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
|
The Profit Recovery Group Asia, Inc.
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer and Treasurer; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
|
PRG-Xxxxxxx Canada, LLC
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer, Treasurer and Controller; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
|
PRG International, Inc.
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer and Treasurer; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
|
PRGDS, LLC
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer and Treasurer; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
| Guarantors | Address | |
PRGFS, Inc.
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer; and Xxxxxx X. Xxxxxx, Esq., Vice President and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
|
PRGTS, LLC
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer and Treasurer; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
|
The Profit Recovery Group Mexico, Inc.
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer and Treasurer; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
|
PRG-Xxxxxxx Brasil, LLC
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer and Treasurer; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
|
HS&A Acquisition — UK, Inc.
|
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000 Attention: Xx. Xxxxxx Xxx, Chief Financial Officer and Treasurer; and Xxxxxx X. Xxxxxx, Esq., Senior Vice President, General Counsel and Secretary Telecopy Number: (000) 000-0000 E-Mail: xxxxxx.xxx@xxxx.xxx xxx.xxxxxx@xxxx.xxx |
